IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40861
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER LOPEZ CANTU,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-00-CV-154
USDC No. B-97-CR-20-1
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December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Javier Lopez Cantu, federal prisoner # 74613-079, appeals
the district court's denial of his 28 U.S.C. § 2255 motion, in
which he challenged his 1996 sentence for conspiracy to possess
with intent to distribute 1,000 kilograms or more of marijuana.
Cantu argues that his sentence violates Apprendi v. New Jersey,
530 U.S. 466 (2000), because the jury was not instructed to find
a drug quantity.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-40861
-2-
The district court granted Cantu a certificate of
appealability ("COA") because this court had not yet addressed
whether Apprendi can be applied retroactively to an initial 28
U.S.C. § 2255 motion. This court recently concluded that
Apprendi does not apply retroactively to cases on initial
collateral review. See United States v. Brown, 305 F.3d 304, 310
(5th Cir. 2002). In Brown, we stated that "Apprendi creates a
new rule of criminal procedure which is not retroactively
applicable to initial petitions under [28 U.S.C.] § 2255." Id.
Therefore, Cantu's Apprendi claim fails.
Cantu also argues that his trial and appellate counsel
rendered ineffective assistance. We do not reach these issues
because Cantu has not expressly sought to expand the district
court's grant of COA to include them. See United States v.
Kimler, 150 F.3d 429, 431 (5th Cir. 1998)(party must expressly
seek a COA on additional issues not certified by the district
court).
AFFIRMED.