[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 1, 2005
No. 04-14938 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-02269-CV-T-27TGW
JEFFERY CHARLES COOK,
Petitioner-Appellant,
versus
RANDY BRYANT, Warden,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 1, 2005)
Before BARKETT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Jeffery Charles Cook, a Florida prisoner proceeding pro se, appeals the
district court’s denial of his 28 U.S.C. § 2254 habeas petition. We granted a
certificate of appealability (“COA”) on the following issues:
(1) Are either Blakely v. Washington, 542 U.S. ___, 124 S.Ct.
2531, 159 L.Ed.2d 403 (2004), or United States v. Booker, 543
U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), retroactive to
cases on collateral review pursuant to Teague v. Lane, 489 U.S.
288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)?
(2) If so, is the appellant able to challenge his sentences on
collateral review pursuant to 28 U.S.C. § 2244(d)(1)(C)?
On appeal, Cook argues that justice requires retroactive application to all
who are similarly situated. He asserts that he did not stipulate to any of the
relevant facts used to enhance his sentence. Since granting the COA we have held
in United States v. Varela, 400 F.3d 864, 868 (11th Cir. 2005) and United States v.
Swindall, 107 F.3d 831, 834 n.4 (11th Cir. 1997) that Booker is not retroactively
applicable to cases on collateral review. Thus, the district court did not err in
denying Cook’s § 2254 petition. See Varela, 400 F.3d at 868; Swindall, 107 F.3d
at 834 n.4.1 Because the first question is answered negatively, we need not address
the second question.
AFFIRMED.
1
As in Varela, after we issued a COA, the Supreme Court further explained in Booker
that the holding in Blakely applies to the Federal Sentencing Guidelines. See Varela, 400 F.3d at
865 n.1. Thus, to the extent Cook’s appeal turns on the application of Blakely, it also turns on
the application of Booker.
2