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(D. Kansas)


(D.C. No. 02-CR-10185-01-MLB)


Before EBEL, McKAY, and HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Shea Van Kirk, a federal prisoner proceeding pro se, seeks a certificate of appealability ("COA") in order to challenge the district court's denial of his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Because Mr. Van Kirk has failed to make "a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), we deny his request and dismiss the appeal.

In January 2004, Mr. Van Kirk pleaded guilty to a single count of being a "felon in possession of firearms," charge in violation of 18 U.S.C. § 922(g)(1). Mr. Van Kirk did not appeal his conviction.

In October 2004, he filed a motion pursuant to § 2255 seeking to have the district court correct his sentence pursuant to Blakely v. Washington, 124 S. Ct. 2531 (2004) and Apprendi v. New Jersey, 530 U.S. 466 (2000). He alleges that his unenhanced sentencing range was 51-63 months, and that the district court improperly imposed a 120-month sentence, based on findings made by a preponderance of the evidence. The district court rejected this argument, finding nothing to suggest Blakely and Apprendi apply to defendants seeking relief under § 2255 whose convictions were final when the Supreme Court decided Blakely in June 2004.

We agree with the district court. We have held that neither Apprendi, Blakely nor United States v. Booker, 125 S. Ct. 738 (2005), announced a new rule of constitutional law made retroactive by the Supreme Court on collateral review. See, e.g., United States v. Bellamy, No. 04-5145, 2005 WL 1406176, at *3 (10th Cir. June 16, 2005) (concluding "Booker does not apply retroactively to initial habeas petitions"); United States v. Price, 400 F.3d 844, 849 (10th Cir. 2005), (holding "Blakely does not apply retroactively to convictions that were already final at the time the [Supreme] Court decided Blakely, June 24, 2004."); United States v. Mora, 293 F.3d 1213, 1219 (10th Cir. 2002) (stating that "Apprendi is not a watershed decision and hence is not retroactively applicable to initial habeas petitions").

Accordingly, we DENY Mr. Van Kirk's request for a COA, and DISMISS the matter.

Entered for the Court,

Robert H. Henry

Circuit Judge

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*. This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.

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