UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JASON CORY BARBER,

Defendant-Appellant.	No. 05-2384

(D.C. Nos. CIV-05-1124 JC/KBM and CR-97-446 JC)

(D. N.M.)

ORDER DENYING CERTIFICATE

OF APPEALABILITY

Before KELLY, McKAY, and LUCERO, Circuit Judges.

Jason Cory Barber, a federal prisoner appearing pro se, requests a certificate of appealability ("COA") to appeal the district court's denial of his 28 U.S.C. § 2255 habeas petition. For substantially the same reasons as set forth by the district court, we DENY a COA and DISMISS.

Having pled guilty to one count of possession with intent to distribute 100 grams or more of methamphetamine in violation of 21 U.S.C. § 841(b)(1)(B), and sentenced to 188 months in prison followed by four years supervised release, Barber appealed his sentence to this court. We affirmed. See United States v. Barber, No. 98-2106, 1999 WL 152294, at *1 (10th Cir. Mar. 22, 1999) (unpublished). In concluding that his sentence was reasonable based on his plea agreement, our court denied all relief. Id. His petition for certiorari was denied on October 4, 1999. See Barber v. United States, 528 U.S. 864 (1999).

Following the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), Barber filed the instant § 2255 petition in federal district court raising three arguments. He argued that (1) his sentence must be vacated under Booker; (2) AEDPA's statute of limitations provisions and restriction on filing second or successive motions violates the Suspension Clause; and (3) his counsel provide ineffective assistance.

The district court rejected Barber's Booker argument because Booker is not retroactively applicable on collateral review. It dismissed Barber's ineffective assistance of counsel claim on the finding that his counsel's representation was not constitutionally deficient. It declined to address Barber's challenge to AEDPA's procedural requirements on the basis of its conclusion that Barber's substantive claims were meritless. A subsequent application for a COA was denied. Having failed to secure a COA from that court, Barber now seeks a COA from us.1

In his COA request, Barber renews Booker requires that he be resentenced. Given our holding that Booker does not apply retroactively on collateral review, we deny this request. See United States v. Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005).

Second, he contends that the district court erred by sua sponte dismissing his § 2255 petition as untimely. Although the district court noted that Barber's petition appeared to be untimely, it expressly did not deny the petition on this procedural ground. Rather, it denied his claims on the merits. As such, this argument is irrelevant.

Barber's application for a COA is DENIED. Barber's motion to proceed on appeal in forma pauperis is GRANTED.

ENTERED FOR THE COURT

Carlos F Lucero

Circuit Judge