06-2132 -- U.S. v. Callejas -- 04/10/2007

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,	No. 06-2132
v.	District of New Mexico
CARMELO CALLEJAS, Defendant-Appellant.	(D.C. No. CR-00-732 BB)

ORDER AND JUDGMENT^(*)

Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.

A jury convicted Carmelo Callejas in 2001 on five counts of criminal conduct. He was sentenced to 248 months in prison. This Court has twice affirmed that sentence--once on direct appeal, United States v. Callejas, 66 Fed. App'x 826 (10th Cir. 2003) (unpublished), and again in dismissing Mr. Callejas's application for a certificate of appealability under 28 U.S.C. 2255, United States v. Callejas, 137 Fed. App'x 175 (10th Cir. 2005) (unpublished). Following the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), Mr. Callejas brought a third challenge to his sentence, which he styled as a "Motion to Eliminate Enhancements and Reduce Sentence." The district court dismissed his motion, holding that Mr. Callejas could collaterally challenge his sentence only via 2255. Mem. & Order, 1-3.

The district court is correct. Section 2255 provides the exclusive means for collateral attack of a federal criminal sentence. Baker v. Sheriff of Santa Fe County, 477 F.2d 118, 119 (10th Cir. 1973). We note, however, that even were Mr. Callejas to petition this Court to authorize a second 2255 application, as required by 28 U.S.C. 2244(3), his petition would fail. Defendants may not raise a Booker claim in a second or successive 2255 motion, as Booker did not announce a new, retroactive rule of constitutional law. Bey v. United States, 399 F.3d 1266, 1268-69 (10th Cir. 2005).

The judgment of the United States District Court for the District of New Mexico is AFFIRMED. The government's motion to dismiss is DENIED.

Entered for the Court,

Michael W. McConnell

Circuit Judge

FOOTNOTES
Click footnote number to return to corresponding location in the text.

^*.After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10^th Cir. R. 34.1(G). This case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10^th Cir. R. 32.1.

(13008 bytes)

(7138 bytes)

Comments to: WebMaster, ca10 [at] washburnlaw.edu.
Updated: April 11, 2007.
HTML markup © 2007, Washburn University School of Law.
URL: http://ca10.washburnlaw.edu/cases/2007/04/06-2132.htm.