                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          March 24, 2006
                                TENTH CIRCUIT                          Elisabeth A. Shumaker
                                                                           Clerk of Court

UNITED STATES OF AMERICA,

        Plaintiff-Appellee,
                                                         No. 05-1340
v.                                                  (District of Colorado)
                                                 (D.C. Nos. 04-WM-1511 and
GEORGE C. JONES, JR.,                                  98-CR-217-WM)

        Defendant-Appellant.




                                      ORDER


Before MURPHY, SEYMOUR and McCONNELL, Circuit Judges.



      George C. Jones, Jr., appearing pro se, seeks to appeal the district court’s

denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.

The matter is before this court on Jones’ request for a certificate of appealability

(“COA”). 28 U.S.C. § 2253(c)(1)(B) (providing no appeal may be taken from a

“final order in a proceeding under section 2255” unless the movant first obtains a

COA).

      After a jury trial, Jones was found guilty of multiple counts of mail fraud,

in violation of 18 U.S.C. § 1341, and one count of wire fraud, in violation of 18

U.S.C. § 1343. He was sentenced to fifty-two months’ imprisonment and three
years’ supervised release. Jones’ sentence reflected the trial court’s application

of several adjustments and enhancements pursuant to the United States Sentencing

Guidelines.

      Jones filed a direct appeal which was dismissed on September 10, 2001

because he was a fugitive from justice. He filed the instant § 2255 motion on

July 22, 2004, asserting the trial court improperly calculated his sentence through

the use of judge-found facts in violation of United States v. Blakely, 124 S. Ct.

2531 (2004) and United States v. Booker, 125 S. Ct. 738 (2005). The district

court concluded Jones’ motion was time-barred pursuant to the provisions of §

2255. In so ruling, the district court specifically rejected Jones’ contention that

his motion was timely because it was brought within one year of the Supreme

Court’s decision in Blakely. See 28 U.S.C. § 2255 para. 6(3) (providing that a §

2255 motion is timely if it is filed within one year of “the date on which the right

asserted was initially recognized by the Supreme Court, if that right has been

newly recognized by the Supreme Court and made retroactively applicable to

cases on collateral review”). The district court ruled that § 2255 para. 6(3) did

not apply because Blakely is not retroactively applicable to cases on collateral

review. See United States v. Price, 400 F.3d 844 (10th Cir. 2005); see also

United States v. Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005) (concluding

Booker does not apply retroactively on collateral review).


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      In his brief, Jones has informed this court that he is no longer incarcerated.

Because the claims raised in his § 2255 motion challenge only his term of

incarceration and not his underlying conviction, his application for a COA is

moot. See Spencer v. Kemna , 523 U.S. 1, 7 (1998).   Accordingly, we dismiss

Jones’ request for a COA and all outstanding motions as moot. Jones’ motion to

proceed in forma pauperis on appeal is denied .

                                       Entered for the Court
                                       ELISABETH A. SHUMAKER, Clerk


                                       By
                                               Deputy Clerk




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