                                                                        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,

 v.                                                    No. 05-8056
                                                       (D. of Wyo.)
 DONNIE COLLINS,                              (D.C. Nos. 05-CV-52-CAB and
                                                   00-CR-176-03-CAB)
              Defendant-Appellant.




           ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TACHA, Chief Judge, HARTZ, and TYMKOVICH, Circuit Judges. **


      In 2001, a jury convicted Donnie Collins of conspiracy to possess with

intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(B). The district court sentenced him to 84 months imprisonment. His

appeal was denied. He subsequently brought a habeas petition under 28 U.S.C.


      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
§ 2255 challenging his sentence, which was denied by the district court.

      Having jurisdiction pursuant to 28 U.S.C. § 1291, we deny a certificate of

appealability (COA) and dismiss this matter.

                           I. Procedural Background

      At sentencing, the district court determined that Mr. Collins’s relevant

conduct, involving between 50 and 500 grams of methamphetamine, placed him at

the base offense level of 26 under the then-mandatory Sentencing Guidelines.

The court enhanced this sentence by two levels after finding Mr. Collins’s

conduct evidenced obstruction of justice. We affirmed this sentence on direct

appeal. United States v. Collins, 97 F. App’x 818 (10th Cir. 2004) (unpublished).

      Following the Supreme Court’s opinion in United States v. Booker, 543

U.S. 220 (2005), Mr. Collins brought the instant action: a § 2255 motion alleging

the court enhanced his sentence in violation of Booker. The district court ordered

the government to file a response within 20 days. Twenty-three days later the

government filed a motion for extension of time. The court granted the motion,

allowing the government an additional 30 days to respond. When that deadline

passed without a response, Mr. Collins filed a motion for entry of a default

judgment. The court denied the motion. The government’s response was

received 20 days after the extended deadline expired.




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                                     II. Analysis

         Before this court can review the merits of a § 2255 habeas appeal, we must

grant a COA. 28 U.S.C. § 2253(c)(1)(B). A COA may issue only if “jurists of

reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

                                A. Default Judgment

         Mr. Collins argues the district court should have entered a default judgment

following the government’s failure to file a timely response. He identifies two

lapses by the government: (1) its failure to request an extension of time before the

court-ordered response deadline had expired; and (2) following the court’s 30-day

extension, its failure to file a response until an additional 20 days passed after the

expiration of the extended deadline.

         Under Fed. R. Civ. P. 55(e), a default judgment shall not be entered against

the government “unless the claimant establishes a claim or right to relief by

evidence satisfactory to the court.” In particular, this court has held that a default

judgment may be appropriate in a habeas case where the delay itself rises to the

level of a due process violation. Stines v. Martin, 849 F.2d 1323, 1324 (10th Cir.

1988).


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      Here, the district court clearly explained its reasons for denying the

motion—the unexpected and substantial number of habeas motions following the

Supreme Court’s decision in Booker. The government’s delayed response,

although not desirable, was understandable in light of the circumstances and

certainly not so extensive or egregious as to violate Mr. Collins’s due process

rights. Nor did the additional delay result in any substantial harm to Mr. Collins.

                                 B. Booker Error

      Mr. Collins additionally argues the district court used judge-found facts to

impose a two-level enhancement for obstruction of justice in violation of Booker.

His § 2255 motion, however, was filed after Booker became final. Since our

cases have held that Booker does not apply retroactively to an initial § 2255

motion challenging a conviction that became final prior to Booker, we need not

address the merits of this allegation. See United States v. Bellamy, 411 F.3d

1182, 1186 (10th Cir. 2005) (holding that “Booker does not apply retroactively to

initial habeas petitions”). Nor can Mr. Collins avoid this rule by suggesting that

because Booker merely clarified Apprendi, the retroactivity rule is inapplicable to

his motion. Without Booker, Mr. Collins would have no claim. See United States

v. Price, 400 F.3d 844, 846 (10th Cir. 2005) (holding that because the Booker line

of cases created a new procedural rule, initial § 2255 motions are subjected to a

retroactivity analysis before they may be reviewed). Had Mr. Collins sought to


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make an Apprendi argument, the proper avenue for relief would have been on

direct appeal. See United States v. Mora, 293 F.3d 1213, 1219 (10th Cir. 2002)

(holding that Apprendi is not retroactively applicable to initial habeas

proceedings).

                                  III. Conclusion

      Accordingly, because Mr. Collins has failed to make a substantial showing

of the denial of a constitutional right, we deny a COA and dismiss this matter.



                                               Entered for the court



                                               Timothy M. Tymkovich
                                               Circuit Judge




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