                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                       FILED
                         ________________________              U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                No. 04-11422                         JUNE 22, 2005
                                                                  THOMAS K. KAHN
                            Non-Argument Calendar
                                                                       CLERK
                          ________________________

                    D.C. Docket No. 02-01610-CV-T-24-MSS

JAMES K. JEWELL,

                                                          Petitioner-Appellant,

      versus

JAMES CROSBY,
CHARLIE CRIST,
Attorney General of the State of Florida,

                                                          Respondents-Appellees.

                         __________________________

               Appeal from the United States District Court for the
                           Middle District of Florida
                         _________________________
                                (June 22, 2005)

Before ANDERSON, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
       James K. Jewell, a Florida state prisoner proceeding pro se, appeals the

district court’s denial of his habeas petition, brought pursuant to 28 U.S.C.

§ 2254.1

       Jewell was charged with multiple counts, including attempted second-

degree murder of a law enforcement officer (“LEO”). At the conclusion of a jury

trial, the judge instructed the jury that if they found Jewell guilty of attempted

second-degree murder, they then must determine if the offense involved a deadly

weapon. The court further instructed that, if the jury found Jewell guilty of a

lesser offense of aggravated assault, the jury must determine if the victim was an

LEO. The jury convicted Jewell of attempted second-degree murder with a deadly

weapon.2 At sentencing, the court stated that Jewell was convicted of attempted

second-degree murder of an LEO, and sentenced Jewell to thirty years

imprisonment, which was the maximum statutory sentence for attempted second

degree murder with a deadly weapon. The sentence was affirmed on direct appeal.




       1
           Jewell filed his petition after the effective date of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-32, 110 Stat. 1214 (1996), and, therefore, the
provisions of that act govern this appeal.
       2
           The jury verdict indicates that the jury found beyond a reasonable doubt that the offense
involved a deadly weapon.

                                                  2
      Jewell filed a state Rule 3.800 motion to correct his sentence, claiming that

his sentence was enhanced improperly because the victim’s LEO status was not

determined by a jury beyond a reasonable doubt, as required under Apprendi v.

New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). After a

hearing at which the judge admitted his misstatement at sentencing when he said

that Jewell had been convicted of attempted second-degree murder of an LEO, the

state court denied the Rule 3.800 motion and explained that it would correct the

judgment to reflect the proper offense of conviction.

      Jewell then filed a pro se § 2254 petition, alleging, inter alia, that his

sentence was illegal in light of Apprendi because he received an enhancement for

attempted second-degree murder of a LEO, but the LEO element was not found by

a jury beyond a reasonable doubt.

      The state responded and moved to dismiss on the grounds that, inter alia,

there was no Apprendi violation, as Jewell had been convicted of attempted

second-degree murder with a deadly weapon and not attempted second-degree

murder of an LEO.

      The district court denied habeas relief, finding, inter alia, that Apprendi was

not retroactively applicable to cases on collateral review. After the district court

denied Jewell’s request for a certificate of appealability (“COA”), this court

                                           3
granted a COA on the following issue: “[w]hether the district court erred when it

found that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d

435 (2000), did not apply in this case because of the Teague v. Lane, 489 U.S.

288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), non retro-activity doctrine?”

      On appeal, Jewell argues that the court erred in denying habeas relief

because his appeal was not final when Apprendi was decided and the sentencing

enhancement that the victim was an LEO was included in the charging document

but not submitted to the jury. He further claims that Apprendi was a “watershed

rule of criminal procedure” that would be retroactively applicable.

      We review de novo a district court’s denial of a habeas petition under 28

U.S.C. § 2254. Sims v. Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998). A

habeas petition

      shall not be granted with respect to any claim that was adjudicated on
      the merits in State court proceedings unless the adjudication of the
      claim-(1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or (2) resulted
      in a decision that was based on an unreasonable determination of the
      facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).




                                         4
       Here, the district court erred in finding that the Apprendi claim was barred

because Jewell’s conviction was not final until after Apprendi issued.3

Nevertheless, Jewell was not entitled to relief because Jewell was sentenced to 30

years imprisonment, the statutory maximum for attempted second-degree murder

with a deadly weapon. Fla. Stat. Ann § 775.082(3)(b); Jennings v. Florida, 704

So.2d 1078 (Fla. Dist. Ct. App. 1997). Therefore, the state court’s determination

that there was no Apprendi error was not contrary to federal law. Williams v.

Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000). As

long as Jewell’s sentence did not exceed the thirty-year statutory maximum, there

was no Apprendi error.4 See United States v. Sanchez, 269 F.3d 1250, 1272 (11th

Cir. 2001) (en banc).

       Because the district court properly denied relief on the merits, this court

need not address the state’s remaining arguments. Accordingly, we AFFIRM the

denial of habeas relief.




       3
          The state court’s decision affirming Jewell’s sentence was final when the mandate issued
on August 31, 2001. Apprendi was decided in 2000.
       4
             To the extent that Jewell may contend that there could be any error under Blakey v.
Washington, 542 U.S. –, 125 S.Ct 2531, – L.Ed.2d – (2004), that argument is without merit. Blakely
is not retroactively applicable to cases on collateral review. Varela v. United States, slip op. at 8-9
(No. 04-11725) (11th Cir. Feb. 17, 2005).

                                                  5
