                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                           May 22, 2006
                                 TENTH CIRCUIT                          Elisabeth A. Shumaker
                            __________________________                      Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,

 v.                                                         No. 05-6151
                                                         (W .D. Oklahoma)
 CARLOS DION HISHAW ,                                 (D.Ct. No. CIV-04-28-T)

          Defendant - Appellant.
                         ____________________________

            OR DER DENY ING CERTIFICATE O F APPEALABILITY
                     A ND DISM ISSIN G A PPLIC ATIO N


Before KELLY, O’BRIEN, and TYM KOVICH, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Carlos Dion Hishaw, a federal prisoner proceeding pro se, 1 filed a 28

U.S.C. § 2255 motion to vacate, set aside or correct his sentence. The district

court dismissed the motion as untimely. Hishaw then filed a request for a

certificate of appealability (COA), which the court denied. It also certified that

      1
        Pro se pleadings are liberally construed. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
the appeal was not taken in good faith, thus denying Hishaw the right to proceed

on appeal in forma pauperis (ifp). In this court, Hishaw renews his requests for

COA and for leave to proceed ifp. See 28 U.S.C. § 2253(c)(1)(B); F ED . R. A PP . P.

22(b)(1), 24(a)(5).

                                      Background

      In February 1999, Hishaw was convicted by a jury of numerous drug

offenses and possession of a firearm. On September 30, 1999, he was sentenced

to concurrent terms of 360 months imprisonment on all but the firearm charge, for

which he received a concurrent sentence of 120 months imprisonment. His

conviction was affirmed on direct appeal, United States v. Wilson, 244 F.3d 1208

(10th Cir. 2001), and on October 1, 2001, the United States Supreme Court denied

his petition for a writ of certiorari. Hishaw v. United States, 534 U.S. 882 (2001).

      H ishaw ’s § 2255 motion was filed on January 12, 2004, more than two

years after his conviction became final. The district court dismissed the motion

as barred by the one-year statute of limitations set forth in 28 U.S.C. § 2255. 2

Thereafter, the district court denied his request for a COA. It also denied

Hishaw’s request to proceed ifp on appeal, finding Hishaw had not “presented a

reasoned, nonfrivolous argument on appeal and that the appeal [was] not taken in




      2
       Paragraph 6 of § 2255 provides: “A 1-year period of limitation shall apply to a
motion under this section. The limitation period shall run from the latest of—(1) the date
on which the judgment of conviction becomes final . . . .”

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good faith.” (R. Doc. 611 at 2.) See 28 U.S.C. § 1915(a)(1), (a)(3); F ED . R. A PP .

P. 24.

                               Certificate of Appealability

         A COA is a jurisdictional pre-requisite to our review. M iller-El v.

Cockrell, 537 U.S. 322, 336 (2003). W e will issue a CO A only if Hishaw makes

a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this showing, he must establish that “reasonable jurists

could debate whether . . . the petition should have been resolved [by the district

court] in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000)

(quotations omitted). Insofar as the district court dismissed his habeas petition on

procedural grounds, Hishaw must demonstrate both that “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.” Id. “W here a plain procedural

bar is present and the district court is correct to invoke it to dispose of the case, a

reasonable jurist could not conclude either that the district court erred in

dismissing the petition or that the petitioner should be allowed to proceed

further.” Id.

         W e review the district court's factual findings for clear error and its legal

conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir. 2001).

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The district court correctly found Hishaw’s motion was time-barred. Hishaw’s

sentence became final on October 1, 2001, when the Supreme Court denied his

petition for a writ of certiorari. See United States v. Willis, 202 F.3d 1279,

1280-81 (10th Cir. 2000). His § 2255 motion was filed on January 12, 2004, well

past the one year statute of limitations.

      Hishaw attempts to avoid this result by arguing an intervening change in

law rendered his sentence unconstitutional. Specifically, he claims Apprendi v.

New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296

(2004), require the quantity of drugs used to enhance his sentence beyond the

twenty-year maximum to be found by a jury beyond a reasonable doubt. Because

the amount of drugs used to enhance his sentence was not found by a jury, he

argues his sentence is unconstitutional and he is “actually innocent”— not of the

underlying crimes themselves but of possessing the amount of drugs resulting in

the enhancement to his sentence. He also asserts his counsel was ineffective for

failing to raise this issue at sentencing or on direct appeal. Finally, he asserts this

is a miscarriage of justice.

      Hishaw’s arguments fail because this issue was addressed on direct appeal.

Apprendi was decided while Hishaw’s case was pending on appeal and Hishaw

submitted a supplemental brief addressing its applicability. Wilson, 244 F.3d at

1214, 1220 n.7. In affirming Hishaw’s convictions, we acknowledged the

enhancement of his sentence above the statutory maximum violated the

                                            -4-
procedures set forth in Apprendi. Wilson, 244 F.3d at 1220 n.7. W e analyzed the

issue under the plain error doctrine and concluded the error did not meet the

fourth prong of the doctrine, because it did not “seriously affect the fairness,

integrity or public reputation of judicial proceedings.” Id. (quotations omitted).

      [T]he omission of an essential element of an offense from jury
      consideration does not seriously affect the fairness or integrity of a
      proceeding if the evidence related to that element was overw helming.
      This is particularly true where a trial court follows procedures that
      were universally considered fair at the time of trial . . . Here . . . the
      evidence was overwhelming. M r. Hishaw’s sentence could be
      enhanced to thirty years upon a finding of only five grams of crack
      cocaine--in contrast, trial evidence proved his involvement with over
      six kilograms of the drug, over a thousand times more than the
      necessary amount. Therefore we find no plain error in this case . . . .

Id. (citations omitted).

      The subsequent decision in Blakely affords Hishaw no relief. Blakely did

not address the Federal Sentencing Guidelines pursuant to which Hishaw was

sentenced. Blakely, 542 U.S. at 305 n.9. Blakely does not apply retroactively to

convictions that were already final at the time it w as decided in 2004. United

States v. Price, 400 F.3d 844, 849 (10th Cir.), cert. denied, 126 S.Ct. 731 (2005).

Hishaw’s convictions were final over two years before Blakely was decided.

      Hishaw has failed to raise any allegations warranting the application of

equitable tolling in this case. See Gisbon v. Klinger, 232 F.3d 799, 808 (10th Cir.

2000) (equitable tolling of statute permitted in only rare and exceptional

circumstances); accord United States v. Willis, 202 F.3d at 1281 n.3. His § 2255



                                          -5-
motion was untimely. The district court’s order of dismissal is not reasonably

debatable. Slack, 529 U.S. at 484. Hishaw has failed to make a sufficient

show ing that he is entitled to a C OA.

                                     IFP M otion

      A prisoner seeking leave from this court to proceed ifp must show “the

existence of a reasoned, nonfrivolous argument on the law and facts in support of

the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th

Cir. 1991). In denying Hishaw’s motion to proceed ifp on appeal, the district

court found he had not “presented a reasoned, nonfrivolous argument on appeal

and that the appeal [was] not taken in good faith.” (R. Doc. 611 at 2.) After

review ing Hishaw’s contentions, we adopt the district court’s finding that this

appeal is not taken in good faith. Coppedge v. United States, 369 U.S. 438, 446

(1962), we adopt it.

      Based on the above, we DENY Hishaw’s request for a COA and dismiss his

application. W e also DENY Hishaw’s motion to proceed ifp and order him to

immediately remit the full amount of the filing fee. W e remind him of his




                                          -6-
obligation to pay the filing fee even on an appeal that has been dismissed.

                                       Entered by the C ourt:

                                       Terrence L. O ’Brien
                                       United States Circuit Judge




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