                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                 June 23, 2005
                                    TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,
 v.                                                            No. 04-5195
 LAMONT WILLIAMS,                                     (D.C. Nos. 04-CV-736-C and
                                                             99-CR-33-C)
        Defendant-Appellant.                                 (N. D. Okla.)




                                          ORDER


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


       Defendant Lamont Williams, appearing pro se, seeks a certificate of appealability

(COA) in order to challenge the district court’s denial of his motion to vacate, set aside,

or correct his sentence pursuant to 28 U.S.C. § 2255. Because Williams has failed to

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

2253(c)(2), we deny his request and dismiss the appeal.

       On September 10, 1999, Williams was indicted, along with nine other defendants,

for conspiracy to possess with intent to distribute and to distribute cocaine and cocaine

base in violation of 21 U.S.C. § 846. The case proceeded to trial and Williams was found

guilty as charged. On November 9, 2000, Williams was sentenced to a term of

imprisonment of 240 months. Williams filed a direct appeal challenging both his
conviction and sentence. This court, in an unpublished decision, affirmed Williams’

conviction but remanded his case for resentencing on the grounds that the district court

had erred in calculating the amount of drugs attributable to him. United States v.

Williams, Nos. 00–5235, 00-5236, 00-5241, 00-5242, 00-5144, 2002 WL 1815916 (10th

Cir. Aug. 8, 2002). Williams was resentenced on March 24, 2003, to 240 months’

imprisonment. Williams did not file an appeal from his resentencing.

       On September 24, 2004, Williams, appearing pro se, filed a motion seeking to

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

Williams asserted that his sentence was invalid in light of the Supreme Court’s decision

in Blakely v. Washington, 123 S.Ct. 2531 (2004). Williams also asserted that his trial

counsel performed in a constitutionally ineffective manner during trial by failing to

challenge testimony provided by government witness Shawn Alexander. Alexander

testified at trial that cocaine was transported from California to Tulsa in a yellow Ford

Mustang. Once in Tulsa, Alexander testified, the cocaine was removed from the Mustang

and distributed to Williams and other co-defendants. In his § 2255 motion, Williams

argued that his trial counsel failed to offer expert testimony or object to testimony offered

by Alexander that he used a screwdriver to remove a panel on the Mustang.*

       On November 22, 2004, the district court issued an order denying Williams’ §




       Williams’ § 2255 motion included additional claims of ineffective assistance, but
       *

Williams has abandoned those claims on appeal.

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2255 motion. The district court rejected Williams’ Blakely-based attack on his sentence,

noting that the Supreme Court “did not hold that Blakely ha[d] retroactive application.”

ROA, Vol. I, Doc. 634, at 6. As for Williams’ ineffective assistance claim, the district

court, applying the standards for such claims outlined by the Supreme Court in Strickland

v. Washington, 466 U.S. 668 (1984), concluded that Williams had failed to establish that

his trial counsel was ineffective for failing to challenge Alexander’s testimony in the

respect asserted by Williams. Although Williams subsequently sought a COA from the

district court, the district court never acted on that request, and thus the request is deemed

denied. See United States v. Kennedy, 225 F.3d 1187, 1193 n.3 (10th Cir. 2000).

Williams has now applied for a COA from this court.

       To be entitled to COA, Williams must make “a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite showing,

Williams must demonstrate “that reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.” Miller-El

v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted).

       We find no basis for granting a COA with respect to Williams’ Blakely claim. In

United States v. Price, 400 F.3d 844, 849 (10th Cir. 2005), we held that “Blakely does not

apply retroactively to convictions that were already final at the time the [Supreme] Court

decided Blakely, June 24, 2004.” Here, Williams’ conviction and sentence were clearly


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final by that date, since he was resentenced on March 24, 2003, and chose not to appeal

from that resentencing. Thus, neither Blakely, nor the Supreme Court’s more recent

decision in United States v. Booker, 125 S.Ct. 738 (2005) (extending Blakely to the

federal sentencing guidelines), apply retroactively to Williams’ case. See United States v.

Bellamy, No. 04-5145, 2005 WL 1406176, at *3 (10th Cir. June 16, 2005) (concluding

“Booker does not apply retroactively to initial habeas petitions”). Although Williams

argues that his case is an exception because at the time of sentencing he asserted a claim

based on Apprendi v. New Jersey, 530 U.S. 466 (2000), we have held that Blakely

“announced a new rule” of criminal procedure. Price, 400 F.3d at 848. Thus, Williams’

assertion of an Apprendi claim at the time of sentencing does not preserve his current

Blakely claim.

       We likewise conclude that Williams has failed to establish his entitlement to a

COA with respect to his ineffective assistance of counsel claim. In particular, after

reviewing the record on appeal, we agree with the district court that Williams has

“fail[ed] to indicate how the use of any particular tool to remove cocaine from the

[M]ustang, if investigated or proven, would have been exculpatory evidence as to the

issue of whether cocaine was transported from California to Tulsa for delivery to

Williams and other co-defendants.” ROA, Vol. I, Doc. 634, at 4. Thus, we find no basis

for concluding that Williams’ ineffective assistance claim should have been resolved in a

different manner.


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      The request for a COA is DENIED and the appeal is DISMISSED. Appellant’s

motion to proceed in forma pauperis is granted.



                                                  Entered for the Court


                                                  Mary Beck Briscoe
                                                  Circuit Judge




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