                                                                           F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                      December 20, 2005
                                TENTH CIRCUIT
                                                                           Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 05-3082
          v.                                          District of Kansas
 ANTWAUN NELSON FULTON,                      (D.C. Nos. 04-CV-3347-RDR and
                                                    02-CR-40159-RDR)
               Defendant-Appellant.


                                      ORDER *


Before HARTZ, SEYMOUR, and McCONNELL, Circuit Judges.


      Antwaun Nelson Fulton, a federal prisoner proceeding pro se, seeks a

certificate of appealability (COA) that would allow him to appeal from the district

court’s order denying his habeas corpus petition under 28 U.S.C. § 2255. See 28

U.S.C. § 2253(c)(1)(B). Because we conclude that Mr. Fulton has failed to make

“a substantial showing of the denial of a constitutional right,” we deny his request

for a COA, and we dismiss the appeal. 28 U.S.C. § 2253(c)(2).




      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                  I. Background

      Mr. Fulton pleaded guilty to one count of possession of a firearm by a felon

in violation of 18 U.S.C. § 922(g). In his plea agreement, Mr. Fulton waived the

right to challenge his sentence under 28 U.S.C. § 2255. On October 3, 2003, the

district court applied a two-level enhancement for obstruction of justice and

sentenced him to 63 months imprisonment. Mr. Fulton did not file a direct

appeal.

      Mr. Fulton filed a motion to vacate his sentence on October 6, 2004,

claiming that the sentencing proceeding violated his constitutional rights. The

district court denied the motion on February 3, 2005, finding that Mr. Fulton had

waived his right to habeas corpus relief under 18 U.S.C. § 2255 and that the relief

he requested did not apply retroactively. On February 17, 2005, Mr. Fulton filed

an “Objection to the Court’s Order and/or Notice of Appeal,” which the court

construed as a Rule 59(e) motion and denied. After the district court denied Mr.

Fulton’s Rule 59(e) motion, we construed his notice of appeal and brief as an

application for a COA.

                              II. Claims on Appeal

      The denial of a motion for relief under 28 U.S.C. § 2255 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(B). A COA will issue “only if the applicant has made a substantial


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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to make such a showing, a petitioner must demonstrate that “reasonable jurists

could debate whether . . . the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 529 U.S. 473, 475 (2000) (internal

quotation marks omitted).

      In his request for a COA, Mr. Fulton makes two challenges. First, he

claims that he did not “knowingly and voluntarily” waive his right to seek

collateral relief in his plea agreement. Second, he claims that the sentence

imposed by the district court violated his constitutional rights by lengthening his

term of imprisonment beyond the statutory maximum based on facts about

obstruction of justice determined by a judge, rather than by a jury. Because Mr.

Fulton’s constitutional challenge lacks merit, we need not decide whether he

knowingly and intelligently waived his right to collateral review.

      Mr. Fulton claims that the Supreme Court’s decisions in Blakely v.

Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220

(2005), apply retroactively to invalidate his sentence. However, this Court has

held that “Booker does not apply retroactively to initial habeas petitions.” United

States v. Bellamy, 411 F.3d 1182, 1186 (10th Cir. 2005) (denying a COA to a

federal prisoner, sentenced in 2003, who raised a Booker challenge). Thus, Mr.


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Fulton cannot challenge his sentence under Booker, as he was sentenced in

October 2003 and raised this claim for the first time on collateral review.



                                  III. Conclusion

      Accordingly, we DENY Antwaun Nelson Fulton’s request for a COA and

DISMISS this appeal.

                                               Entered for the Court,

                                               Michael W. McConnell
                                               Circuit Judge




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