                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         June 22, 2005
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                        No. 05-8012
 v.                                             (D.C. Nos. 03-CV-144-J and
                                                       00-CR-175-J)
 CHARLES ALLEN HARMS,                                    (D. Wyo.)

       Defendant-Appellant.


                                     ORDER


Before BRISCOE, LUCERO,         and MURPHY , Circuit Judges.


      Defendant Charles Allan Harms, 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 Harms cannot show 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), we deny his request and dismiss the appeal.

      On February 9, 2001, Harms executed a plea agreement and pled guilty to

conspiring to possess with intent to distribute and to distribute more than 50

grams of a substance containing methamphetamine, in violation of 21 U.S.C. §§

841(a)(1) and 841(b)(1)(B). On April 20, 2001, the district court sentenced
Harms to seventy-two months’ imprisonment. Pursuant to the terms of his plea

agreement, Harms did not appeal his sentence.

      On July 3, 2003, Harms filed a motion to modify his sentence citing 28

U.S.C. § 2255 and arguing that he should be eligible for a sentence reduction of

up to one year and a period of six months in a halfway house given his successful

completion of a 500-hour drug treatment program. Harms asserted his sentence

was improperly enhanced two levels for possession of a firearm pursuant to

U.S.S.G. § 2D1.1(b)(1), and the finding underlying this enhancement was

preventing him from qualifying for the one-year sentence reduction. After

considering Harms’ claim, the district court denied Harms’ § 2255 motion holding

that Harms was challenging the manner in which the Bureau of Prisons was

executing his sentence, not the sentence itself. As such, the district court

concluded Harms’ claim should have been brought pursuant to 28 U.S.C. § 2241

rather than § 2255. The court also noted that even if § 2255 were the appropriate

vehicle, the claim would be time barred.

      Harms filed a motion for a COA and a motion to reconsider in light of

Blakely v. Washington, 124 S. Ct. 2531 (2004), and requested the district court

wait to rule on those motions until the Supreme Court issued its opinion in United




                                           2
States v. Booker, 125 S. Ct. 738, (2005). 1 The district court denied the motion for

a COA and the motion to reconsider stating that it could not consider Harms’

Blakely arguments because the statute of limitations for the § 2255 motion had

expired.

      On appeal, Harms argues that his sentence was imposed in violation of the

Sixth Amendment, citing Booker and Blakely. Specifically, Harms claims his 72-

month sentence exceeded the maximum of the range that should have applied to

his offense of conviction, i.e., 57-71 months. In addition, he argues the sentence

imposed was the result of judicial fact-finding that he possessed a firearm, even

though he asserts he never had a firearm and never agreed to a firearm

enhancement in the plea agreement. Harms states that this alleged sentencing

error was plain, affected his substantial rights, and warrants reversal and

resentencing. Harms also argues that his sentence violates his Eighth Amendment

right to be free from cruel and unusual punishment. In this regard, he argues his

sentence is unconstitutional because it exceeds the statutory maximum. Finally,

Harms argues that Apprendi v. New Jersey, 530 U.S. 466 (2000), announced a

new constitutional rule that should be applied to his case. Harms does not appeal



      1
       The motion for COA and motion to reconsider state that Harms filed a
supplemental brief regarding the application of Blakely to his case. That
supplemental brief is not in the record and, therefore, this court cannot discern the
nature of his argument.

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the district court’s denial of his § 2255 motion which sought a one-year reduction

of jail time for completion of a drug treatment program.

      As an initial matter, this court cannot consider the merits of this argument

because the record is inadequate. The record does not contain the plea agreement,

any relevant portions of the sentencing hearing transcript, or the presentence

report. As such, this court cannot determine whether Harms’ sentence was

enhanced by a judge-found fact, whether Harms agreed to any enhancement, what

offense level and criminal history category was applied, or how the district court

arrived at the 72-month sentence. Without any of this information, we simply

cannot address the merits of Harms’ argument.

      Further, the district court was correct in holding that Harms’ § 2255 motion

is untimely. Section 2255 establishes a one-year statute of limitations for filing

federal habeas petitions that begins to run from the latest of:

             (1) the date on which the judgment of conviction
             becomes final;
             (2) the date on which the impediment to making a
             motion created by governmental action in violation of
             the Constitution or laws of the United States is removed,
             if the movant was prevented from making a motion by
             such governmental action;
             (3) the date on which the right asserted was initially
             recognized by the Supreme Court, if that right has been
             newly recognized by the Supreme Court and made
             retroactively applicable to cases on collateral review; or
             (4) the date on which the facts supporting the claim or
             claims presented could have been discovered through the
             exercise of due diligence.

                                          4
28 U.S.C. § 2255. Harms argues that Apprendi announced a new constitutional

rule, but Apprendi issued on June 26, 2000, almost a year before Harms was

sentenced on April 20, 2001. Apprendi cannot be the basis for restarting the

statute of limitations. Whether Blakely or Booker applies to Harms’ case depends

in part on when his conviction became final. The district court noted, and Harms

does not dispute, that the plea agreement contained a waiver of appellate rights. 2

ROA., Doc. 6 at 2. Therefore, his conviction became final on May 10, 2001, ten

days after entry of his judgment when his time for appeal expired. Fed. R. App.

P. 4(b)(1)(A)(I); United States v. Burch, 202 F.3d 1274, 1278-1279 (10th Cir.

2000). Booker and Blakely issued after Harms’ conviction became final and,

therefore, must apply retroactively to cases on collateral review in order to restart

the statute of limitations. See 28 U.S.C. § 2255(3). However, this court has not

held that either Booker or Blakely apply retroactively to cases on collateral

review. Bey v. United States, 399 F.3d 1266, 1269 (10th Cir. 2005) (refusing to

apply Booker retroactively to cases on collateral review and holding that Booker

may not be applied retroactively to second or successive habeas petitions); United

States v. Price, 400 F.3d 844, 849 (10th Cir. 2005) (Blakely does not apply


      2
        Harms does not raise this issue, but we note for clarity that we have held
that the issuance of Blakely and Booker does not render a pre-existing plea
agreement involuntary, unknowing, unintelligent, or otherwise unlawful. United
States v. Green, 405 F.3d 1180, 1190-1191 (10th Cir. 2005).

                                          5
retroactively to convictions that were already final at the time the Court decided

Blakely). Thus, the statute of limitations began running on May 10, 2001 when

Harms’ conviction became final, 28 U.S.C. § 2255(1), and Harms had until May

10, 2002 to file his § 2255 motion. Harms did not file the motion until July 3,

2003, 3 well after the one-year limitations period expired.

      In order to receive a COA on a procedural issue, Harms had to show 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.” Slack,

529 U.S. at 484. As the above discussion indicates, Harms cannot meet the

second of these two Slack criteria. We conclude Harms has failed to establish his

entitlement to a COA.

      Accordingly, the request for a COA is DENIED and the appeal is

DISMISSED. Harms’ motion to proceed in forma pauperis is GRANTED.

                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Circuit Judge



      3
       As a prisoner filing pro se, Harms benefits from the prison mailbox rule
announced in Houston v. Lack, 487 U.S. 266, 276 (1988), that states that the
cause of action is considered filed when the prisoner delivers the pleading to
prison officials for mailing.

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