Professional Documents
Culture Documents
TENTH CIRCUIT
Clerk of Court
No. 05-3387
(District of Kansas)
(D.C. Nos. 05-CV-3179-SAC and
98-CR-40076-SAC)
Defendant-Appellant.
ORDER
Before MURPHY, SEYMOUR and McCONNELL, Circuit Judges.
Ray Lee DArmond, Jr., a federal inmate appearing pro se, seeks to appeal
the district courts denial of his 28 U.S.C. 2255 motion to vacate, set aside, or
correct his sentence. The matter is before this court on DArmonds request for a
certificate of appealability (COA). 28 U.S.C. 2253(c)(1)(B) (providing no
appeal may be taken from a final order in a proceeding under section 2255
unless the movant first obtains a COA). Because DArmond has not made a
substantial showing of the denial of a constitutional right, this court denies his
request for a COA and dismisses this appeal. 28 U.S.C. 2253(c)(2) (providing
that a COA may issue . . . only if the applicant has made a substantial showing
of the denial of a constitutional right).
On November 18, 1998, the grand jury issued a superseding indictment
charging DArmond with seven counts of drug and firearm violations. DArmond
eventually pleaded guilty to the first count, conspiracy to manufacture
methamphetamine, and the government agreed to dismiss the remaining counts.
On May 12, 2000, the district court entered judgment against DArmond and
sentenced him to a 108-month term of imprisonment. DArmond filed the instant
2255 motion on April 18, 2005, asserting that the district court improperly
enhanced his sentence through the utilization of judge-found facts in violation of
United States v. Booker, 125 S. Ct. 738 (2005). The district court concluded
DArmonds motion was time-barred pursuant to the provisions of 2255 para. 6.
In so ruling, the district court specifically rejected DArmonds contention that
his motion was timely because it was brought within one year of the Supreme
Courts decision in Booker. See 28 U.S.C. 2255 para. 6(3) (providing that a
2255 motion is timely if it is filed within one year of 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). The district court ruled that 2255 para. 6(3) did
not apply because the Supreme Court has not made Booker retroactively
-2-
-4-
Deputy Clerk