The opinion
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS June 21, 2005
TENTH CIRCUIT PATRICK FISHER
Clerk
MICHAEL JEROME BROWN,
Petitioner,
No. 04-5151
v. (D.C. No. 04-CV-364-C)
(N.D. Oklahoma)
UNITED STATES OF AMERICA,
Respondent.
ORDER
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
Michael Jerome Brown applies pro se for a certificate of appealability
(COA) of the district court’s denial of his petition for sentencing relief under 28
U.S.C. § 2255, 1 and also seeks permission to file a successive petition pursuant to
28 U.S.C. § 2244(b)(3)(a). Additionally, Mr. Brown requests leave to proceed in
forma pauperis (ifp) on appeal. Exercising jurisdiction under 28 U.S.C. §
2253(c)(1) and § 2244(b)(3)(a), we deny Mr. Brown’s application for a COA, his
request to file a successive petition under § 2244(b)(3)(a), and his petition to
1
Allegations in a pro se complaint are construed liberally. Hunt v. Uphoff,
199 F.3d 1220, 1223 (10th Cir. 1999) (quotation omitted).
proceed ifp.
Mr. Brown was convicted of knowingly possessing a firearm in violation of
18 U.S.C. § 922(g)(1). The district court sentenced Mr. Brown to 120 months in
prison followed by three years of supervised release. We affirmed his conviction
on direct appeal. United States v. Brown, 314 F.3d 1216 (10th Cir.), cert. denied,
537 U.S. 1223 (2003). In support of his § 2255 application to the district court,
Mr. Brown asserted ineffective assistance of trial counsel. The court denied his
petition. In his application for a COA and opening brief submitted to us, Mr.
Brown makes no mention of the district court’s dismissal of his petition for
habeas relief on the grounds of ineffective assistance of counsel. We therefore
deem the issue waived. See Hendrick v. Rockwell, 24 F.3d 1272, 1277-78 (10th
Cir. 1994) (holding issues not raised in opening brief are deemed waived).
The substance of Mr. Brown’s application to us is really a request for
authorization to file a successive petition on the grounds that his sentence is
unconstitutional under the recent Supreme Court decisions of Blakely v.
Washington, 124 S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct. 738
(2005). But we can certify Mr. Brown’s successive § 2255 petition only if he can
identify “a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.” 28 U.S.C. §
2255. We have determined that “a new rule is made retroactive to cases on
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collateral review only when the Supreme Court explicitly holds that the rule it
announced applies retroactively to such cases.” Bey v. United States, 399 F.3d
1266, 1268 (10th Cir. 2005). In Leonard v. United States, 383 F.3d 1146 (10th
Cir. 2004), we held that Blakely is not retroactive, thus authorization for a
successive petition under § 2255 was not proper. Id. at 1148. We have also held
that Booker does not apply retroactively because Booker involved a direct appeal
and there is no language in the opinion explicitly addressing retroactivity. Bey,
399 F.3d at 1269. In light of the above, Mr. Brown’s request for authorization to
file a successive petition is denied. This order is not subject to a petition for
rehearing or a writ of certiorari. See 28 U.S.C. § 2244(b)(3)(E).
We DENY Mr. Brown’s request for a COA. We also DENY Mr. Brown’s
request to file a successive § 2255 petition, and his motion to proceed ifp.
SUBMITTED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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