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United States v. Anderson, 10th Cir. (2006)
United States v. Anderson, 10th Cir. (2006)
United States v. Anderson, 10th Cir. (2006)
No. 05-4265
(D. Utah)
(D. Ct. No. 2:05-CV-557-DAK)
(D. Ct. No. 2:05-CR-666-DAK)
Defendant - Appellant.
____________________________
OR D ER D EN YING REQUEST TO PROCEED
IN FORM A PAUPERIS,
DENYING CERTIFICATE O F APPEALABILITY
A ND DISM ISSIN G A PPLIC ATIO N
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
M aury Jay Anderson, a federal prisoner proceeding pro se, 1 filed a 28
U.S.C. 2255 motion to vacate, set aside or correct his sentence. The district
court dismissed the motion. Anderson then filed a request for a certificate of
1
Anderson was sentenced ten days after the Supreme Court issued its opinion in
Booker.
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Cir. 2002); see United States v. Frady, 456 U.S. 152, 167-68 (1982).
Notwithstanding the obvious availability of the procedural bar defense in this
case, the government did not file an appellate brief raising this issue. Although
we may raise and enforce the procedural bar sua sponte, our consideration of the
procedural bar would not be an efficient use of judicial resources in this case.
Wiseman, 297 F.3d at 980. To give Anderson notice and a reasonable opportunity
to respond to the defense would require supplemental briefing, while the merits of
his arguments have been fully addressed by the district court. Therefore,
considering the merits of his arguments, we conclude he has failed to make a
sufficient showing that he is entitled to a COA on any of his claims. The district
court correctly determined the governments response to Andersons motion was
proper and Booker did not require more than a preponderance of the evidence
standard at sentencing. United States v. M agallanez, 408 F.3d 672, 684 (10th
Cir.) (Both before and under the [Federal Sentencing] Guidelines, facts relevant
to sentencing have generally been found by a preponderance of the evidence and
[n]othing in Booker changes this analysis.), cert. denied, 126 S.Ct. 468 (2005).
M oreover, Booker does not apply retroactively to cases on collateral review.
United States v. Bellamy, 411 F.3d 1182, 1186 (10th Cir. 2005). Because his
conviction became final before either decision was issued, Anderson cannot
challenge his sentence under Booker. Therefore, the district court's order of
dismissal is not reasonably debatable. Slack, 529 U.S. at 484. Accordingly, w e
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