IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
October 31, 2006
JOSEPH K. IVY, PETITIONER/DEFENDANT,
UNITED STATES OF AMERICA, RESPONDENT/PLAINTIFF.
The opinion of the court was delivered by: Gilbert, District Judge
MEMORANDUM AND ORDER
The Court previously dismissed this action as time-barred, finding that the rules announced in Blakely v. Washington, 124 S.Ct. 2531 (2004), United States v. Booker, 125 S.Ct. 738 (2005), and Apprendi v. New Jersey, 530 U.S. 466 (2000), do not apply retroactively to convictions that were final prior to the dates of those decisions. See McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005) (Blakely and Booker not retroactively applicable); Curtis v. United States, 294 F.3d 841, 844 (7th Cir. 2002) (Apprendi not retroactively applicable).
Now before the Court is Petitioner's notice of appeal (Doc. 4). Implicit in that notice is a request for issuance of a certificate of appealability. Pursuant to 28 U.S.C. § 2253, a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." Further, Section 2253(c)(3) provides: "The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2)."
Because this action is clearly time-barred, Petitioner has not made "a substantial showing of the denial of a constitutional right." Accordingly, the Court DECLINES to issue a certificate of appealability.
IT IS SO ORDERED.
J. Phil Gilbert U. S. District Judge
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