Ovalle Marquez v. United States

First Circuit

Ovalle Marquez v. United States

91 F. App'x 162

CourtCourt of Appeals for the First Circuit

DecidedApril 6, 2004

Docket19-1140

StatusPublished

Cited by1 cases

This text of 91 F. App'x 162 (Ovalle Marquez v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ovalle Marquez v. United States, 91 F. App'x 162 (1st Cir. 2004).

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Opinion

PER CURIAM.

After denying appellant Luis OvalleMarquez’s 28 U.S.C. § 2255 motion, the district court issued a certificate of appeal-ability (COA) as to the issue whether Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), may be applied retroactively. This court has ruled that Apprendi “prescribes a new rule of criminal procedure” that may not be applied retroactively to cases on collateral review. See Sepulveda v. United States, 330 F.3d 55, 63 (1st Cir.2003). This defeats the instant appeal. Contrary to appellant’s contentions, Bunkley v. Florida, 538 U.S. 835, 123 S.Ct. 2020, 155 L.Ed.2d 1046 (2003)(per curiam), and the additional cases appellant cites do not suggest that Sepulveda was wrongly decided.

We also reject appellant’s suggestion that only the Supreme Court may decide the retroactivity question. 1 Sepulveda remains the law in this circuit unless and until the Supreme Court rules otherwise. Accordingly, the judgment of the district court is affirmed. See Loe. R. 27(c).

1

. See, e.g., Garcia v. United States, 278 F.3d 1210, 1212-13 & n. 4 (11th Cir.), cert. denied, 537 U.S. 895, 123 S.Ct. 180, 154 L.Ed.2d 163 (2002), Ashley v. United States, 266 F.3d 671, 673 (7th Cir.2001), United States v. Lopez, 248 F.3d 427, 431-32 (5th Cir.2001), United States v. Sanders, 247 F.3d 139, 146 n. 4 (4th Cir.2001).

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PER CURIAM.

After denying appellant Luis OvalleMarquez’s 28 U.S.C. § 2255 motion, the district court issued a certificate of appeal-ability (COA) as to the issue whether Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), may be applied retroactively. This court has ruled that Apprendi “prescribes a new rule of criminal procedure” that may not be applied retroactively to cases on collateral review. See Sepulveda v. United States, 330 F.3d 55, 63 (1st Cir.2003). This defeats the instant appeal. Contrary to appellant’s contentions, Bunkley v. Florida, 538 U.S. 835, 123 S.Ct. 2020, 155 L.Ed.2d 1046 (2003)(per curiam), and the additional cases appellant cites do not suggest that Sepulveda was wrongly decided.

We also reject appellant’s suggestion that only the Supreme Court may decide the retroactivity question. 1 Sepulveda remains the law in this circuit unless and until the Supreme Court rules otherwise. Accordingly, the judgment of the district court is affirmed. See Loe. R. 27(c).

1

. See, e.g., Garcia v. United States, 278 F.3d 1210, 1212-13 & n. 4 (11th Cir.), cert. denied, 537 U.S. 895, 123 S.Ct. 180, 154 L.Ed.2d 163 (2002), Ashley v. United States, 266 F.3d 671, 673 (7th Cir.2001), United States v. Lopez, 248 F.3d 427, 431-32 (5th Cir.2001), United States v. Sanders, 247 F.3d 139, 146 n. 4 (4th Cir.2001).

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91 F. App'x 162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ovalle-marquez-v-united-states-ca1-2004.

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