United States v. Cantu

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40861 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER LOPEZ CANTU,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-00-CV-154 USDC No. B-97-CR-20-1 -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Javier Lopez Cantu, federal prisoner # 74613-079, appeals

the district court's denial of his 28 U.S.C. § 2255 motion, in

which he challenged his 1996 sentence for conspiracy to possess

with intent to distribute 1,000 kilograms or more of marijuana.

Cantu argues that his sentence violates Apprendi v. New Jersey,

530 U.S. 466 (2000), because the jury was not instructed to find

a drug quantity.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-40861 -2-

The district court granted Cantu a certificate of

appealability ("COA") because this court had not yet addressed

whether Apprendi can be applied retroactively to an initial 28

U.S.C. § 2255 motion. This court recently concluded that

Apprendi does not apply retroactively to cases on initial

collateral review. See United States v. Brown, 305 F.3d 304, 310

(5th Cir. 2002). In Brown, we stated that "Apprendi creates a

new rule of criminal procedure which is not retroactively

applicable to initial petitions under [28 U.S.C.] § 2255." Id.

Therefore, Cantu's Apprendi claim fails.

Cantu also argues that his trial and appellate counsel

rendered ineffective assistance. We do not reach these issues

because Cantu has not expressly sought to expand the district

court's grant of COA to include them. See United States v.

Kimler, 150 F.3d 429, 431 (5th Cir. 1998)(party must expressly

seek a COA on additional issues not certified by the district

court).

AFFIRMED.