United States v. Diaz

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-51271 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HUMBERTO DIAZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-98-CV-485-H USDC No. EP-96-CR-82-1-H -------------------- December 12, 2002

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

Humberto Diaz, federal prisoner # 00366-196, appeals the

denial of his 28 U.S.C. § 2255 motion. This court granted a

certificate of appealability (COA) on the following issues:

(1) whether Diaz’s postjudgment motion raising his Apprendi v.

New Jersey, 530 U.S. 466 (2000), claim should have been construed

as a postjudgment motion to amend under FED. R. CIV. P. 15(a) and

whether Diaz reasonably could have raised the claim prior to the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-51271 -2-

district court’s judgment; (2) whether the district court was

required to construe Diaz’s postjudgment motion as a successive

28 U.S.C. § 2255 motion; and (3) whether Diaz’s 360-month

sentence violates Apprendi.

Subsequent to the grant of COA, this court held that

Apprendi is not retroactively applicable to initial petitions

under 28 U.S.C. § 2255. See United States v. Brown, 305 F.3d

304, 310 (5th Cir. 2002). Also, construing Diaz’s postjudgment

motion as a successive 28 U.S.C. § 2255 motion would be

unavailing; Apprendi does not provide proper grounds for a

successive 28 U.S.C. § 2255 motion. In re Tatum, 233 F.3d 857,

859 (5th Cir. 2000). Therefore, resolution in Diaz’s favor of

all of the issues on which COA was granted is precluded, and

Diaz’s claims fail.

Diaz has filed several motions in this court to supplement

his brief and the record on appeal and for appointment of counsel

on appeal. Because the success of these motions also depended on

the viability of the retroactive application of Apprendi on

collateral review, those motions are DENIED.

AFFIRMED; MOTIONS DENIED.