United States v. Miller

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 22, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-51044 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID MILLER,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-98-CV-455-DB USDC No. EP-97-CR-90-1-DB --------------------

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

David Miller, federal prisoner # 02280-025, appeals from the

district court’s denial of relief on his 28 U.S.C. § 2255 motion,

which he filed to attack his conviction and sentence on one count

of conspiring to possess with intent to distribute an unspecified

quantity of marijuana in violation of 21 U.S.C. § 846 and

841(a)(1). The district court granted a certificate of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-51044 -2-

appealability (COA) on the issue of the retroactive applicability

of Apprendi v. New Jersey, 466 U.S. 530 (2000), to cases on

collateral review. We have previously determined that Teague v.

Lane, 489 U.S. 288 (1989), bars the application of Apprendi to

cases on initial collateral review, however, United States v.

Brown, 305 F.3d 304, 310 (5th Cir. 2002), precluding relief here.

In addition to his briefing of the Apprendi issue, Miller

argues that the district court erred in refusing relief on other

claims. Because Miller has failed to make an “express request”

that this court extend the order granting a COA to include such

issues, this court need not address these additional arguments.

See United States v. Kimler, 150 F.3d 429, 431 (5th Cir. 1998);

Lackey v. Johnson, 116 F.3d 149, 151-52 (5th Cir. 1997).

Accordingly, the judgment of the district court is AFFIRMED.