United States v. Wright

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-30309 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WELTON L. WRIGHT,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 01-CV-507 USDC No. 95-CR-30024-2 -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Welton L. Wright, federal prisoner # 09039-035, appeals the

district court’s dismissal of his 28 U.S.C. § 2255 motion as

untimely. Wright’s motion challenged his sentence for conspiracy

to distribute cocaine base and distribution of cocaine base. The

district court granted Wright a certificate of appealability

(“COA”) because this court had not yet decided whether Apprendi

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-30309 -2-

v. New Jersey, 530 U.S. 466 (2000), applied retroactively to an

initial 28 U.S.C. § 2255 motion.

We recently concluded that Apprendi does not apply

retroactively to cases on initial collateral review. See United

States v. Brown, 305 F.3d 304 (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. at 310. Therefore, the district court

did not err in concluding that Apprendi does not apply

retroactively to cases on initial collateral review, or in

concluding that Wright’s motion was untimely.

We do not reach the other issues raised by Wright because he

has not expressly sought to expand the COA grant to include these

issues. 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.