                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-13-2005

USA v. Armstrong
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2333




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"USA v. Armstrong" (2005). 2005 Decisions. Paper 414.
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BPS-389                                                      NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                   NO. 05-2333
                                ________________

                         UNITED STATES OF AMERICA

                                          v.

                            MICHAEL ARMSTRONG,

                                            Appellant

                    ____________________________________

                  On Appeal From the United States District Court
                      For the Eastern District of Pennsylvania
                           (D.C. Crim. No. 99-cr-00603)
                    District Judge: Honorable Juan R. Sanchez
                  _______________________________________

Submitted For Possible Summary Action Under Third Circuit LAR 27.4 And I.O.P. 10.6
           And On Appellant’s Motion For A Certificate Of Appealability
                          Under 28 U.S.C. § 2253(c)(1)
                               September 29, 2005

    Before: RENDELL, FISHER AND VAN ANTWERPEN, CIRCUIT JUDGES

                             (Filed: October 13, 2005)

                            _______________________

                                    OPINION
                            _______________________

PER CURIAM

     Appellant Michael Armstrong, a federal prisoner, appeals the order of the United
States District Court for the Eastern District of Pennsylvania denying his motion under

28 U.S.C. § 2255 to vacate his sentence. The parties are familiar with the facts of the

case, and we will not recount them at length. After a jury trial, Armstrong was convicted

of conspiracy to possess with intent to distribute cocaine and cocaine base, possession

with intent to distribute cocaine and cocaine base, and attempted possession and

distribution of cocaine and cocaine base. Armstrong was sentenced to 300 months of

imprisonment. This Court affirmed the conviction and sentence on May 29, 2003.

       In August 2004, Armstrong then filed a motion under 28 U.S.C. § 2255 to vacate

his sentence, raising a number of claims of ineffective assistance of counsel. Armstrong

also claimed that his sentence is unconstitutional in light of Blakely v. Washington,

542 U.S. 296 (2004), because his sentence was increased on the basis of judicial fact-

finding using a preponderance of the evidence standard, rather than upon facts found

beyond a reasonable doubt by the jury. In addition, Armstrong asserted that, under

Shepard v. United States, 125 S. Ct. 1254 (2005), his sentence was unlawfully increased

on the basis of a prior conviction not charged in the indictment nor found beyond a

reasonable doubt by the jury.

       By memorandum and order entered on March 30, 2005, the District Court denied

the section 2255 motion, concluding that none of Armstrong’s claims warrant relief.

However, noting that Armstrong’s Blakely claim was more appropriately addressed under

United States v. Booker, 125 S. Ct. 738 (2005), which applied the Blakely rule to the



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United States Sentencing Guidelines, the District Court granted a certificate of

appealability as to Armstrong’s Booker and Shepard claims. The District Court denied a

certificate of appealability on Armstrong’s ineffective assistance of counsel claims.

       After Armstrong filed his notice of appeal, we decided Lloyd v. United States,

407 F.3d 608 (3d Cir. 2005). We then asked the parties to submit written argument in

support of, or in opposition to, summary affirmance. The parties have filed their

responses. Armstrong has also filed a motion for a certificate of appealability regarding

his claims of ineffective assistance of counsel, which we will construe as a motion to

expand the scope of the certificate of appealability.

       We held in Lloyd that the rule announced in Booker is a new rule of criminal

procedure that is not retroactively applicable to cases on collateral review. Lloyd,

407 F.3d at 615-16. Thus, Armstrong is not entitled to relief under Booker. As for his

similar claim regarding the fact of his prior conviction that was used to increase his

sentence, we observe that Armstrong did not raise this claim in District Court until March

2005, months after the one-year period of limitations would have expired. See 28 U.S.C.

§ 2255. Armstrong relies on Shepard, which was decided on March 7, 2005. To the

extent that he contends that his claim involves a right newly-recognized by the Supreme

Court and made retroactively applicable to cases on collateral review, and thus section

2255’s statute of limitations has not expired for this claim, we note that Shepard has not

been made retroactive by the Supreme Court. See Tyler v. Cain, 533 U.S. 656, 663



                                              3
(2001). In any event, Armstrong would not be entitled to relief. The Supreme Court in

Blakely and Booker reaffirmed its holding in Apprendi v. New Jersey, 530 U.S. 466, 490

(2000), that other than the fact of a prior conviction, a fact that increases a criminal

penalty beyond the prescribed statutory maximum must be admitted by the defendant or

proved to a jury beyond a reasonable doubt. See Blakely, 124 S. Ct. at 2536; Booker, 125

S. Ct. at 756. Shepard involves what a court may and may not consider in determining

whether a defendant’s prior convictions qualify as predicate offenses for application of

the Armed Career Criminal Act. Shepard’s holding does not apply to Armstrong, and the

rule of Apprendi applies. Because these issues present “no substantial question,” see

3d Cir. LAR 27.4 and I.O.P. 10.6, we will summarily deny relief on these claims.

       We have carefully considered Armstrong’s motion to expand the scope of the

certificate of appealability to include his claims of ineffective assistance of counsel. We

conclude that he has failed to make a “substantial showing of the denial of a

constitutional right” on these claims. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell,

537 U.S. 322, 327 (2003). Thus, we will deny the motion.




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