F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            June 20, 2005
                                 TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                       No. 04-3262
 ALEX E. POWELL,                               (D.C. Nos. 03-CV-3386-KHV and
                                                     01-CR-20021-KHV)
          Defendant-Appellant.                            (D. Kansas)




                                       ORDER *


Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.


      Alex E. Powell, a federal prisoner appearing pro se, seeks a certificate of

appealability (COA) to appeal the district court's dismissal of his 28 U.S.C.

§ 2255 habeas petition. We deny the request for a COA and dismiss the appeal.

      Issuance of a COA is jurisdictional.   Miller-El v. Cockrell , 

,

336 (2003). A COA can issue only “if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A

petitioner satisfies this standard by demonstrating that jurists of reason could

disagree with the district court's resolution of his constitutional claims or that


      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
jurists could conclude the issues presented are adequate to deserve encouragement

to proceed further.”    Miller-El , 537 U.S. at 327. After careful review, we

conclude the requirements for issuance of a COA have not been met.

       Powell was convicted by a jury of being a felon in possession of

ammunition and a firearm, in violation of 18 U.S.C. § 922(g)(1), and his direct

appeal was affirmed.     See United States v. Powell , 

(10th Cir.

2002). He filed his § 2255 petition on September 29, 2003, arguing ineffective

assistance of trial and appellate counsel. The district court concluded the claims

did not satisfy the standards set forth in      Strickland v. Washington , 

,

687, 694 (1984). The court denied a COA for failure to make a substantial

showing of the denial of a constitutional right. Powell also requested that the

court reduce his sentence in light of        Blakely v. Washington , 

(2004). The court found it had already ruled on Powell’s first § 2255 motion and

only a Court of Appeals has authority to grant a second or successive petition.

       As an initial matter, Powell has filed a motion to supplement his pending

COA application for consideration of the decisions in         Blakely , and United States

v. Booker , ___ U.S. ____ (No. 04-104 Jan. 12, 2005). In         Booker , the Court did

not hold the case to be retroactive to cases on collateral review (     see Tyler v.

Caine , 

, 662 (2001)). Moreover,          Blakely and Booker rely on

Apprendi v. New Jersey , 

(2000), which do not apply retroactively to


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successive habeas petitions ( see Browning v. United States , 

, 1265

(10th Cir. 2001)), or even to initial habeas petitions (   see United States v. Mora ,

, 1218-19 (10th Cir. 2002)).

       We DENY the pending motion to supplement the COA application. We

DENY the request for a COA and DISMISS the appeal for substantially the same

reasons as stated in the district court's order dated June 16, 2004.

                                            Entered for the Court

                                            Mary Beck Briscoe
                                            Circuit Judge




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