This order is not binding precedent, except under the doctrines of law of the *

case, res judicata, and collateral estoppel.

F I LED

United States Court of Appeals

Tenth Circuit

October 4, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 06-4074

EUGENE CHEE, JR.,

Defendant-Appellant.

(D.C. No. 06-CV-58-TC)

 (D.C. No. 02-CR-66-TC)

(D. Utah)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.

Eugene Chee, Jr., a federal prisoner appearing pro se, seeks to appeal the

district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside or correct

his sentence. The matter is before this court on Chee’s request for a certificate of

appealability (“COA”). Our jurisdiction arises under 28 U.S.C. §§ 1291 and 2253(a),

and, as we determine that Chee has not made a “substantial showing of the denial of

a constitutional right,” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,

483-84 (2000), we deny a COA and dismiss this matter.

Chee was convicted by a jury for aggravated sexual abuse and abusive sexual
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contact while within Indian country. He was sentenced to two hundred and ten

months of imprisonment, which reflected the trial court’s application of an

obstruction of justice enhancement pursuant to § 3C1.1 of the United States

Sentencing Guidelines. Chee filed a direct appeal of his conviction and this court

subsequently affirmed his conviction on January 28, 2004. United States v. Chee,

86 Fed. Appx. 400 (10th Cir. 2004). Chee did not file a petition for a writ of

certiorari. 

On January 19, 2006, Chee filed a petition under 28 U.S.C. § 2255 in federal

court arguing that his sentencing enhancement was unconstitutionally imposed

because he was found guilty of having obstructed justice by the sentencing judge

rather than by a jury. The district court denied this petition, finding it was timebarred. Chee filed a motion with the district court seeking reconsideration or, in the

alternative, to appeal the denial of his petition. The district court denied Chee’s

motion for reconsideration, treating the motion instead as an appeal of its denial of

his § 2255 petition. Because the district court did not issue Chee a COA or state why

a certificate should not issue, we deem that Chee’s constructive request for a COA

was denied. See United States v. Kennedy, 225 F.3d 1187, 1193 n.3 (10th Cir. 2000)

(holding that a COA is deemed denied if the district court does not address its

issuance within thirty days).

Our granting of a COA is a jurisdictional prerequisite to Chee’s appeal from

the denial of his § 2255 petition. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
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We construe Chee’s appellate brief in support of his notice of appeal as additional

argument in support of his application for a COA. To be entitled to a COA, Chee

must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). To make the requisite showing, Chee must demonstrate “that

reasonable jurists could debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336

(internal quotations omitted); see also Slack, 529 U.S. at 484-85 (holding that when

a district court dismisses a habeas petition on procedural grounds, a petitioner is

entitled to a COA only if he shows both that reasonable jurists would conclude it

debatable whether he had stated a valid constitutional claim and debatable whether

the district court's procedural ruling was correct). 

To determine whether Chee has satisfied his burden, we undertake “a

preliminary, though not definitive, consideration of the [legal] framework”

applicable to each of his claims. Miller-El, 637 U.S. at 338. Although Chee need

not demonstrate his appeal will succeed to be entitled to a COA, he must “prove

something more than the absence of frivolity or the existence of mere good faith.”

Id. (internal quotations omitted). Having undertaken a review of Chee's application

for a COA and appellate filings, the district court's order, and the entire record on

appeal pursuant to the framework set out by the Supreme Court in Miller-El, we

conclude Chee is not entitled to a COA. For the following reasons, the district
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court's resolution of Chee’s § 2255 motion is not reasonably subject to debate and

the issues he seeks to raise on appeal are not adequate to deserve further

proceedings. 

First, Chee’s § 2255 petition was properly denied as time-barred. For the

purposes of a petition under § 2255, if a prisoner does not file a petition for writ of

certiorari with the United States Supreme Court after his direct appeal, the one-year

limitation period begins to run when the time for filing a certiorari petition expires.

S.Ct. R. 13(1); United States v. Burch, 202 F.3d 1274, 1279 (10th Cir. 2000). Here,

the one-year limitation period began to run on April 28, 2004, ninety days after we

affirmed Chee’s conviction on January 28, 2004. In order for Chee’s § 2255 petition

to be timely, it had to be filed by April 28, 2005. See 28 U.S.C. § 2255(1). As

Chee’s petition was not filed until January 19, 2006, it was time-barred and no

reasonable jurist could conclude otherwise.

Alternatively, even assuming Chee's § 2255 petition was timely, it

unquestionably fails on the merits. Chee essentially argues that Booker is not a new

rule of criminal procedure and ought to be applied retroactively. Despite Chee’s

protestations to the contrary, Booker does indeed “represent[] a new rule,” which

“does not apply retroactively to criminal cases that became final before . . . January

12, 2005" and it “does not apply retroactively on collateral review.” United States

v. Bellamy, 411 F.3d 1182, 1184-88 (10th Cir. 2005). Because Chee's conviction

was final well before that date, he may not benefit from Booker. Likewise, Chee’s
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next argument, that his appeal is timely because it was filed within one year of

Booker, is equally unavailing. While it is true that the one year limitation period of

28 U.S.C. § 2255 runs from the date the Supreme Court recognizes a right and

declares it retroactive, the Supreme Court did not declare that its holding in Booker

would apply retroactively. Id. at 1188. Beyond this, Chee presents no meaningful

argument that the statute of limitations in this case should be equitably tolled. See

Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (holding equitable tolling

available if “an inmate diligently pursues his claims and demonstrates that the failure

to timely file was caused by extraordinary circumstances beyond his control”). 

Accordingly, we DENY Chee’s application for a COA and DISMISS this

matter.

Entered for the Court

Mary Beck Briscoe

Circuit Judge