Opinion
No. 06-3039.
Filed On: September 11, 2007.
BEFORE: Ginsburg, Chief Judge, and Griffith and Kavanaugh, Circuit Judges.
ORDER
Upon consideration of appellee's motion to govern further proceedings and to dismiss case for lack of a certificate of appealability ("COA"), the Clerk's order to show cause, filed June 13, 2007, why the dispositive motion should not be considered and decided without a response, and the response thereto, it is.
ORDERED that the order to show cause be discharged. It is.
FURTHER ORDERED that the motion to dismiss for lack of a COA be granted. As this court recently decided in In re Fashina, 486 F.3d 1300, 1303 (D.C. Cir. 2007), the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005) (applying the principles of Blakely v. Washington, 542 U.S. 296 (2004), to the U.S. Sentencing Guidelines, under which appellant was sentenced), is not applicable retroactively to cases on collateral review. Given that appellant's sentence became final prior to issuance of the decision in Booker, appellant cannot rely on the holding in Booker to support his motion to vacate, set aside, or correct the sentence, pursuant to 28 U.S.C. § 2255. And because appellant has not "made a substantial showing of the denial of a constitutional right," he is not entitled to a COA.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. Because no COA has been allowed, no mandate will issue.