United States v. Fowler
UNITED STATES of America, Plaintiff—Appellee, v. Kevin Ray FOWLER, Defendant—Appellant
Opinion
PER CURIAM.
On or about March 24, 2005, Kevin Ray Fowler filed a notice of appeal from his December 16, 1996, criminal judgment. Because Fowler previously filed an appeal from his 1996 judgment and this Court disposed of the appeal by affirming Fowler’s convictions and sentence, this Court is without jurisdiction to entertain a second appeal from the same judgment. In addition, this court does not have jurisdiction because the appeal is clearly untimely as to the December 16, 1996, judgment.
See Fed. R.App. P. 4(b)(1). Accordingly, the appeal is dismissed.
Fowler seeks a review of his sentence based upon the rules announced in United States v. Booker, — U.S.-, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005) and Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004). If Fowler were to seek relief from his sentence in a 28 U.S.C. § 2255 (2000) motion, he would need authorization from this court pursuant to 28 U.S.C. §§ 2244 and 2255 because he previously unsuccessfully sought § 2255 relief. Construing his notice of appeal as a motion for authorization, we deny authorization because neither Booker nor Blakely announced a new rule of constitutional law *923 made retroactive by the Supreme Court to cases on collateral review.
Accordingly, we dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED
How later courts describe this case
Explanatory parentheticals written by citing courts — 1 in all; the most informative distinct ones are shown.
-
(affirming the district court’s denial of § 2255 claim because neither Blakely nor Booker apply retroactively to cases on collateral review)
Cited by 4 cases
View all citing references →Relies on it most ⓘ
Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.