United States v. Miller

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
May 22, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-51044
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID MILLER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-98-CV-455-DB
USDC No. EP-97-CR-90-1-DB
--------------------
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
David Miller, federal prisoner # 02280-025, appeals from the
district court’s denial of relief on his 28 U.S.C. § 2255 motion,
which he filed to attack his conviction and sentence on one count
of conspiring to possess with intent to distribute an unspecified
quantity of marijuana in violation of 21 U.S.C. § 846 and
841(a)(1). The district court granted a certificate of

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No. 02-51044
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appealability (COA) on the issue of the retroactive applicability
of Apprendi v. New Jersey, 466 U.S. 530 (2000), to cases on
collateral review. We have previously determined that Teague v.
Lane, 489 U.S. 288 (1989), bars the application of Apprendi to
cases on initial collateral review, however, United States v.
Brown, 305 F.3d 304, 310 (5th Cir. 2002), precluding relief here.
In addition to his briefing of the Apprendi issue, Miller
argues that the district court erred in refusing relief on other
claims. Because Miller has failed to make an “express request”
that this court extend the order granting a COA to include such
issues, this court need not address these additional arguments.
See United States v. Kimler, 150 F.3d 429, 431 (5th Cir. 1998);
Lackey v. Johnson, 116 F.3d 149, 151-52 (5th Cir. 1997).
Accordingly, the judgment of the district court is AFFIRMED.

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