United States v. McMasters

* 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that this opinion should not be published and is not precedent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 14, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30929
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TARIK MCMASTERS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 00-CV-52-L
USDC No. 98-CR-127-ALL-L
--------------------
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Tarik McMasters, federal prisoner # 26040-034, was granted a
certificate of appealability (“COA”) by the district court as to
whether the Supreme Court’s ruling in Apprendi v. New Jersey, 530
U.S. 466 (2000), is retroactively applicable on collateral
review. This court has since answered that question in the
negative. See United States v. Brown, 305 F.3d 304, 310 (5th

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No. 01-30929
-2-
Cir. 2002), cert. denied, 2003 U.S. LEXIS 3377 (U.S. Apr. 28,
2003) (No. 02-9606).
On appeal, McMasters also maintains that although Apprendi
was decided after his conviction became final, Jones v. United
States, 526 U.S. 227 (1999), which foreshadowed the rule of
Apprendi, was decided before his conviction became final,
negating the need for retroactive application. He also requests
expansion of his COA to include whether his counsel was
ineffective for failing to perfect his direct appeal.
McMasters’ Jones argument is not cognizable because a COA
was granted only on the Apprendi question, not on Jones, and
McMasters does not ask this court to grant a COA on the
applicability of Jones. See United States v. Kimler, 150 F.3d
429, 431 (5th Cir. 1998).
McMasters’ request for expansion of his COA may be granted
only if he makes a substantial showing of the denial of a
constitutional right. See 28 U.S.C. § 2253(c)(2); Slack v.
McDaniel, 529 U.S. 473, 483 (2000). While McMasters claims that
his counsel was ineffective for failing to file a notice of
appeal on his behalf, McMasters does not allege that he asked his
counsel to appeal or that his counsel failed to consult with him
regarding an appeal. Accordingly, he has failed to make a
substantial showing that his counsel rendered ineffective
assistance by failing to file a notice of appeal on his behalf.
See Roe v. Flores-Ortega, 528 U.S. 470, 477-80 (2000).

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No. 01-30929
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MOTION FOR EXPANSION OF COA DENIED; AFFIRMED.

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