[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 3, 2006

THOMAS K. KAHN

N o . 06-10161

CLERK

N o n - A r g u m e n t Calendar

D . C. Docket Nos. 05-20379-CV-DLG & 02-20763 CR-DLG

A N T O N IO JONES,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

A p p e al from the United States District Court

fo r the Southern District of Florida

(N o v em b er 3, 2006)

B efo re ANDERSON, BLACK and BARKETT, Circuit Judges.

P E R CURIAM:

A n to n io Jones, a pro se federal prisoner, appeals the district court's denial of

h is motion to vacate, set aside, or correct his sentence, which was filed pursuant to 2 8U.S.C. § 2255. Jones, who is serving a 235-month sentence for being a felon in p o ssessio n of a firearm, filed the instant § 2255 motion, alleging that: (1) his co n v ictio n and sentence were illegal because the indictment and jury instructions in his case failed to state an offense under 18U.S.C. § 924(e), and because the § 924(e) elements were not presented to the jury; (2) the district court plainly erred b y sentencing him as an Armed Career Criminal ("ACC") because one of his prior c o n v ic tio n s was not a qualifying predicate conviction; and (3) his trial counsel was in effectiv e because he failed to establish Jones's standing at the suppression h earin g and to present rebuttal witnesses at trial. The magistrate judge issued a rep o rt, which the district court adopted, recommending that Jones's § 2255 motion b e denied. Specifically, the district court found, inter alia, that Jones's first claim w as procedurally barred as (1) he had raised the issue with us on direct appeal, and w e had ruled against him, and (2) he did not allege a change in the law or circu m stan ces to justify reconsideration of the claim, and that Jones's second claim w as barred because he was sentenced properly as an ACC.

Jones filed objections to the magistrate's report, alleging that the magistrate "to tally disregarded" Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L .E d .2 d 403 (2004), United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738, 160 L .E d .2 d 621 (2005), and Shepard v. United States, 544 U.S. 13 , 125 S.Ct. 1254, 1 6 1 L.Ed.2d 205 (2005), and arguing that, in light of those cases, he could not be sen ten ced as an ACC because the indictment did not allege facts sufficient to ju s tif y the enhancement, and he did not admit to such facts. The district court d en ied those objections. Subsequently, the court granted a certificate of ap p ealab ility ("COA") as to the issues that Jones raised in light of Blakely and B o o k er.

On appeal, Jones first argues that he raised Blakely and Booker issues in his § 2255 motion, but did not cite to the cases specifically because the § 2255 form in stru cted him not to argue or cite caselaw. Next, he asserts that, contrary to the g o v ern m en t's assertions concerning procedural bar, we did not consider these c la im s on direct appeal, where we addressed a claim based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because his case w as decided prior to the Supreme Court's decisions in Blakely, Booker, and S h e p a r d . Jones then argues the substance of his claim was that Booker requires th a t the "serious drug offense" requirement of the ACC statute must be proven b eyo n d a reasonable doubt, which the government failed to do in his case with reg ard to his prior convictions. He also contends that he did not have the requisite n u m b e r of prior convictions to qualify as an ACC. He asserts that, because he was u n a b le to communicate with his attorney during the appeal process, his claim was n o t procedurally barred by his failure to raise it on direct appeal. Finally, Jones a rg u e s his ineffective assistance of counsel claims, requesting that we hear them b e c au s e he made the necessary substantial showing of a denial of a constitutional r ig h t.

Issues outside of the scope of the COA are not properly before us. Murray v . United States, 145 F.3d 1249, 1251 (11th Cir. 1998). Therefore, only the B o o k er /B lak ely claim is properly before us. When reviewing the district court's d en ial of a § 2255 motion, we review questions of law de novo and questions of fact for clear error. Varela v. United States, 400 F.3d 864, 867 n.3 (11th Cir.), cert. d en ied , 126 S.Ct. 312 (2005). In Varela, we held that "Booker's [and Blakely's] c o n s titu tio n a l rule falls squarely under the category of new rules of criminal p ro ced u re that do not apply retroactively to § 2255 cases on collateral review." Id. at 686.

Because we have held that Blakely and Booker do not apply retroactively to cases on collateral review, the district court did not commit reversible error by d en yin g Jones's motion without specifically addressing such claims. Accordingly, w e affirm. A F F IR M E D . 1

1 Jones's request for oral argument is denied.