|UNITED STATES OF AMERICA,
(D.C. No. 05-CV-3162-MLB)
Mr. Morales pled guilty in April 2002 to a charge of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). In July of that year he was sentenced, in part, to 168 months of imprisonment, followed by eight years of supervised release. Mr. Morales did not file a direct appeal. In March 2005, he filed a petition under 28 U.S.C. § 2255, claiming his sentence violated the Sixth Amendment under the trio of cases Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005). The district court dismissed Mr. Morales' petition on the basis that those Supreme Court decisions are not retroactive and his claim was therefore barred on collateral review. The court did not grant a certificate of appealability to Mr. Morales. See 10th Cir. R. 22.1(C) ("Failure of the district court to issue a certificate of appealability within thirty days of filing the notice of appeal shall be deemed a denial."). The district court did, however, grant Mr. Morales' request to proceed in forma pauperis. Mr. Morales filed an application for a COA with this court.
A COA should issue only where "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Based on our review of the district court's ruling, the record on appeal and Mr. Morales' submissions to our court, we do not think jurists of reason would find debatable the district court's dismissal of Mr. Morales' petition. Neither Apprendi, Blakely, nor Booker announced new rules of constitutional law made retroactive by the Supreme Court to collateral review. See United States v. Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005); United States v. Price, 400 F.3d 844, 849 (10th Cir. 2005); United States v. Mora, 293 F.3d 1213, 1219 (10th Cir. 2002).
We therefore DENY Mr. Morales' application for a COA and DISMISS his appeal.
SUBMITTED FOR THE COURT
Stephanie K. Seymour