|UNITED STATES OF AMERICA,
The trial court ruled that the failure to raise these issues on direct appeal constituted waivers. In doing so, the court considered the exception based on ineffective assistance of counsel. We see no reason to duplicate here the trial court's extensive and correct analysis of that issue in holding that Appellant failed to demonstrate that his "standby" counsel was ineffective. We similarly affirm the trial court's holding that there was no fundamental miscarriage of justice, for substantially the reasons set forth in the trial court's memorandum opinion and order.
With respect to Appellant's challenge to the sentence enhancement, the trial court appropriately relied on our decision in United States v. Price, 400 F.3d 844, 849 (10th Cir. 2005), in concluding that the Blakely and Booker issues do not apply retroactively to Appellant's collateral attack on a judgment that was final when Booker was issued.
In order for this court to grant a certificate of appealability, Appellant must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Nothing in the appeal merits the grant of a certificate of appealability. Accordingly, we DENY the certificate of appealability, and AFFIRM the dismissal of Appellant's § 2255 motion, but GRANT Appellant's
petition to proceed in forma pauperis.
Entered for the Court
Monroe G. McKay
*. This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).