UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CONRAD LUCERO,

Petitioner - Appellant,

v.

GARY GOLDER; COLORADO ATTORNEY GENERAL,

Respondents - Appellees.

No. 04-1165

(D. Colorado)

(D.Ct. No. 03-Z-2424)

ORDER DENYING CERTIFICATE OF APPEALABILITY

AND DISMISSING APPEAL*

Before SEYMOUR, LUCERO, and O'BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is therefore ordered submitted without oral argument.

Conrad Lucero, acting pro se,1 requests a certificate of appealability (COA)2 to enable an appeal of the district court's denial of his habeas corpus petition under 28 U.S.C. § 2254.3 Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we see no basis for an appeal and DENY a COA.

According to Lucero, he pled guilty on March 19, 1993, to second degree murder, a class 2 felony, in violation of Colo. Rev. Stat. § 18-3-103 (1992),4 for which the presumptive range of sentence was eight to twenty-four years imprisonment. § 18-1-105(1)(a)(IV). The sentencing judge enhanced his sentence to forty years imprisonment:

The presence of any one or more of the following extraordinary aggravating circumstances shall require the court, if it sentences the defendant to incarceration, to sentence the defendant to a term of at least the midpoint in the presumptive range but not more than twice the maximum term authorized in the presumptive range for the punishment of a felony:

(I) The defendant is convicted of a crime of violence under section 16-11-309, C.R.S.. . . .

§ 18-1-105(9)(a).5 Murder is a crime of violence. § 16-11-309(2)(a)(I).

Lucero's sentence was affirmed on direct appeal. State v. Lucero, No. 93CA1726 (Colo. Ct. App. July 13, 1995), cert. denied, No. 95SC585 (Colo. Dec. 26, 1995). He twice moved for and was denied post-conviction relief. Each denial was affirmed on appeal. See State v. Lucero, No. 00CA0633 (Colo. Ct. App. May 24, 2001); State v. Lucero, No. 01CA2555 (Colo. Ct. App. Mar. 27, 2003), cert. denied, No. 03SC316 (Colo. Aug. 18, 2003).

In his second motion for post-conviction relief, Lucero claimed his sentence was unconstitutional because a judge, not a jury, made the factual determinations necessary to enhance his sentence in violation of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."). He makes the same claim in his habeas petition filed December 2, 2003.6 The Colorado Court of Appeals denied relief on the ground Apprendi was not retroactively applicable to cases on collateral review (citing to People v. Bradbury, 68 P.3d 494 (Colo. Ct. App. 2002)). Applying § 2254(d) deference to the state court decision,7 the district court denied habeas relief for the same reason (citing to United States v. Mora, 293 F.3d 1213, 1219 (10th Cir.), cert. denied, 537 U.S. 961 (2002)), and denied a COA.

A COA is a jurisdictional pre-requisite to our review. One may issue only "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). The petitioner must demonstrate that reasonable jurists would find the court's assessment of the claims debatable or wrong. Id. at 327 (citing to Slack v. McDaniel, 529 U.S. 473, 484 (2000)).8 In reviewing for a COA, we are forbidden from giving full consideration to the factual or legal bases urged in support of the claims. To the contrary, we overview the claims and make a general assessment of their merit. Id. at 336. Although petitioner, in requesting a COA, is not required to prove the merits of the case, the threshold of proof is higher than good faith or lack of frivolity. Id. at 338.

We agree with the district court that Mora is dispositive:

Apprendi clarifies that certain questions that were previously thought to be properly determined by the court must now be proved to a jury beyond a reasonable doubt. While this rule arguably increases the accuracy of convictions, it is a rule that simply shifts the fact-finding duties from an impartial judge to a jury.

293 F.3d 1213, 1219 (quotation marks omitted). "[A]pprendi is not a watershed decision and hence is not retroactively applicable to initial habeas petitions." Id. This being so, there can be no debate as to the district court's resolution of

Lucero's claims. We DENY the request for COA and DISMISS the appeal.9

Entered by the Court:

Terrence L. O'Brien

United States Circuit Judge