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No. 05-4163

(District of Utah)

(D.C. No. 2:05-CV-141-DAK)


Before BRISCOE, LUCERO and MURPHY, Circuit Judges.

Petitioner, Donald Vincent Greco, seeks a certificate of appealability ("COA") so he can appeal the district court's denial of the motion to vacate, set aside, or correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B) (providing that a movant may not appeal the denial of a § 2255 motion unless the movant first obtains a COA). Greco pleaded guilty to possession of cocaine with intent to distribute and was sentenced to eighty-four months' imprisonment and three years' supervised release. He was sentenced on March 9, 2004 and filed the instant § 2255 motion on February 18, 2005. Greco's § 2255 motion contained one argument: that his sentence is unconstitutional because it was imposed in violation of United States v. Booker, 125 S. Ct. 738 (2005).(*) The district court dismissed the § 2255 motion, concluding that Greco's Booker claim could not be raised for the first time in his § 2255 motion because Booker does not apply retroactively to initial habeas petitions. United States v. Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005); United States v. Price, 400 F.3d 844, 849 (10th Cir. 2005).

To be entitled to a COA, Greco must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make the requisite showing, he must demonstrate "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 322 U.S. 322, 336 (2003) (quotations omitted). In evaluating whether Greco has satisfied his burden, this court undertakes "a preliminary, though not definitive, consideration of the [legal] framework" applicable to each of his claims. Id. at 338. Although Greco need not demonstrate his appeal will succeed to be entitled to a COA, he must "prove something more than the absence of frivolity or the existence of mere good faith." Id.

Having undertaken a review of Greco's application for a COA and appellate filings, the district court's order, and the entire record on appeal pursuant to the framework set out by the Supreme Court in Miller-El, this court concludes that Greco is not entitled to a COA. The district court's resolution of Greco's § 2255 motion is not reasonably subject to debate and the issue he seeks to raise on appeal is not adequate to deserve further proceedings. Accordingly, this court denies Greco's request for a COA and dismisses this appeal. Greco's motion to proceed in forma pauperis on appeal is granted.

Entered for the Court



Deputy Clerk

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*.Although Greco relied on Blakely v. Washington, 542 U.S. 296 (2004), the Supreme Court applied the reasoning of Blakely to the federal sentencing guidelines in Booker. 125 S. Ct. 738, 756 (2005).

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