(D.C. Nos. 2:05-CV-202-DAK and
UNITED STATES OF AMERICA,
DAVID L. LACH,
Before KELLY, McKAY, and LUCERO, Circuit Judges.
(D.C. Nos. 2:05-CV-202-DAK and 2:04-CR-194-DAK)
The district court denied Petitioner's § 2255 motion and also his Federal Rule of Civil Procedure 60(b) motion for relief from judgment. Order (D. Utah Aug. 5, 2005); Memorandum Decision and Order (D. Utah Apr. 28, 2005). The district court analyzed Petitioner's Blakely challenge under United States v. Booker, 543 U.S. 220 (2005). Memorandum Decision and Order, 3. The district court denied Petitioner's challenge because Booker does not apply retroactively to cases on collateral review. Id.; see also Bey v. United States, 399 F.3d 1266, 1269 (10th Cir. 2005).
The issues Petitioner raises in this appeal are identical to those he brought before the district court. To grant a certificate of appealability, Petitioner must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (1994). To meet this burden, Petitioner 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." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted).
We have carefully reviewed Petitioner's brief, the district court's disposition, and the record on appeal. Nothing in the facts, the record on appeal, or Petitioner's filing raises an issue which meets our standard for the grant of a certificate of appealability. For substantially the same reasons set forth by the district court in its orders of April 28, 2005, and August 5, 2005, we cannot say "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner." Id.
We DENY Petitioner's request for a certificate of appealability and DISMISS the appeal.
Entered for the Court
Monroe G. McKay