UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARIO JOSE MONTES-FELIX,

Defendant-Appellant.	No. 05-2205

(D.C. Nos. CIV-05-411 JC and CR-01-39 JC)

(New Mexico)

ORDER*

Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges.

Mario Montes-Felix, a federal prisoner proceeding pro se, seeks a certificate of appealability (COA) to challenge the district court's dismissal of his 28 U.S.C. § 2255 petition, see 28 U.S.C. § 2253(c)(1). He also seeks to proceed in forma pauperis (ifp) on appeal.1 Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253(c), we conclude jurists of reason would not find debatable the district court's rejection of Mr. Montes-Felix's petition for relief. We therefore deny his application for a COA. We also deny his request to proceed ifp.

Mr. Montes-Felix pled guilty to a charge of possession with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A). On direct appeal, he unsuccessfully challenged the district court's calculation of his sentence. See United States v. Montes-Felix, 74 Fed. Appx. 870 (10th Cir. 2003). He subsequently filed a petition in district court under 28 U.S.C. § 2255, alleging his sentence violated United States v. Booker, 543 U.S. 220 (2005). The district court dismissed the petition, concluding the Booker claim was barred on collateral review. The court then denied Mr. Montes-Felix's application to proceed ifp on appeal, ruling that the application lacked any "reasoned, non-frivolous argument in law or fact." Rec., doc. 6.

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 record on appeal and Mr. Montes-Felix's submissions to our court, we do not think jurists of reason would find debatable the district court's dismissal of Mr. Montes-Felix's petition. Booker does not apply retroactively on collateral review. United States v. Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005).2 Moreover, because Mr. Montes-Felix has not raised "a reasoned, nonfrivolous argument on the law and the facts in support of the issues raised on appeal," MacIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 812 (10th Cir. 1997), we also deny his request to proceed ifp.

Having DENIED Mr. Montes-Felix's request for COA and his request to proceed ifp, we DISMISS the appeal.

SUBMITTED FOR THE COURT

Stephanie K. Seymour

Circuit Judge