UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

TROY DEVON FENNELL,

Defendant – Appellant.	No. 06-3206

(D.C. No. 00-CR-40010-JAR)

(D. Kan.)

ORDER AND JUDGMENT*

Before KELLY, McKAY, and LUCERO, Circuit Judges.

Troy Fennell appeals the district court's grant in part and denial in part of his 28 U.S.C. § 2255 habeas petition.1 Fennell's claims are best described as a repackaging of the same challenges to his sentence he raised on direct appeal. We considered those claims in United States v. Fennell, 76 Fed. Appx. 911 (10th Cir. 2003) (unpublished opinion), in which we related the factual background of Fennell's conviction for conspiracy with intent to distribute one hundred grams or more of phencyclidine (PCP). In his petition, Fennell alleges the following errors at sentencing: (1) the calculation of drug quantity pursuant to U.S.S.G. § 2D1.1; (2) the inclusion of certain prior convictions in calculating his criminal history score; (3) the disparity between his sentence and the sentences of two related defendants; and (4) the applicability of certain enhancements, including enhancements for obstruction of justice and his role as a leader of a criminal enterprise. Fennell challenges these sentencing determinations under Booker, but as stated in note one, supra, Booker does not apply retroactively and hence does not provide a ground for relief on collateral attack.

The district court granted Fennell an evidentiary hearing on one issue: whether Fennell's counsel was ineffective in failing to challenge the calculation of his criminal history score. The government conceded that Fennell's criminal history score was improperly calculated, but objected to any reduction in Fennell's original sentence of 151 months' imprisonment.2 Finding that a reduction to 135 months was appropriate in light of the stipulated error, the district court resentenced Fennell accordingly. It refused, however, to reconsider Fennell's other sentencing claims. Fennell now appeals the district court's denial of his petition as to the remaining issues.

The Antiterrorism and Effective Death Penalty Act ("AEDPA") conditions Fennell's right to appeal under § 2255 on our grant of a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(2). A COA may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right." Id. Such a showing requires Fennell to 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). Fennell's brief is not styled as a request for a COA, nor does it clearly argue ineffective assistance of counsel or the denial of any other constitutional right. Were Fennell proceeding on appeal pro se, we would construe his pleadings liberally and might presume that his sentencing claims implied ineffective assistance of counsel at sentencing. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, Fennell is represented by counsel in this appeal, thus we will not so construe his petition. See Blackwell, 81 F.3d at 947 n.1.

To the extent that Fennell's petition represents an attempt to relitigate the merits of the district court's determination at sentencing, we are precluded on collateral attack from considering issues disposed of on direct appeal. See United States v. Pritchard, 875 F.2d 789, 791 (10th Cir. 1989).

For the reasons stated above, the district court's grant in part and denial in

part of Fennell's petition is AFFIRMED.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge