F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 29, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-2244
(D.C. Nos. CIV-03-1070 BB/LAM and
CARMELO CALLEJAS, CR-00-732 BB)
(Dist. N.M.)
Defendant-Appellant.
ORDER DENYING A CERTIFICATE
OF APPEALABILITY
Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.
Carmelo Callejas seeks a Certificate of Appealability (“COA”) to appeal
the district court’s denial of his 28 U.S.C. § 2255 petition. Because we agree
with the district court, and because Callejas cannot raise an initial Sixth
Amendment claim in a § 2255 petition, we DENY a COA and DISMISS.
Callejas was convicted and sentenced on five narcotics-related charges,
which this court affirmed on direct appeal. In his § 2255 petition before the
district court, he raised five general claims: (1) wrongful conviction of
conspiracy in the absence of a co-conspirator; (2) insufficient evidence supporting
his conviction on drug charges; (3) insufficient evidence supporting his
conviction for possession of a firearm; (4) error in calculating a cash-to-drugs
conversion for purposes of sentencing; and (5) ineffective assistance of counsel.
As to the first four claims, the district court found that they had previously been
adjudicated on direct appeal, 1 and therefore could not be raised in a § 2255
petition. See United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989)
(“[I]ssues disposed of on direct appeal generally will not be considered on a
collateral attack by a motion pursuant to § 2255.”). As to the ineffective
assistance of counsel claim, the district found that there was no evidence
demonstrating that trial counsel’s performance was constitutionally deficient or
prejudicial under Strickland v. Washington, 466 U.S. 668, 687 (1984).
In his appeal from the district court’s denial of his § 2255 petition, Callejas
raises an ineffective assistance of counsel claim as well as a claim that his
sentence violates the Sixth Amendment because the district court found facts
relevant to sentencing as required by the Sentencing Guidelines. 2 In order to
appeal the denial of his § 2255 petition, Callejas must first obtain a COA, which
may issue only upon “a substantial showing of the denial of a constitutional
1
United States v. Callejas, 2003 WL 21300340 (10th Cir. June 6, 2003)
(unpublished opinion).
2
Callejas relies on Blakely v. Washington, 124 S.Ct. 2531 (2004), for his
Sixth Amendment claim.
2
right.” 28 U.S.C. § 2253(c)(2). 3 This standard requires a petitioner to establish
“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 conclude that Callejas’s ineffective assistance of counsel claim must
fail for substantially the same reasons as set forth by the district court. With
regard to Callejas’s Sixth Amdendment claim, we have held that we will not apply
Blakely retroactively to initial § 2255 petitions for collateral relief. United States
v. Price, 400 F.3d 844, 845 (10th Cir. 2005). Therefore, he is not entitled to
resentencing.
No reasonable jurist would debate whether Callejas’s § 2255 petition
should have been granted. Accordingly, we DENY the request for a COA and
DISMISS.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
3
Callejas’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”); therefore, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)).
3