F I L E D
United States Court of Appeals
Tenth Circuit
October 17, 2005
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 04-2341
v. (D.C. Nos. CIV-04-01247 BB/RLP
and CR-01-823 BB)
ARTHUR HARRIS, (D. N.M.)
Defendant - Appellant.
ORDER DENYING A CERTIFICATE OF APPEALABILITY
Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.
Arthur Harris, a federal prisoner proceeding pro se, requests a certificate of
appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2255 petition. For
substantially the same reasons set forth by the district court, we DENY Harris’s
request for a COA and DISMISS.
Harris is currently serving a 120-month sentence following his plea of
guilty for being a felon in possession of a firearm. He collaterally attacked his
sentence in the court below by raising a challenge under Blakely v. Washington,
542 U.S. 296 (2004). 1 Finding that Blakely was not retroactively applicable to
1
Harris’ application for a COA, filed May 25, 2005, does not cite to United
(continued...)
initial habeas petitions, the court denied Harris’ § 2255 petition and also denied
Harris’s subsequent application for a COA. Harris now seeks a COA from this
court arguing that his sentence is invalid under Blakely/Booker. 2
This circuit has held that Booker does not apply retroactively on collateral
review. United States v. Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005).
Additionally, Booker does not require the submission of a prior conviction to the
jury. We have held that “the ‘fact’ of prior convictions . . . need not be charged
in an indictment and proven to a jury,” because “[i]n previous criminal
proceedings, a defendant received sufficient procedural protections to alleviate
any Sixth Amendment concerns about using convictions stemming from those
1
(...continued)
States v. Booker, 125 S.Ct. 738 (2005). “We must apply the holdings in Blakely
and Booker to all cases in which a defendant properly raised an issue under either
case.” U.S. v. Clifton, 406 F.3d 1173, 1175 n.1 (10th Cir. 2005).
2
Harris’ petition was filed after April 24, 1996, the effective date of the
Anti-terrorism and Effective Death Penalty Act (“AEDPA”); as a result,
AEDPA’s provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278,
1282 n.1 (10th Cir. 1999). AEDPA conditions a petitioner’s right to appeal a
denial of habeas relief under § 2255 upon a grant of a COA. 28 U.S.C. §
2253(c)(1)(B). A COA may be issued “only if the applicant has made a
substantial showing of the denial of a constitutional right.” § 2253(c)(2). This
requires Harris 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) (quotations
omitted). Because the district court denied Harris a COA, he may not appeal the
district court’s decision absent a grant of a COA by this court.
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proceedings for sentencing.” U.S. v. Moore, 401 F.3d 1220, 1223 (10th Cir.
2005).
Because we determine, for substantially the same reasons as the district
court, that Harris may not raise a Booker challenge on collateral attack, and that
Harris fails to state a Booker challenge in any event, his application for a COA is
DENIED and the appeal is DISMISSED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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