F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 21, 2005
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 05-2113
v. D. New Mexico)
ALFREDO CASTRO-PINEDA, (D.C. No. CIV-03-1246 JC/LCS)
Defendant - Appellant.
ORDER
Before HARTZ, Circuit Judge, BARRETT, Senior Circuit Judge, and
McCONNELL, Circuit Judge.
Alfredo Castro-Pineda pleaded guilty to conspiracy to possess with intent to
distribute more than 500 grams of a methamphetamine mixture and on
October 21, 2002, was sentenced to 168 months in prison. He did not appeal that
conviction. On October 24, 2003, he filed a habeas motion under 28 U.S.C.
§ 2255. That motion raised three ineffective-assistance-of-counsel claims: (1)
counsel failed to argue to the district court that a firearm found in his home was
unrelated to the drug activity and could not be used to enhance his sentence; (2)
counsel failed to convince the court that he met the safety-valve requirements of
18 U.S.C. § 3553(f); and (3) counsel failed to object to the presentence report and
move for a two-level reduction based on his role as a “minor participant.” The
government responded to these claims, and the case was referred to a magistrate
judge who appointed counsel and set the case for oral argument.
With counsel appointed, Mr. Castro-Pineda filed an unopposed motion to
vacate the scheduled oral argument so that both sides could file briefs relating to
Blakely v. Washington, 542 U.S. 296 (2004). The magistrate judge granted the
motion to vacate oral argument, and ordered Mr. Castro-Pineda to file an amended
motion. The order stated that “[t]he Amended Motion may introduce new claims
as well as re-introduce claims that were filed in the original [motion]. The
Amended Motion may also address . . . and discuss solely whether it should be
applied retroactively.” R. Doc. 14. Mr. Castro-Pineda filed an amended habeas
motion on September 7, 2004. The amended motion did not raise the arguments
that were raised in his original pro se motion. Instead, the amended motion
argued only that Blakely was retroactive and, in the alternative, that his habeas
motion should be treated as a direct appeal.
The magistrate judge issued proposed findings and recommended that the
habeas motion be denied because Blakely was not retroactive and because his case
was not before the court on direct review. The magistrate judge also noted that
the amended motion did not raise the issues raised in the original motion. Before
the district court ruled, Mr. Castro-Pineda filed a motion to proceed pro se. In
that motion he alleged that he had spoken with his court-appointed attorney, who
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informed him that he would not be filing objections to the magistrate judge’s
proposed disposition. He also indicated that his attorney had a “conflict of
interest” because he had failed to reintroduce the original claims. R. Doc. 22 at 2.
The magistrate judge granted the motion to proceed pro se and gave Mr. Castro-
Pineda additional time to file objections. Mr. Castro-Pineda filed his objections
and also stated that the issues raised in his original pro se motion were abandoned
without his consent.
The district court adopted the magistrate judge’s proposed findings, noting
that this court had ruled in the interim that Blakely was not retroactive. The
district court also addressed the claims raised in the original motion and found
that they were without merit. The district court denied a certificate of
appealability (COA), which is now sought from this court.
DISCUSSION
“A certificate of appealability may issue . . . only if the applicant has made
a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). This means that the applicant must show “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) (internal quotation marks omitted). In other words, the applicant must
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show that the district court’s resolution of the constitutional claim was either
“debatable or wrong.” Id. If the petition was denied on procedural grounds, the
applicant faces a double hurdle. Not only must the applicant make a substantial
showing of the denial of a constitutional right, but he must also show “that jurists
of reason would find it debatable . . . whether the district court was correct in its
procedural ruling.” Id. “Where a plain procedural bar is present and the district
court is correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the petition or that the
petition should be allowed to proceed further.” Id. Mr. Castro-Pineda has not
met this burden.
We review the district court’s factual findings for clear error and its legal
conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir. 2001). No
reasonable jurist could dispute the district court’s resolution of Mr. Castro-
Pineda’s claims. Neither Blakely nor United States v. Booker, 125 S. Ct. 738
(2005), is retroactive, see United States v. Bellamy, 411 F.3d 1182, 1186-88 (10th
Cir. 2005), and there is no reason to consider this habeas application as a direct
appeal. The district court also properly concluded that the claims raised in the
original pro se motion were without merit.
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We therefore DENY a COA for substantially the same reasons as the
district court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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