F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 17, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 05-3214
v. (D.C. No. 05-CV-3162-MLB)
(Kansas)
RAYNALDO J. MORALES, SR.,
Defendant-Appellant.
ORDER
Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges.
Raynaldo J. Morales, a federal prisoner proceeding pro se, seeks a certificate of
appealability (COA) from our court to challenge the district court’s dismissal of his 28
U.S.C. § 2255 petition. Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253(c),
and construing Mr. Morales’ pro se filings liberally, see Haines v. Kerner, 404 U.S.
519, 520 (1972), we conclude jurists of reason would not find debatable the district
court’s rejection of Mr. Morales’ request for relief. We therefore deny his application
for a COA.
Mr. Morales pled guilty in April 2002 to a charge of possession with intent to
distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). In July of that year
he was sentenced, in part, to 168 months of imprisonment, followed by eight years of
supervised release. Mr. Morales did not file a direct appeal. In March 2005, he filed a
petition under 28 U.S.C. § 2255, claiming his sentence violated the Sixth Amendment
under the trio of cases Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v.
Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005).
The district court dismissed Mr. Morales’ petition on the basis that those Supreme
Court decisions are not retroactive and his claim was therefore barred on collateral
review. The court did not grant a certificate of appealability to Mr. Morales. See 10th
Cir. R. 22.1(C) (“Failure of the district court to issue a certificate of appealability
within thirty days of filing the notice of appeal shall be deemed a denial.”). The district
court did, however, grant Mr. Morales’ request to proceed in forma pauperis. Mr.
Morales filed an application for a COA with this court.
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 district court’s ruling, the record on
appeal and Mr. Morales’ submissions to our court, we do not think jurists of reason
would find debatable the district court’s dismissal of Mr. Morales’ petition. Neither
Apprendi, Blakely, nor Booker announced new rules of constitutional law made
retroactive by the Supreme Court to collateral review. See United States v. Bellamy,
411 F.3d 1182, 1188 (10th Cir. 2005); United States v. Price, 400 F.3d 844, 849 (10th
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Cir. 2005); United States v. Mora, 293 F.3d 1213, 1219 (10th Cir. 2002).
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We therefore DENY Mr. Morales’ application for a COA and DISMISS his
appeal.
SUBMITTED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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