F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 19, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 05-3321
v. District of Kansas
JU A N JOSE R UIZ-C AR RA N ZA, (D.C. Nos. 05-CV-3318-RDR and
03-CR-40118-RD R-ALL)
Defendant-Appellant.
OR DER *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
Juan Jose Ruiz Carranza, a federal prisoner proceeding pro se, seeks a
certificate of appealability (COA) that would allow him to appeal from the
district court’s order denying his habeas corpus petition under 28 U.S.C. § 2255.
See 28 U.S.C. § 2253(c)(1)(B). Because we conclude that M r. Carranza has failed
to make “a substantial showing of the denial of a constitutional right,” we deny
his request for a COA, and we dismiss the appeal. Id. § 2253(c)(2).
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
I. Background
M r. Ruiz-Carranza was charged with and pleaded guilty to illegal reentry
into the United States after having been convicted of an aggravated felony in
violation of 8 U.S.C. §§ 1326(a) and (b)(2). In his plea agreement, M r. Ruiz-
Carranza admitted that he had been convicted of two aggravated felonies in the
State of O regon before his deportation and reentry. M r. Ruiz-Carranza also
waived his right to appeal and to collaterally attack his sentence. The district
court accepted his plea and sentenced him to 41 months’ imprisonment.
Judgment was entered on M arch 30, 2004. M r. Ruiz-Carranza did not file a direct
appeal.
M r. Ruiz-Carranza commenced this habeas corpus action in the district
court on July 22, 2005. In his petition, he argued that his sentence is
unconstitutional under United States v. Booker, 543 U.S. 220 (2005), because a
jury did not find that he had committed an aggravated felony. The district court
denied M r. Ruiz-Carranza’s habeas petition, finding that the petition was
untimely and that M r. Ruiz-Carranza had waived his right to collateral relief in
his plea agreement. The district court also denied M r. Ruiz-Carranza’s petition
on the merits, holding that M r. Ruiz-Carranza admitted to the prior convictions in
the plea agreement, that Booker does not apply retroactively to cases on collateral
review, and that prior convictions are not facts that must be proved to a jury. The
district court did not act on M r. Ruiz-Carranza’s request for a COA, and we deem
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the district court’s failure to act a denial of a COA. 10th Cir. R. 22.1(C). M r.
Ruiz-Carranza then filed an application for a COA in this Court.
II. Claims on A ppeal
The denial of a motion for relief under 28 U.S.C. § 2255 may be appealed
only if the district court or this Court first issues a COA. 28 U.S.C. §
2253(c)(1)(B). A COA will issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” Id. § 2253(c)(2). In order to
make such a showing, a petitioner must demonstrate that “reasonable jurists could
debate whether . . . 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. M cDaniel, 529 U.S. 473, 483-84 (2000) (internal quotation
marks omitted).
At the outset, we note that the district court properly found that M r. Ruiz-
Carranza’s habeas petition was untimely. “A motion by a federal prisoner for
postconviction relief under 28 U.S.C. § 2255 is subject to a one-year time
limitation that generally runs from ‘the date on which the judgment of conviction
becomes final.’” Clay v. United States, 537 U.S. 522, 524 (2003) (quoting 28
U.S.C. § 2255(1)). Although the start of the limitations period can be delayed if
the right asserted by the defendant is one that has been newly recognized by the
Suprem e C ourt and made retroactively applicable to cases on collateral review,
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see 28 U.S.C. § 2255(3), M r. Ruiz-Carranza does not assert such a right. Booker,
the Supreme Court decision on which he bases his claim, is not retroactively
applicable to cases on collateral review. See United States v. Bellamy, 411 F.3d
1182, 1186 (10th Cir. 2005). The limitations period therefore runs from the date
his conviction became final. Because M r. Ruiz-Carranza did not file a direct
appeal, his conviction became final ten days after the judgment was entered on
M arch 30, 2004, or on Tuesday, April 13, 2004. See Fed. R. App. P. 4(b)(1)(A )(i)
(notice of appeal must be filed within ten days after entry of judgment); 4(b)(6)
(judgment is entered when entered on criminal docket); 26(a)(2) (excluding
intermediate Saturdays, Sundays, and legal holidays when the period is less than
eleven days). He therefore had until April 13, 2005 to file his habeas petition,
and his petition filed on July 22, 2005 was untimely.
Even were we to find that M r. Ruiz-Carranza’s habeas petition was timely
filed, he is not entitled to relief. In his request for a COA before this Court, he
claims that increasing his sentence based on a prior conviction for an aggravated
felony is unconstitutional under Booker. Booker, however, “does not apply
retroactively to initial habeas petitions.” Bellamy, 411 F.3d at 1186 (denying a
COA to a federal prisoner, sentenced in 2003, who raised a Booker challenge).
Thus, M r. Ruiz-Carranza cannot challenge his sentence under Booker, as he raised
this claim for the first time on collateral review.
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III. Conclusion
Accordingly, we D EN Y Juan Jose Ruiz Carranza’s request for a COA and
DISM ISS this appeal.
Entered for the Court,
M ichael W . M cConnell
Circuit Judge
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