F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 21, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AM ERICA,
Plaintiff-Appellee, No. 05-2376
v. (D.C. No. CIV-05-1042 JC/LFG)
ANTONIO RAM IREZ-D OM IN GUEZ, (D . New M ex.)
Defendant-Appellant.
OR DER
Before K ELLY, M cK AY, and LUCERO, Circuit Judges.
Appellant is a federal prisoner appearing pro se, seeking relief pursuant to
28 U.S.C. § 2255. Appellant pleaded guilty to charges of reentry of a deported
alien previously convicted of an aggravated felony and was sentenced to fifty-
seven months in prison. He did not appeal his conviction or sentence. Appellant
then filed a petition seeking leave to file a successive habeas petition with this
court that was dismissed as unnecessary, since he had not previously sought
habeas relief. He then filed a § 2255 habeas petition which the district court
denied. M emorandum Opinion and Order, 3 (D.N.M . Nov. 7, 2005).
Appellant, invoking Blakely v. Washington, 542 U.S. 296 (2004), and
United States v. Booker, 543 U.S. 220 (2005), seeks to challenge his sentence.
However, as the district court stated, these Supreme Court holdings are not
available to Appellant on collateral review. M emorandum Opinion and Order,
supra, at 2 (citing U nited States v. Bellamy, 411 F.3d 1182, 1188 (10th Cir.
2005)). Relying on Almendarez-Torres v. United States, 523 U.S. 224 (1998),
Appellant makes an additional argument for sentence reduction. Again, the
district court denied this avenue of support for Appellant’s claims. M emorandum
Opinion and Order, supra, at 2-3.
Appellant now seeks from this court a certificate of appealability. The
issues he raises on appeal are identical to those brought before the district court.
To grant a certificate of appealability, Appellant must make a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (1994).
To meet this burden, Appellant must 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. M cDaniel, 529 U.S. 473,
484 (2000) (quotation omitted).
W e have carefully reviewed Appellant’s brief, the district court’s
disposition, and the record on appeal. Nothing in the facts, the record on appeal,
or Appellant’s filing raises an issue which meets our standard for the grant of a
certificate of appealability. For substantially the same reasons set forth by the
district court judge in its M emorandum Opinion and Order of November 7, 2005,
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we cannot say “that reasonable jurists could debate w hether (or, for that matter,
agree that) the petition should have been resolved in a different manner.” Id.
A ccordingly, w e D EN Y Appellant’s request for a certificate of
appealability and DISM ISS the appeal; however, we GRANT Appellant’s request
to proceed in forma pauperis.
Entered for the Court
M onroe G. M cKay
Circuit Judge
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