F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS July 5, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 05-2205
(D.C. Nos. CIV-05-411 JC and
v.
CR-01-39 JC)
(New M exico)
M A RIO JO SE M O N TES-FELIX,
Defendant-Appellant.
ORDER *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
M ario M ontes-Felix, a federal prisoner proceeding pro se, seeks a
certificate of appealability (COA) to challenge the district court’s dismissal of his
28 U.S.C. § 2255 petition, see 28 U.S.C. § 2253(c)(1). He also seeks to proceed
in form a pauperis (ifp) on appeal. 1 Exercising jurisdiction pursuant to 28 U.S.C.
§§ 1291, 2253(c), we conclude jurists of reason would not find debatable the
district court’s rejection of M r. M ontes-Felix’s petition for relief. W e therefore
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, or collateral estoppel.
1
Because M r. M ontes-Felix is proceeding pro se, we construe his filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972).
deny his application for a COA. W e also deny his request to proceed ifp.
M r. M ontes-Felix pled guilty to a charge of possession with intent to
distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A). On
direct appeal, he unsuccessfully challenged the district court’s calculation of his
sentence. See United States v. M ontes-Felix, 74 Fed. Appx. 870 (10th Cir. 2003).
He subsequently filed a petition in district court under 28 U.S.C. § 2255, alleging
his sentence violated United States v. Booker, 543 U.S. 220 (2005). The district
court dismissed the petition, concluding the Booker claim was barred on collateral
review. The court then denied M r. M ontes-Felix’s application to proceed ifp on
appeal, ruling that the application lacked any “reasoned, non-frivolous argument
in law or fact.” Rec., doc. 6.
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.” M iller-El v. Cockrell, 537 U.S. 322, 327 (2003). Based on
our review of the record on appeal and M r. M ontes-Felix’s submissions to our
court, we do not think jurists of reason would find debatable the district court’s
dismissal of M r. M ontes-Felix’s petition. Booker does not apply retroactively on
collateral review. U nited States v. Bellamy, 411 F.3d 1182, 1188 (10th Cir.
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2005). 2 M oreover, because M r. M ontes-Felix has not raised “a reasoned,
nonfrivolous argument on the law and the facts in support of the issues raised on
appeal,” M acIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997),
we also deny his request to proceed ifp.
Having DENIED M r. M ontes-Felix’s request for COA and his request to
proceed ifp, we DISM ISS the appeal.
SUBM ITTED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
2
M r. M ontes-Felix raises tw o additional arguments. First, he appears to
assert the district court erroneously engaged in a blanket denial of a COA before
he even requested one. He posits his case should therefore be remanded to the
district court for an individualized assessment of his claims prior to that court
denying him the right to proceed on appeal. To the contrary, the district court
clearly identified that M r. M ontes-Felix sought habeas relief for an alleged
violation of his constitutional rights pursuant to United States v. Booker, 543 U.S.
220 (2005), and then clearly articulated its reasons for denying that claim.
Because that was the only claim, the court was not required to provide a separate
analysis of why M r. M ontes-Felix had failed to make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(a)(2).
M r. M ontes-Felix also raises an ineffective assistance of counsel argument
for the first time on appeal. Because he failed to present this claim to the district
court, we deem it w aived. See Parker v. Scott, 394 F.3d 1302, 1307 (10th Cir.
2005).
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