F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
January 11, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AM ERICA,
Plaintiff-Appellee,
v. No. 06-4117
(D.C. No. 2:04-CV -730-TS)
CAYETANO M ORENO-V ALLES, (D. Utah)
Defendant-Appellant.
OR DER *
Before KELLY, M cKA Y, and LUCERO, Circuit Judges.
This is a timely pro se § 2255 appeal. The trial court denied a certificate of
appealability, and we consider the appeal a renewal of the request for a certificate
of appeal before this court. Appellant attacks his conviction for illegal reentry
after deportation, which was affirmed in a prior appeal, as well as his sentence on
two grounds. First, Appellant contends that his counsel was ineffective for
allowing a faulty transcript of his deportation hearing to be entered in the record
at trial. Second, Appellant argues that the enhancement of his sentence was
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th
Cir. R. 32.1 (eff. Jan. 1, 2007).
entered in violation of United States v. Booker, 543 U.S. 220 (2005), and Blakely
v. Washington, 542 U.S. 296 (2004).
The trial court ruled that the failure to raise these issues on direct appeal
constituted waivers. In doing so, the court considered the exception based on
ineffective assistance of counsel. W e see no reason to duplicate here the trial
court’s extensive and correct analysis of that issue in holding that Appellant
failed to demonstrate that his “standby” counsel was ineffective. W e similarly
affirm the trial court’s holding that there was no fundamental miscarriage of
justice, for substantially the reasons set forth in the trial court’s memorandum
opinion and order.
W ith respect to Appellant’s challenge to the sentence enhancement, the trial
court appropriately relied on our decision in United States v. Price, 400 F.3d 844,
849 (10th Cir. 2005), in concluding that the Blakely and Booker issues do not
apply retroactively to Appellant’s collateral attack on a judgment that was final
when Booker was issued.
In order for this 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). Nothing in the appeal merits the grant of a certificate of
appealability. Accordingly, we DENY the certificate of appealability, and
AFFIRM the dismissal of Appellant’s § 2255 motion, but GR ANT Appellant’s
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petition to proceed in form a pauperis.
Entered for the Court
M onroe G. M cKay
Circuit Judge
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