                                                                              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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