                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      October 11, 2006
                   UNITED STATES COURT OF APPEALS
                                                                    Elisabeth A. Shumaker
                                 TENTH CIRCUIT                          Clerk of Court




 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                        No. 05-3215
                                                 (D.C. No. 04-CV-3371-SAC)
 v.
                                                (D.C. No. 01-CR-40087-SAC)
                                                           (Kansas)
 BRY AN E C. M END ENH ALL,

          Defendant-Appellant.




                                    ORDER *


Before HA RTZ, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Bryane C. M endenhall, proceeding pro se, seeks a certificate of

appealability (COA) to challenge the district court’s denial of his petition to

vacate, set aside, or correct his sentence under 28 U .S.C. § 2255. W e exercise

jurisdiction under 28 U .S.C. § 2253(c)(1), and liberally construe M r. Thomas’

pleadings and submissions to this court. See Haines v. Kerner, 404 U.S. 519, 520

(1972). Because w e do not find debatable the district court’s resolution of M r.

M endenhall’s claims, we deny his application for a COA and dismiss his appeal.


      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
      M r. M endenhall w as sentenced as a career offender under U .S.S.G. §

4B1.1(a) after pleading guilty to two federal drug charges. On direct appeal, he

challenged the district court’s application of the career offender provision,

asserting that his two prior state court convictions were related to one another and

should not have been counted separately to bring him within the ambit of

guideline section 4B1.1(a). W e disagreed with M r. M endenhall’s position and

affirmed the district court. See United States v. M endenhall, 67 Fed. Appx. 565

(10th Cir. 2003).

      In his § 2255 petition, M r. M endenhall presented the sole argument that the

sentencing court’s application of the career offender provision violated his Sixth

Amendment rights pursuant to Blakely v. Washington, 542 U.S. 296 (2004), and

United States v. Booker, 125 S. Ct. 738 (2005). The district court denied his

petition and did not rule on his application for a COA.

      W e may issue a CO A only “if 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). W hen a court

dismisses a habeas petition on procedural grounds, we may issue a COA only if

“jurists of reason would find it debatable w hether the district court was correct in

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its procedural ruling.” Slack v. M cDaniel, 529 U .S. 473, 484 (2000). W e must

therefore review the claims in M r. M endenhall’s habeas petition and make a

general assessment of their merits. Id. at 336. However, we are not required to

engage in a full inquiry as to the “factual or legal bases adduced in support of the

claims. In fact, the statute forbids it.” Id. M r. M endenhall is not required to

prove the merits of his case to obtain a COA, but he must demonstrate “something

more than the absence of frivolity or the existence of mere good faith on his . . .

part.” Id. at 338 (internal quotations and citation omitted). W ith these principles

in mind, we have carefully reviewed M r. M endenhall’s brief, the record of these

proceedings, and the district court’s order.

      The district court denied M r. M endenhall’s motion on two different

grounds. It first concluded that the sentencing court’s use of the career offender

provision did not violate M r. M endenhall’s Sixth Amendment rights because

Booker expressly confirmed the rule established in Apprendi v. New Jersey, 530

U.S. 466 (2000), that the fact of a prior conviction need not be submitted to a jury

or proved beyond a reasonable doubt. See Booker, 125 S. Ct. 765. Therefore, it

was appropriate for the sentencing court to decide w hether prior convictions were

related for purposes of the career offender guideline.

      The district court then noted that M r. M endenhall could not succeed on his

petition in any event, because Sixth Amendment Booker claims can only be raised

in “cases on direct review.” Booker, 125 S. Ct. at 769. See also United States v.

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Bellam y, 411 F.3d 1182, 1186-87 (10th Cir. 2005) (holding neither Booker nor

Blakely can be applied retroactively); United States v. Prince, 400 F.3d 844, 849

(10th Cir. 2005) (“Blakely does not apply retroactively to convictions that were

already final at the time the Court decided Blakely, June 24, 2004.”). Therefore,

the court held it could not retroactively apply the rule announced in Booker to M r.

M endenhall’s request for collateral review.

      W e have reviewed the district court’s order in light of the standards laid out

in M iller-El, and conclude that reasonable jurists would not find debatable the

grounds upon w hich the court denied M r. M endenhall’s motion. Accordingly, w e

D EN Y M r. M endenhall’s request for a COA and DISM ISS his appeal.

                                       SUBM ITTED FOR THE COURT

                                       Stephanie K. Seymour
                                       Circuit Judge




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