                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                        October 21, 2005
                                TENTH CIRCUIT
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 05-2113
 v.                                                    D. New Mexico)
 ALFREDO CASTRO-PINEDA,                       (D.C. No. CIV-03-1246 JC/LCS)

              Defendant - Appellant.


                                       ORDER


Before HARTZ, Circuit Judge, BARRETT, Senior Circuit Judge, and
McCONNELL, Circuit Judge.


      Alfredo Castro-Pineda pleaded guilty to conspiracy to possess with intent to

distribute more than 500 grams of a methamphetamine mixture and on

October 21, 2002, was sentenced to 168 months in prison. He did not appeal that

conviction. On October 24, 2003, he filed a habeas motion under 28 U.S.C.

§ 2255. That motion raised three ineffective-assistance-of-counsel claims: (1)

counsel failed to argue to the district court that a firearm found in his home was

unrelated to the drug activity and could not be used to enhance his sentence; (2)

counsel failed to convince the court that he met the safety-valve requirements of

18 U.S.C. § 3553(f); and (3) counsel failed to object to the presentence report and

move for a two-level reduction based on his role as a “minor participant.” The
government responded to these claims, and the case was referred to a magistrate

judge who appointed counsel and set the case for oral argument.

      With counsel appointed, Mr. Castro-Pineda filed an unopposed motion to

vacate the scheduled oral argument so that both sides could file briefs relating to

Blakely v. Washington, 542 U.S. 296 (2004). The magistrate judge granted the

motion to vacate oral argument, and ordered Mr. Castro-Pineda to file an amended

motion. The order stated that “[t]he Amended Motion may introduce new claims

as well as re-introduce claims that were filed in the original [motion]. The

Amended Motion may also address . . . and discuss solely whether it should be

applied retroactively.” R. Doc. 14. Mr. Castro-Pineda filed an amended habeas

motion on September 7, 2004. The amended motion did not raise the arguments

that were raised in his original pro se motion. Instead, the amended motion

argued only that Blakely was retroactive and, in the alternative, that his habeas

motion should be treated as a direct appeal.

      The magistrate judge issued proposed findings and recommended that the

habeas motion be denied because Blakely was not retroactive and because his case

was not before the court on direct review. The magistrate judge also noted that

the amended motion did not raise the issues raised in the original motion. Before

the district court ruled, Mr. Castro-Pineda filed a motion to proceed pro se. In

that motion he alleged that he had spoken with his court-appointed attorney, who


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informed him that he would not be filing objections to the magistrate judge’s

proposed disposition. He also indicated that his attorney had a “conflict of

interest” because he had failed to reintroduce the original claims. R. Doc. 22 at 2.

The magistrate judge granted the motion to proceed pro se and gave Mr. Castro-

Pineda additional time to file objections. Mr. Castro-Pineda filed his objections

and also stated that the issues raised in his original pro se motion were abandoned

without his consent.

      The district court adopted the magistrate judge’s proposed findings, noting

that this court had ruled in the interim that Blakely was not retroactive. The

district court also addressed the claims raised in the original motion and found

that they were without merit. The district court denied a certificate of

appealability (COA), which is now sought from this court.

                                  DISCUSSION

      “A certificate of appealability may issue . . . only if the applicant has made

a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). This means that the applicant must show “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. McDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, the applicant must


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show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id. If the petition was denied on procedural grounds, the

applicant faces a double hurdle. Not only must the applicant make a substantial

showing of the denial of a constitutional right, but he must also show “that jurists

of reason would find it debatable . . . whether the district court was correct in its

procedural ruling.” Id. “Where a plain procedural bar is present and the district

court is correct to invoke it to dispose of the case, a reasonable jurist could not

conclude either that the district court erred in dismissing the petition or that the

petition should be allowed to proceed further.” Id. Mr. Castro-Pineda has not

met this burden.

      We review the district court’s factual findings for clear error and its legal

conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir. 2001). No

reasonable jurist could dispute the district court’s resolution of Mr. Castro-

Pineda’s claims. Neither Blakely nor United States v. Booker, 125 S. Ct. 738

(2005), is retroactive, see United States v. Bellamy, 411 F.3d 1182, 1186-88 (10th

Cir. 2005), and there is no reason to consider this habeas application as a direct

appeal. The district court also properly concluded that the claims raised in the

original pro se motion were without merit.




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       We therefore DENY a COA for substantially the same reasons as the

district court.

                                     ENTERED FOR THE COURT


                                     Harris L Hartz
                                     Circuit Judge




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