                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                 UNITED STATES COURT OF APPEALS                            July 25, 2005

                                 TENTH CIRCUIT                         PATRICK FISHER
                                                                                Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 04-2326
                                                  (D.C. Nos. 04-CV-1153 and
 v.
                                                         01-CR-1714)
                                                        (New Mexico)
 RUBEN GARCIA HERNANDEZ,

          Defendant-Appellant.




                                      ORDER


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Ruben G. Hernandez applies pro se 1 for a certificate of appealability (COA)

of the district court’s denial of his petition for sentencing relief under 28 U.S.C. §

2255 2. Mr. Hernandez contends his sentence violated the recent Supreme Court

decisions in Blakely v. Washington, 542 U.S. 296 (2004), and United States v.

Booker, 125 S. Ct. 738 (2005). Exercising jurisdiction under 28 U.S.C. §

2253(c)(1), we deny a COA and dismiss the appeal.

      1
       We liberally construe Mr. Hernandez’s pro se application. See Cummings
v. Evans, 161 F.3d 610, 613 (10th Cir. 1998).
      2
          The district court denied Mr. Hernandez’s application for a COA.
      Mr. Hernandez pled guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1). His indictment and

presentence report listed four prior convictions for violent felonies. The district

court sentenced him to 180 months imprisonment with five years of supervised

release under § 924(e)(1), which subjects a person “who violates section

922(g)...and has three previous convictions...for a violent felony” to a minimum

of fifteen years imprisonment. Following the conviction, Mr. Hernandez’s

counsel filed an Anders brief, seeking permission to withdraw because there were

no non-frivolous issues that could be raised on direct appeal. This court granted

Mr. Hernandez’s counsel’s request and dismissed the appeal. United States v.

Hernandez, 87 Fed. Appx. 135, 2004 WL 198308 (10th Cir. 2004). Mr.

Hernandez petitioned the district court for post-conviction relief, which it denied.

      Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322,

335-36 (2003). A COA can issue 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.” Miller-El, 537 U.S. at 327. “The COA determination under

§ 2253(c) requires an overview of the claims in the habeas petition and a general


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assessment of their merits.” Id. at 336. “This threshold inquiry does not require

full consideration of the factual or legal bases adduced in support of the claims.

In fact, the statute forbids it.” Id. While Mr. Hernandez is not required to prove

the merits of his case, 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).

      Mr. Hernandez contends the use of his prior convictions to enhance his

sentence violated Blakely and Booker. The Supreme Court explicitly excepted

prior convictions from its holding that any fact increasing a sentence must be

established by a plea of guilty or a jury verdict. Booker, 125 S. Ct. at 756.

Moreover, neither Blakely nor Booker apply retroactively to Mr. Hernandez’s

case. A new rule of criminal procedure “will not be applicable to those cases

which have become final before the new rules are announced.” Teague v. Lane,

489 U.S. 288, 310 (1989). We have held that “a new rule is made retroactive to

cases on collateral review only when the Supreme Court explicitly holds that the

rule it announced applies retroactively to such cases.” Bey v. United States, 399

F.3d 1266, 1268 (10th Cir. 2005). In Leonard v. United States, 383 F.3d 1146,

1148 (10th Cir. 2004), we determined Blakely did not apply retroactively.

Additionally, in United States v. Bellamy, 2005 WL 1406176, at *2 (10th Cir.

June 16, 2005), we held Booker announced a new rule of constitutional law that


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does not apply retroactively to cases on collateral review.

      We have carefully reviewed the record of these proceedings and the order

of the district court. We adopt its reasoning, conclude that reasonable jurists

would not debate its resolution of the constitutional claims presented, and DENY

the request for a certificate of appealability.


                                        SUBMITTED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




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