                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                       December 2, 2005
                                TENTH CIRCUIT
                                                                          Clerk of Court

 UNITED STATES OF AMERICA,
              Plaintiff - Appellee,                      No. 05-2162
 v.                                            (D.C. No. CIV-05-226 LH/RLP)
 FRANCISCO JAVIER RUIZ-                               (D. New Mexico)
 GODINEZ,
              Defendant - Appellant.


                                      ORDER *


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.



      Francisco Javier Ruiz-Godinez, a federal inmate appearing pro se, seeks to

appeal the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set

aside, or correct his sentence. The matter is before this court on Ruiz-Godinez’s

request for a certificate of appealability (“COA”). See 28 U.S.C. § 2253(c)(1)(B)

(providing that no appeal may be taken from a “final order in a proceeding under

section 2255” unless the movant first obtains a COA). Because Ruiz-Godinez has

not made a “substantial showing of the denial of a constitutional right,” this court

denies his request for a COA and dismisses this appeal. 28 U.S.C. § 2253(c)(2)


      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
(providing that a COA “may issue . . . only if the applicant has made a substantial

showing of the denial of a constitutional right”).

      On May 4, 2001, the district court entered judgment against Ruiz-Godinez,

sentencing him to a 108-month term of imprisonment for his conviction on drug

conspiracy charges. Ruiz-Godinez filed the instant § 2255 motion on

February 28, 2005, asserting that the district court improperly enhanced his

sentence through the utilization of judge-found facts in violation of Blakely v.

Washington, 124 S. Ct. 2531 (2004) and United States v. Booker, 125 S. Ct. 738

(2005). Relying on this court’s decision in United States v. Price, 400 F.3d 844,

849 (10th Cir 2005), the district court concluded neither Blakely nor Booker

applied retroactively on collateral appeal. Hence, the district court dismissed

Ruiz-Godinez’s motion with prejudice and granted judgment in favor of the

respondent United States.

      This court cannot grant Ruiz-Godinez a COA unless he can demonstrate

“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) (quotations omitted). In evaluating whether

Ruiz-Godinez has carried his burden, this court undertakes “a preliminary, though

not definitive, consideration of the [legal] framework” applicable to each of his


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claims. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). Ruiz-Godinez is not

required to demonstrate that his appeal will succeed to be entitled to a COA. He

must, however, “prove something more than the absence of frivolity or the

existence of mere good faith.” Id. (quotations omitted).

      This court has reviewed Ruiz-Godinez’s application for a COA and

appellate brief, the district court’s order, and the entire record on appeal pursuant

to the framework set out by the Supreme Court in Miller-El and concludes that

Ruiz-Godinez is not entitled to a COA. The district court’s resolution of Ruiz-

Godinez’s claim is not reasonably subject to debate and the claim is not adequate

to deserve further proceedings. This court has specifically and explicitly held that

neither Blakely nor Booker applies retroactively on collateral review. Price, 400

F.3d at 849; United States v. Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005).

Accordingly, Ruiz-Godinez has not “made a substantial showing of the denial of a

constitutional right” and is not entitled to a COA. 28 U.S.C. § 2253(c)(2).

      This court DENIES Ruiz-Godinez’s request for a COA and DISMISSES

this appeal.

                                        Entered for the Court



                                        Michael R. Murphy
                                        United States Circuit Judge



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