                                                                           F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                      December 20, 2005
                                TENTH CIRCUIT
                                                                           Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 05-3186
          v.                                          District of Kansas
 RENE HERRERA, JR.,                             (D.C. Nos. 03-20024-01-JWL,
                                                       05-3045-JWL)
               Defendant-Appellant.




                                      ORDER *


Before HARTZ, SEYMOUR, and McCONNELL, Circuit Judges.


      Rene Herrera, a federal prisoner proceeding pro se, seeks a certificate of

appealability (COA) that would allow him to appeal from the district court’s order

denying his habeas corpus petition under 28 U.S.C. § 2255. See 28 U.S.C. §

2253(c)(1)(B). Because we conclude that Mr. Herrera has failed to make “a

substantial showing of the denial of a constitutional right,” we deny his request

for a COA, and we dismiss the 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       This order is not binding precedent, except under the doctrines of law of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.
                                  I. Background

      Mr. Herrera was indicted for conspiracy to distribute methamphetamine and

distribution of methamphetamine. He pleaded guilty to the conspiracy charge on

August 18, 2003. In the plea agreement, Mr. Herrera waived his right to directly

appeal or collaterally challenge his sentence. On November 3, 2003, he was

sentenced to 168 months’ imprisonment. When sentencing Mr. Herrera, the

district court made factual findings about drug quantities under the preponderance

of the evidence standard.

      On February 1, 2005, Mr. Herrera filed a motion to vacate, set aside or

correct his sentence pursuant to 28 U.S.C. § 2255, in which he asked the district

court to vacate his sentence under United States v. Booker, 543 U.S. 220 (2005).

The government, in response, filed a motion to enforce Mr. Herrera’s plea

agreement and waiver of rights. On April 7, 2005, the district court denied Mr.

Herrera’s motion, finding that he waived his right to collaterally challenge his

sentence and, alternatively, that Booker does not apply retroactively to claims on

collateral review. The district court denied Mr. Herrera’s request for a COA on

May 6, 2005.

                              II. Claims on Appeal

      The denial of a motion for relief under 28 U.S.C. § 2255 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §


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2253(c)(1)(B). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to make such a showing, a petitioner must demonstrate that “reasonable jurists

could debate whether . . . 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, 475 (2000) (internal

quotation marks omitted).

      In this request for a COA, Mr. Herrera makes three arguments: (1) the

district court should have held an evidentiary hearing on his claim of ineffective

assistance of counsel, (2) his waiver of the right to appeal his sentence was not

knowing and voluntary, and (3) lengthening his term of imprisonment based on

facts about drug quantities determined by a judge, rather than by a jury, is

constitutional error remediable on collateral review. We turn first to Mr.

Herrera’s contention that the district court should have afforded him an

evidentiary hearing on his claim of ineffective assistance of counsel.

      Mr. Herrera never presented a broad claim of ineffective assistance of

counsel to the district court. In his habeas corpus petition before the district

court, Mr. Herrera stated only that his “sentence is unconstitutional under the

Fifth and Sixth Amendments.” R. Doc. 35, p. 5. Later, in his response brief

before the district court, he claimed that his waiver of collateral relief was invalid


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because counsel was ineffective by inaccurately asserting that Mr. Herrera would

receive a ten-year sentence. As the district court noted, however, Mr. Herrera did

not “suggest that his counsel in any way assured him that his sentence would be

no more than 10 years or otherwise misinformed or improperly counseled him as

to the potential sentence he might receive. Rather, Mr. Herrera state[d] that he

simply ‘assumed’ he would be sentenced to the statutory minimum based on the

facts to which he pled guilty.” Moreover, during the colloquy with the district

court, Mr. Herrera stated that he was aware that the guideline range would be

determined after the presentence investigation, and could be affected by other

information, including information relevant to crimes to which he did not plead

guilty. This provides no basis for a claim of ineffective assistance of counsel.

      As to Mr. Herrera’s remaining claims, we need not decide whether Mr.

Herrera knowingly and intelligently waived his right to collateral review because

his constitutional challenge to his sentence fails. Mr. Herrera claims that the

Supreme Court’s decisions in Blakely v. Washington, 542 U.S. 296 (2004), and

United States v. Booker, 543 U.S. 220 (2005), apply retroactively to invalidate his

sentence. However, this Court has held that “Booker does not apply retroactively

to initial habeas petitions.” United States v. Bellamy, 411 F.3d 1182, 1186 (10th

Cir. 2005) (denying a COA to a federal prisoner, sentenced in 2003, who raised a

Booker challenge). Thus, Mr. Herrera cannot challenge his sentence under


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Booker, as he was sentenced in November 2003 and raised this claim for the first

time on collateral review.



                                III. Conclusion

      Accordingly, we DENY Rene Herrera’s request for a COA and DISMISS

this appeal.

                                              Entered for the Court,

                                              Michael W. McConnell
                                              Circuit Judge




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