                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      October 25, 2006
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court


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

              Plaintiff- Appellee,                       No. 06-2134
       v.                                              (D. New M exico)
 JESUS FALLS,                                   (D.C. No. Civ-05-254 JP/W DS)

              Defendant-Appellant.




                                      OR DER


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.


      Jesus Falls seeks a certificate of appealability (“COA”) to appeal the

district court’s order denying his 28 U.S.C. § 2255 petition to vacate, modify, or

set aside his sentence. In addition, M r. Falls seeks to proceed in form a pauperis.

In his § 2255 petition, M r. Falls alleged ineffective assistance of counsel and a

violation of his Sixth Amendment rights articulated in Apprendi v. New Jersey,

Blakely v. Washington, and Booker v. United States. 530 U.S. 466 (2000); 542

U.S. 296 (2004); 543 U.S. 220 (2005). For substantially the same reasons set forth

by the district court in its well-reasoned order, we deny M r. Falls’s application

for a COA and dismiss this matter. W e also deny his motion to proceed in form a

pauperis.
                                I. BACKGROUND

      In December of 2002, a jury in the United States District Court for the

District of New M exico found M r. Falls guilty of distribution of 50 grams or more

of a cocaine substance containing a cocaine base in violation of 21 U.S.C. §§

841(a)(1) and 846(b)(1)(A) and conspiracy to comm it that offense in violation of

21 U.S.C. §§ 841(a)(1) and 846. M r. Fall’s arrest and conviction were the result

of a 2001 “buy/bust” set up by the A lbuquerque Police Department in which M r.

Falls and his co-conspirator, M r. Rodriguez, sold approximately five ounces of

cocaine-based substance to an under-cover officer.

      On M arch 7, 2005, M r. Falls filed the instant pro se 28 U.S.C. § 2255

petition to vacate, set aside, or correct his sentence. He argued that he had

received ineffective assistance of counsel in violation of the Sixth Amendment

because his counsel failed to 1) introduce a tape recording of the drug deal at

issue; 2) introduce his cell phone records; and 3) present expert witness testimony

regarding the absence of fingerprints on the plastic bags that contained the drugs.

M r. Falls also sought relief on the grounds that his sentence was unconstitutional

under Apprendi v. New Jersey, Blakely v. Washington, and Booker v. United

States. 530 U.S. at 466; 542 U.S. at 296; 543 U.S. at 220.

      The district court dismissed M r. Falls’ sentencing claims because 1) M r.

Falls did not raise his Apprendi claims on appeal; and 2) because Blakely did not

apply retroactively to convictions that w ere final on June 24, 2004. U.S. v. Price,

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400 F.3d 844, 849 (10th Cir. 2005). M r. Falls conviction became final on June 5,

2004. The district court directed the government to respond to M r. Falls’

ineffective assistance of counsel claims. After reviewing M r. Falls’ brief and the

government response, the magistrate judge recommended that M r. Falls’ § 2255

motion be denied. The district court then reviewed the magistrate judge’s report

and recommendation and M r. Falls’ objections, adopted the magistrate judge’s

report and recommendation, and dismissed M r. Falls’ claims with prejudice.

                                  II. D ISC USSIO N

      In order to obtain a COA, M r. Falls must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). M r. Falls may make

this showing by demonstrating that “jurists of reason could disagree with the

district court’s resolution of the case or that the issues presented were adequate to

deserve encouragement to proceed further.” M iller-El v. Cockrell, 537 U.S. 322,

336 (2003). “[A] claim can be debatable even though every jurist of reason might

agree, after the COA has been granted and the case has received full

consideration, that [the] petitioner will not prevail.” Id. at 338.

      Here, for substantially the same reasons set forth in the magistrate judge’s

report and recommendation, adopted by the district court, we conclude that M r.

Falls is not entitled to a COA. M r. Falls’ ineffective assistance claims satisfy

neither the performance nor the prejudice prong of the test set forth in Strickland

v. Washington. 466 U.S. 668, 686-87 (1984). Primarily, as the district court


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found, M r. Falls failed to support his allegations that the audio tape of the drug

deal was audible or that it contained any exculpatory evidence. Secondly, M r.

Falls cannot demonstrate that his cell phone records would have been of any

probative value at his trial. Thirdly, there is no indication that a fingerprint

expert would have been of any value to M r. Falls case since the government

stipulated to the fact the his fingerprints were not on the bags of crack. In sum,

there is no colorable argument that M r. Falls’ attorney was ineffective for failing

to introduce the tape recording, M r. Falls’ cell-phone records or call a fingerprint

expert.

      Turning to M r. Falls’ sentencing claims, as the district court noted, M r.

Falls’ Apprendi claim was procedurally barred because he failed to raise the issue

on appeal. United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996) (“A § 2255

motion is not available to test the legality of a matter which should have been

raised on direct appeal.”). Furthermore, no relief is available under Booker or

Blakely because the decisions do not apply retroactively. Price, 400 F.3d at 844;

Booker, 543 U.S. at 268 (holding that Booker applies only to pending or on direct

review at the time of the decision).

      In addition, we note that M r. Falls briefly alludes to a Confrontation Clause

claim in his brief. W e do not consider this claim for two reasons. Primarily,

since M r. Falls did not raise the issue below, it is not properly before us. See

Cummings v. Norton, 393 F.3d 1186, 1190 (10th Cir. 2005) (noting the general


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rule that issues not raised in the district court are waived). Secondly, to the

extent that M r. Falls discusses the alleged violation of his rights under the

Confrontation Clause, he does not adequately state his grounds for relief; rather

his argument consists of a single conclusory statement.

                                III. C ON CLU SIO N

      Accordingly, we DENY M r. Falls’ application for a COA, we DENY his

motion to proceed in form a pauperis, and we D ISM ISS the m atter.



                                 Entered for the Court,



                                 Robert H. Henry
                                 Circuit Judge




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