                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                              September 23, 2005
                                    TENTH CIRCUIT
                                                                                  Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,
 v.                                                             No. 05-5035
 ROBERTO RAMOS,                                      (D.C. No. 05-CV-100-HDC-PJC)
                                                        (D.C. No. 99-CR-66-HDC)
        Defendant-Appellant.                                   (N.D.Okla.)




                                          ORDER


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


       Proceeding pro se, Roberto Ramos requests a certificate of appealability (“COA”)

so he may appeal the district court’s denial of his habeas petition that he filed pursuant to

28 U.S.C. § 2255.

       In May 2000, a jury convicted Ramos of conspiracy to possess with intent to

distribute methamphetamine and cocaine. Based upon a drug amount of 6.098 kilograms,

the district court sentenced him to 235 months’ imprisonment. On July 8, 2002, this court

affirmed Ramos’s conviction and sentence. United States v. Ramos, No. 00-5089, 42

Fed. Appx. 318, 2002 U.S. App. LEXIS 13622 (10th Cir. July 8, 2002) (unpublished

opinion). Ramos did not file a petition for a writ of certiorari with the United States

Supreme Court.
       On February 5, 2005, Ramos filed a § 2255 petition requesting that his sentence be

vacated pursuant to the recent decision from the Supreme Court in United States v.

Booker, 125 S. Ct. 738 (2005). In his habeas petition, Ramos asserts that his sentence is

unconstitutional because the judge, in imposing sentence, considered facts that were

neither found by a jury nor admitted by Ramos. The district court held that Ramos’s

§ 2255 motion was untimely since he filed his petition more than one year after the date

on which the judgment of conviction became final. The district court further rejected

Ramos’s argument that Booker should be applied retroactively to his case on collateral

appeal. The district court did not rule upon the issuance of a COA.

       Unless the petitioner first obtains a COA, no appeal may be taken from a final

order disposing of a § 2255 petition. See 28 U.S.C. § 2253(c)(1)(B). A COA may issue

“only if the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(2).

       “When the district court denies a habeas petition on procedural grounds without

reaching the prisoner’s underlying constitutional claim, a COA should issue when the

prisoner shows, at least, that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of reason would

find it debatable whether the district court was correct in its procedural rulings.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). In determining whether Ramos has satisfied this

burden, this court undertakes “a preliminary, though not definitive, consideration of the


                                              2
[legal] framework” applicable to each of his claims. Miller-El v. Cockrell, 537 U.S. 322,

338 (2003). To be entitled to a COA, Ramos need not establish that his appeal will

succeed. However, he must “prove something more than the absence of frivolity or the

existence of mere good faith.” Id. (internal quotation marks omitted).

       The district court found that Ramos’s habeas petition was untimely. Ramos did

not file a petition for a writ of certiorari. A one-year period of limitation applies to

Ramos’s habeas petition. 28 U.S.C. § 2255. The limitations period runs from the date on

which the judgment of conviction becomes final, which occurs when the time period for

seeking review from the Supreme Court expires. Clay v. United States, 537 U.S. 522,

525 (2003); United States v. Martin, 357 F.3d 1198, 1200 (10th Cir. 2004). The time for

filing a petition for a writ of certiorari is ninety days after the entry of judgment. Sup. Ct.

R. 13.1.

        In Ramos’s case, the one-year limitations period began to run on October 8, 2002,

which was ninety days after this court affirmed his conviction and sentence. Thus,

Ramos had until October 8, 2003, to file his habeas petition.1 Reasonable jurists would

not debate the district court’s conclusion that Ramos’s petition filed February 5, 2005, is

untimely, and his claim is not adequate to deserve further proceedings.

       As to Ramos’s Booker claim, the district court correctly observed that this court



       1
        Ramos has not argued that the one-year limitations period should be tolled, and
this court will not consider whether Ramos should be entitled to equitable tolling.

                                               3
has held that Booker does not apply retroactively to cases on collateral appeal. See

United States v. Bellamy, 411 F.3d 1182, 1186-87 (10th Cir. 2005); United States v.

Price, 400 F.3d 844, 849 (10th Cir. 2005). Reasonable jurists would not find it debatable

whether the Ramos’s petition states a valid claim of the denial of a constitutional right.

       Ramos’s request for a COA is DENIED and this matter is DISMISSED.

                                                  Entered for the Court


                                                  Mary Beck Briscoe
                                                  Circuit Judge




                                              4
