                                                                      F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      May 19, 2006
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


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

               Plaintiff-Appellee,                      No. 05-3321
          v.                                         District of Kansas
 JU A N JOSE R UIZ-C AR RA N ZA,             (D.C. Nos. 05-CV-3318-RDR and
                                                 03-CR-40118-RD R-ALL)
               Defendant-Appellant.



                                      OR DER *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Juan Jose Ruiz Carranza, 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 M r. Carranza 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. Id. § 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       This order is not binding precedent, except under the doctrines of law of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

      M r. Ruiz-Carranza was charged with and pleaded guilty to illegal reentry

into the United States after having been convicted of an aggravated felony in

violation of 8 U.S.C. §§ 1326(a) and (b)(2). In his plea agreement, M r. Ruiz-

Carranza admitted that he had been convicted of two aggravated felonies in the

State of O regon before his deportation and reentry. M r. Ruiz-Carranza also

waived his right to appeal and to collaterally attack his sentence. The district

court accepted his plea and sentenced him to 41 months’ imprisonment.

Judgment was entered on M arch 30, 2004. M r. Ruiz-Carranza did not file a direct

appeal.

      M r. Ruiz-Carranza commenced this habeas corpus action in the district

court on July 22, 2005. In his petition, he argued that his sentence is

unconstitutional under United States v. Booker, 543 U.S. 220 (2005), because a

jury did not find that he had committed an aggravated felony. The district court

denied M r. Ruiz-Carranza’s habeas petition, finding that the petition was

untimely and that M r. Ruiz-Carranza had waived his right to collateral relief in

his plea agreement. The district court also denied M r. Ruiz-Carranza’s petition

on the merits, holding that M r. Ruiz-Carranza admitted to the prior convictions in

the plea agreement, that Booker does not apply retroactively to cases on collateral

review, and that prior convictions are not facts that must be proved to a jury. The

district court did not act on M r. Ruiz-Carranza’s request for a COA, and we deem

                                         -2-
the district court’s failure to act a denial of a COA. 10th Cir. R. 22.1(C). M r.

Ruiz-Carranza then filed an application for a COA in this Court.



                               II. Claims on A ppeal

      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. §

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

showing of the denial of a constitutional right.” Id. § 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. M cDaniel, 529 U.S. 473, 483-84 (2000) (internal quotation

marks omitted).

      At the outset, we note that the district court properly found that M r. Ruiz-

Carranza’s habeas petition was untimely. “A motion by a federal prisoner for

postconviction relief under 28 U.S.C. § 2255 is subject to a one-year time

limitation that generally runs from ‘the date on which the judgment of conviction

becomes final.’” Clay v. United States, 537 U.S. 522, 524 (2003) (quoting 28

U.S.C. § 2255(1)). Although the start of the limitations period can be delayed if

the right asserted by the defendant is one that has been newly recognized by the

Suprem e C ourt and made retroactively applicable to cases on collateral review,

                                          -3-
see 28 U.S.C. § 2255(3), M r. Ruiz-Carranza does not assert such a right. Booker,

the Supreme Court decision on which he bases his claim, is not retroactively

applicable to cases on collateral review. See United States v. Bellamy, 411 F.3d

1182, 1186 (10th Cir. 2005). The limitations period therefore runs from the date

his conviction became final. Because M r. Ruiz-Carranza did not file a direct

appeal, his conviction became final ten days after the judgment was entered on

M arch 30, 2004, or on Tuesday, April 13, 2004. See Fed. R. App. P. 4(b)(1)(A )(i)

(notice of appeal must be filed within ten days after entry of judgment); 4(b)(6)

(judgment is entered when entered on criminal docket); 26(a)(2) (excluding

intermediate Saturdays, Sundays, and legal holidays when the period is less than

eleven days). He therefore had until April 13, 2005 to file his habeas petition,

and his petition filed on July 22, 2005 was untimely.

      Even were we to find that M r. Ruiz-Carranza’s habeas petition was timely

filed, he is not entitled to relief. In his request for a COA before this Court, he

claims that increasing his sentence based on a prior conviction for an aggravated

felony is unconstitutional under Booker. Booker, however, “does not apply

retroactively to initial habeas petitions.” Bellamy, 411 F.3d at 1186 (denying a

COA to a federal prisoner, sentenced in 2003, who raised a Booker challenge).

Thus, M r. Ruiz-Carranza cannot challenge his sentence under Booker, as he raised

this claim for the first time on collateral review.




                                           -4-
                               III. Conclusion

      Accordingly, we D EN Y Juan Jose Ruiz Carranza’s request for a COA and

DISM ISS this appeal.

                                           Entered for the Court,

                                           M ichael W . M cConnell
                                           Circuit Judge




                                     -5-
