                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          January 27, 2006
                                 TENTH CIRCUIT                           Elisabeth A. Shumaker
                                                                            Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 05-3247
                                                (D.C. Nos. 04-CV-3303-JWL &
 v.
                                                      03-CR-20135-JWL)
                                                           (Kansas)
 BENITO AGUIRRE-LEON,

          Defendant-Appellant.




                                       ORDER


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Benito Aguirre-Leon, a federal prisoner proceeding pro se, seeks a

certificate of appealability (COA) from our court to challenge the district court’s

dismissal of his 28 U.S.C. § 2255 petition. 1 We exercise jurisdiction pursuant to

28 U.S.C. §§ 1291, 2253(c) and conclude jurists of reason would not find

debatable the district court’s rejection of Mr. Aguirre-Leon’s request for relief.

We therefore deny his application for a COA.

      Mr. Aguirre-Leon entered a guilty plea in federal court to the charge of


      1
       Because Mr. Aguirre-Leon is proceeding pro se, we construe is pleadings and
submissions to this court liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972).
unlawful entry of a previously deported alien. See 8 U.S.C. §§ 1326(a), (b)(2).

The plea agreement included a waiver of Mr. Aguirre-Leon’s right to appeal or

collaterally attack his conviction and sentence. Nonetheless, Mr. Aguirre-Leon

subsequently filed a motion in district court to challenge his sentence under 28

U.S.C. § 2255, claiming his sentence violated Blakely v. Washington, 542 U.S.

296 (2004).

      The district court denied Mr. Aguirre-Leon’s motion on two separate

grounds.

First, the court noted that Mr. Aguirre-Leon’s waiver of his right to appeal or

collaterally attack his conviction and sentence was enforceable pursuant to United

States v. Hahn, 359 F.3d 1315, 1324-25 (10th Cir. 2004) (en banc), Despite Mr.

Aguirre-Leon’s general failure to raise any valid argument otherwise, the district

court, in an abundance of caution, addressed the factors laid out in Hahn to

determine there were no grounds upon which Mr. Aguirre-Leon could contend his

wavier should not be enforced. Second, the court noted that even if Mr. Aguirre-

Leon could sidestep his waiver and bring the instant § 2255 action, his Blakely

argument is precluded on the merits. The court referenced our decision in United

States v. Price, 400 F.3d 844, 845 (10th Cir. 2005), where we expressly held that

Blakely does not apply retroactively to a § 2255 petition.

      A COA should issue only where “the applicant has made a substantial


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

petitioner satisfies this standard by demonstrating that jurists of reason could

disagree with the district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve encouragement

to proceed further.” Miller-El v. Cockrell, 537 U.S. 332, 327 (2003). Similarly,

if a district court dismisses a habeas petition on procedural grounds, a COA may

issue only when “jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484

(2000). Based on our review of the district court’s ruling, the record on appeal,

and Mr. Aguirre-Leon’s submissions to our court, we are not persuaded jurists of

reason would find debatable the district court’s dismissal of Mr. Aguirre-Leon’s

petition.

      We therefore DENY Mr. Aguirre-Leon’s application for a COA and

DISMISS his appeal.

                                        SUBMITTED FOR THE COURT

                                        Stephanie K. Seymour
                                        Circuit Judge




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