                                                                            F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                              June 29, 2005
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.                                                     No. 04-2244
                                            (D.C. Nos. CIV-03-1070 BB/LAM and
 CARMELO CALLEJAS,                                     CR-00-732 BB)
                                                        (Dist. N.M.)
       Defendant-Appellant.


                     ORDER DENYING A CERTIFICATE
                          OF APPEALABILITY



Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      Carmelo Callejas seeks a Certificate of Appealability (“COA”) to appeal

the district court’s denial of his 28 U.S.C. § 2255 petition. Because we agree

with the district court, and because Callejas cannot raise an initial Sixth

Amendment claim in a § 2255 petition, we DENY a COA and DISMISS.

      Callejas was convicted and sentenced on five narcotics-related charges,

which this court affirmed on direct appeal. In his § 2255 petition before the

district court, he raised five general claims: (1) wrongful conviction of

conspiracy in the absence of a co-conspirator; (2) insufficient evidence supporting

his conviction on drug charges; (3) insufficient evidence supporting his
conviction for possession of a firearm; (4) error in calculating a cash-to-drugs

conversion for purposes of sentencing; and (5) ineffective assistance of counsel.

As to the first four claims, the district court found that they had previously been

adjudicated on direct appeal, 1 and therefore could not be raised in a § 2255

petition. See United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989)

(“[I]ssues disposed of on direct appeal generally will not be considered on a

collateral attack by a motion pursuant to § 2255.”). As to the ineffective

assistance of counsel claim, the district found that there was no evidence

demonstrating that trial counsel’s performance was constitutionally deficient or

prejudicial under Strickland v. Washington, 466 U.S. 668, 687 (1984).

      In his appeal from the district court’s denial of his § 2255 petition, Callejas

raises an ineffective assistance of counsel claim as well as a claim that his

sentence violates the Sixth Amendment because the district court found facts

relevant to sentencing as required by the Sentencing Guidelines. 2 In order to

appeal the denial of his § 2255 petition, Callejas must first obtain a COA, which

may issue only upon “a substantial showing of the denial of a constitutional




      1
       United States v. Callejas, 2003 WL 21300340 (10th Cir. June 6, 2003)
(unpublished opinion).
      2
       Callejas relies on Blakely v. Washington, 124 S.Ct. 2531 (2004), for his
Sixth Amendment claim.

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right.” 28 U.S.C. § 2253(c)(2). 3 This standard requires a petitioner to establish

“that reasonable jurists could debate whether (or, for that matter, agree that) 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, 484 (2000) (quotation omitted).

      We conclude that Callejas’s ineffective assistance of counsel claim must

fail for substantially the same reasons as set forth by the district court. With

regard to Callejas’s Sixth Amdendment claim, we have held that we will not apply

Blakely retroactively to initial § 2255 petitions for collateral relief. United States

v. Price, 400 F.3d 844, 845 (10th Cir. 2005). Therefore, he is not entitled to

resentencing.

      No reasonable jurist would debate whether Callejas’s § 2255 petition

should have been granted. Accordingly, we DENY the request for a COA and

DISMISS.

                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge


      3
        Callejas’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”); therefore, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)).

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