                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                       October 28, 2005
                                TENTH CIRCUIT
                                                                          Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                     No. 05-1273
       v.                                               D. Colorado
 RAUL ATAYDE,                                       (D.C. Nos. 05-S-566
                                                     and 99-CR-300-S)
              Defendant - Appellant.


                                       ORDER


Before HARTZ, Circuit Judge, BARRETT, Senior Circuit Judge, and
McCONNELL, Circuit Judge.


      Mr. Raul Atayde was convicted by a jury on numerous drug charges and

sentenced to 365 months in prison. The conviction was affirmed on direct appeal,

United States v. Hinojosa-Gonzalez, 68 Fed. Appx. 918 (10th Cir. 2003), and on

February 23, 2004, the Supreme Court denied his petition for a writ of certiorari.

Atayde v. United States, 540 U.S. 1205 (2004).

      On March 24, 2005, Mr. Atayde signed and mailed a motion to vacate his

sentence under 28 U.S.C. § 2255. The motion was filed with the district court on

March 28, 2005. Relying on Blakely v. United States, 524 U.S. 296 (2004), and

United States v. Booker, 125 S. Ct. 738 (2005), it alleges (1) a due process

violation because the judge was unaware of his sentencing discretion and (2) a
violation of his right to a jury trial. The district court denied the motion as barred

by the statute of limitations, and denied a request for a certificate of appealability

(COA). Mr. Atayde now seeks a COA from this court.

      “A certificate of appealability may issue . . . only if the applicant has made

a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). This means that the applicant must show “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) (internal quotation marks omitted). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id. If the petition was denied on procedural grounds, the

applicant faces a double hurdle. Not only must the applicant make a substantial

showing of the denial of a constitutional right, but he must also show “that jurists

of reason would find it debatable . . . whether the district court was correct in its

procedural ruling.” Id. “Where a plain procedural bar is present and the district

court is correct to invoke it to dispose of the case, a reasonable jurist could not

conclude either that the district court erred in dismissing the petition or that the

petition should be allowed to proceed further.” Id. Mr. Atayde has not met this

burden.


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      We review the district court’s factual findings for clear error and its legal

conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir. 2001).

The district court correctly found that Mr. Atayde’s motion was barred. His

sentence became final on February 23, 2004, when the Supreme Court denied his

petition for a writ of certiorari. See United States v. Willis, 202 F.3d 1279, 1280-

81 (10th Cir. 2000). His motion for habeas relief was mailed on March 24, 2005.

Under the “prison mailbox rule” this is the date on which the motion was filed for

purposes of 28 U.S.C. § 2255. See Price v. Philpot, 420 F.3d 1158, 1163-64

(10th Cir. 2005). Mr. Atayde’s motion was therefore filed more than one year

after his date of conviction became final and is barred by the statute of limitations

in 28 U.S.C. § 2255.

      Mr. Atayde argues that he had one year from Booker to file his claim. He

would be correct if Booker were “retroactively applicable to cases on collateral

review.” 28 U.S.C. § 2255. But Booker is not retroactively applicable, and

neither is Blakely. See United States v. Bellamy, 411 F.3d 1182, 1186-88 (10th

Cir. 2005). Mr. Atayde attempts to overcome this by arguing that his claim is

based on Hicks v. Oklahoma, 447 U.S. 343 (1980). In that case the Supreme

Court held that a defendant was prejudiced by an instruction that required the jury

to impose a 40-year prison sentence, thereby removing all discretion from the

jury, in violation of Oklahoma state law. From this, Mr. Atayde argues that he


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was denied due process because the judge in his case was confined by

unconstitutional guidelines when he should have had more discretion. But even

though Mr. Atayde relies on Hicks, that case avails him nothing without Booker,

which, as noted, we do not apply retroactively to cases on collateral review.

      Finally, Mr. Atayde argues that this procedural bar is overcome by the

actual-innocence exception. See United States v. Cervini, 379 F.3d 987, 991

(10th Cir. 2004). But he does not even allege any new evidence disputing the

facts found by the court at sentencing, and his bare assertions are not enough. See

Schlup v. Delo, 513 U.S. 298, 327 (1995) (“To establish [actual innocence], the

petitioner must show that it is more likely than not that no reasonable juror would

have convicted him in the light of the new evidence.”).

      We DENY a COA and dismiss the appeal.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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