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

 UNITED STATES OF AMERICA,

                   Plaintiff-Appellee,                       No. 04-8102
           v.                                                (D. of Wyo.)
 MANUEL SAVALA RAMIREZ,                                (D.C. No. 03-CV-12-J)

                   Defendant-Appellant.


                ORDER DENYING CERTIFICATE OF APPEALABILITY                      *




Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.                **




       Defendant-Appellant Manuel Savala Ramirez, a federal inmate appearing

pro se, seeks a certificate of appealability (“COA”) allowing him to appeal the

district court’s order denying relief on his motion pursuant to 28 U.S.C. § 2255.

On appeal, Ramirez also argues that his sentence violates the principles of         Blakely

v. Washington , 124 S. Ct. 2531 (2004).


       *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      Because Ramirez has failed to make a “substantial showing of the denial of

a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny the COA and dismiss the

appeal. We also deny Ramirez’s claims under     Blakely.

                                    Background

      On January 23, 2001, a two-count indictment was filed against Ramirez in

the United States District Court in Cheyenne, Wyoming, charging him with

conspiracy to possess with the intent to distribute and to distribute

methamphetamine, and distribution of methamphetamine. Following the

indictment, Ramirez was arrested in Washington and transferred back to

Wyoming. Thereafter, a two-count information was filed against him in the

Eastern District of Washington, charging him with conspiracy to possess with the

intent to distribute and distribution of more than 500 grams of methamphetamine,

and money laundering.

      Prior to trial in Wyoming, Ramirez waived indictment on the Washington

charges and agreed to have them transferred to Wyoming. He pled guilty to both

counts of the Washington information and stipulated to the relevant conduct in

Count One involving 18 pounds of a mixture containing methamphetamine, and

the relevant conduct in Count Two involving money laundering. The government

eventually dismissed the original Wyoming charges. On January 18, 2002, the




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district court sentenced Ramirez to 320 months of incarceration on Count One and

240 months of incarceration on Count Two. Ramirez did not appeal his sentence.

      Thereafter, Ramirez filed a § 2255 motion, citing four allegations of

ineffective assistance of counsel. First, Ramirez alleged that counsel did not visit

him in jail and inappropriately permitted him to be interviewed for two

presentence investigation reports. Second, Ramirez alleged that counsel had a

conflict of interest because he was being investigated for money laundering

charges related to Ramirez’s case. Third, Ramirez alleged that counsel was

intoxicated at sentencing. Fourth, Ramirez alleged that counsel failed to pursue a

direct appeal. In a thorough opinion, the district court rejected each claim and

declined to grant COA. On appeal, Ramirez brings an additional claim under

Blakely.

                                      Analysis

I. Certificate of Appealability

      This court may only grant a COA and entertain Ramirez’s appeal if he “has

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

2253(c)(2). See also Slack v. McDaniel   , 529 U.S. 473, 483-84 (2000). To make

the necessary showing, “a petitioner 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


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deserve encouragement to proceed further.”            Miller-El v. Cockrell , 537 U.S. 322,

336 (2003) (internal citations omitted). The role of this court is not to engage in

full consideration of the factual or legal bases adduced in support of the claims,

but rather to conduct an “overview of the claims in the habeas petition and a

general assessment of their merits.”       Id. In this case, Ramirez’s four claims of

ineffective assistance of counsel lack merit.

       In order to succeed on a claim of unconstitutional ineffective assistance of

counsel, Ramirez must satisfy the standards of          Strickland v. Washington , 466 U.S.

668 (1984), which consists of two components. First, Ramirez must show that his

attorney “made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.”               Id. at 687. Second, Ramirez

must show that the “deficient performance prejudiced the defense.”           Id. This

requires showing that “counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.”     Id. We agree with the

district court that Ramirez has not met this standard.

       A. Presentencing Conduct

       Ramirez contends that counsel was ineffective because he failed to visit

Ramirez in jail in Cheyenne. However, as the district court correctly noted,

Ramirez failed to show prejudice with respect to this accusation. Without such a

showing, this claim fails.


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      Ramirez also contends that counsel inappropriately allowed him to be

interviewed for two separate presentence investigation reports. Again, Ramirez

fails to show how he was prejudiced by being interviewed without the presence of

his attorney. Thus, this claim also fails.

      Finally, Ramirez contends that counsel did not fully explain the contents of

his presentence report. He does not allege, however, that counsel failed to review

the report with him. As the district court noted, the sentencing transcript

indicates that Ramirez and his counsel did in fact discuss the contents of the

report prior to the sentencing hearing. In any event, Ramirez again fails to show

prejudice with respect to counsel’s alleged failure to adequately address his

concerns about the contents of his presentence report.

      B. Conflict of Interest

      Next, Ramirez argues that counsel was ineffective due to his conflict of

interest. To support this allegation, Ramirez states that counsel was being

investigated for money laundering charges related to Ramirez’s case, and that he

sounded “nervous” in a telephone call to Ramirez.

      To prevail on his claim of alleged conflict of interest, Ramirez must

demonstrate that an actual conflict of interest adversely affected his lawyer's

performance.   See Cuyler v. Sullivan , 446 U.S. 335, 348 (1980);   Selsor v. Kaiser ,

22 F.3d 1029, 1032 (10th Cir. 1994). An actual conflict of interest exists “if


                                             -5-
counsel was forced to make choices advancing other interests to the detriment of

his client. Without a showing of inconsistent interests, any alleged conflict

remains hypothetical, and does not constitute ineffective assistance.”   United

States v. Alvarez , 137 F.3d 1249, 1252 (10th Cir. 1998) (internal citations

omitted). Ramirez’s allegations do not meet this standard. He fails to point to

specific instances of actual conflict in which counsel made any choices advancing

any interest other than Ramirez’s. As such, we agree with the district court that

this claim lacks merit.

       C. Use of Alcohol

       Ramirez also claims that counsel was ineffective because he was

intoxicated at Ramirez’s sentencing hearing. However, we agree with the district

court that Ramirez can point to nothing in the record to support the truthfulness of

this claim. The record, in fact, shows counsel’s performance at the hearing was

adequate and no inference of intoxication can be drawn. Because Ramirez cannot

show prejudice, this claim also lacks merit.

       D. Direct Appeal.

       Finally, Ramirez claims that counsel was ineffective because he failed to

pursue a direct appeal. Again, however, Ramirez has failed to adequately

demonstrate that counsel acted against his wishes or failed to discuss appeal

options with him. Thus, this claim also lacks merit.


                                            -6-
       Because we agree with the district court that Ramirez has not shown a

denial of a constitutional right as provided by 28 U.S.C. § 2253(c)(2), we must

deny a certificate of appealability.

II. Blakely Claims

       On appeal, Ramirez argues that his sentence was unconstitutional under

Blakely v. Washington , 124 S. Ct. 2531 (2004) and Apprendi v. New Jersey, 530

U.S. 466 (2000). However, as this court recently held in United States v. Price,

No. 04-7058, 2005 WL 535361 (March 8, 2005), because Blakely provides a new

rule of criminal procedure, it is not subject to retroactive application on collateral

review. Specifically, Blakely does not apply retroactively to convictions that were

already final at the time the Supreme Court decided Blakely on June 24, 2004. Id.

at *5. As such, Ramirez’s claim is inappropriate in this forum.

       For the aforementioned reasons, we DENY COA and DENY Ramirez’s

claim that his sentence is unconstitutional under       Blakely .

                                                    Entered for the Court

                                                    Timothy M. Tymkovich
                                                    Circuit Judge




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