                                                                           FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                         UNITED STATES COURT OF APPEALS
                                                                      November 6, 2007
                                                       Elisabeth A. Shumaker
                                  TENTH CIRCUIT            Clerk of Court



 ARCHIE RICHARD STEINHOUR,

           Petitioner-Appellant,
 v.                                                           No. 07-1233
 LOU ARCHULETA, Warden;                                (D.C. No. 07-cv-578-ZLW)
 JOHN SUTHERS, The Attorney General                          (D. Colorado)
 of the State of Colorado,

           Respondents-Appellees.




                                         ORDER *


Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.


       Archie Steinhour, a Colorado state prisoner appearing pro se, seeks a certificate of

appealability (COA) in order to challenge the district court’s denial of his 28 U.S.C. §

2254 petition for federal habeas relief. Because Steinhour has failed to satisfy the

standards for the issuance of a COA, we deny his request and dismiss the matter.

                                             I.

       In October 1998, Steinhour was convicted in Jefferson County (Colorado) District

Court of nine counts of sexual exploitation of a child, one count of third degree sexual



       *
        This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
assault, and one count of being a habitual offender, and was sentenced to a twenty-year

term of imprisonment. Steinhour did not file a direct appeal. He did, however, engage in

two rounds of state post-conviction proceedings, both times arguing that his sentence was

unconstitutional because the state trial court enhanced his sentence on the basis of

judicially-found facts. In the first round of post-conviction proceedings, which he

initiated in July 2001, Steinhour relied on the Supreme Court’s decision in Apprendi v.

New Jersey, 530 U.S. 466 (2000). In the second round of post-conviction proceedings,

Steinhour relied on the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296

(2004). In both sets of proceedings, the state trial court denied relief, the Colorado Court

of Appeals affirmed, and the Colorado Supreme Court refused to grant Steinhour a writ of

certiorari.

       On March 22, 2007, Steinhour filed a federal habeas petition pursuant to 28 U.S.C.

§ 2254. As in his state post-conviction proceedings, Steinhour argued that his sentence

was unconstitutional in light of Apprendi and Blakely. Steinhour also argued that the

state trial court erred in failing to appoint counsel to represent him in connection with his

state post-conviction proceedings. On April 26, 2007, the district court dismissed

Steinhour’s petition and entered judgment against him. In doing so, the district court

concluded that “neither Apprendi nor Blakely applie[d] retroactively to cases on collateral

review.” ROA, Doc. 4 at 2. The district court also noted that “there is no federal

constitutional right . . . to the assistance of counsel in postconviction proceedings.” Id.

(citing Pennsylvania v. Finley, 481 U.S. 551, 556-57 (1987)). The district court

                                              2
subsequently denied Steinhour a COA.

       Steinhour has now renewed his request for a COA with this court. Steinhour has

also filed a motion to proceed in forma pauperis on appeal.

                                              II.

       Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). In other words, a state prisoner may appeal from the denial of federal habeas

relief under 28 U.S.C. § 2254 only if the district court or this court first issues a COA. 28

U.S.C. § 2253(c)(1)(A). A COA may be issued “only if the applicant has made a

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

order to make that showing, a prisoner must demonstrate “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).

       After reviewing the record on appeal, we conclude that Steinhour is unable to

make the requisite showing for the issuance of a COA. It is well settled that neither

Apprendi nor Blakely apply retroactively to criminal judgments, such as Steinhour’s, that

became final prior to their issuance. E.g., United States v. Price, 400 F.3d 844, 849 (10th

Cir. 2005) (holding that Blakely is not retroactive); United States v. Mora, 293 F.3d 1213,

1219 (10th Cir. 2002) (holding that Apprendi is not retroactive). Likewise, it is beyond

dispute that “[t]here is no constitutional right to an attorney in state post-conviction

                                               3
proceedings.” Coleman v. Thompson, 501 U.S. 722, 752 (1991). Thus, reasonable jurists

simply could not “debate whether (or, for that matter, agree that)” Steinhour’s claims

“should have been resolved in a different manner or” were “adequate to deserve

encouragement to proceed further.” Slack, 529 U.S. at 484 (internal quotation marks

omitted).

       The motion for leave to proceed on appeal in forma pauperis and the request for a

COA are DENIED and the appeal is DISMISSED.


                                                 Entered for the Court


                                                 Mary Beck Briscoe
                                                 Circuit Judge




                                             4
