                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         June 27, 2005
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk


UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                         No. 04-2332
v.                                                (District of New Mexico)
                                                   (D.C. No. 04-CV-1129)
MICHAEL M. CARRASCO,

       Defendant-Appellant.




                                     ORDER


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      This matter is before the court on Michael M. Carrasco’s pro se request for

a certificate of appealability (“COA”). Carrasco seeks a COA so that he can

appeal the district court’s denial of his 28 U.S.C. § 2255 motion. See

28 U.S.C. § 2253(c)(1)(B) (providing that no appeal may be taken from a “final

order in a proceeding under section 2255” unless the movant first obtains a COA).

Because Carrasco has not “made a substantial showing of the denial of a

constitutional right,” id. § 2253(c)(2), this court denies his request for a COA and

dismisses this appeal.
      Carrasco pleaded guilty to a single count of conspiracy to possess with

intent to distribute cocaine in violation of 21 U.S.C. §§ 841(b)(1)(C) and 846. On

August 13, 2002, the district court sentenced Carrasco to a term of imprisonment

of ninety-seven months. On September 30, 2004, Carrasco filed the instant

§ 2255 motion. In his motion, Carrasco asserted that the district court had

improperly enhanced his sentence based on judge-found facts in violation of the

Supreme Court’s then-recent decision in Blakely v. Washington, 124 S. Ct. 2531

(2004). The district court conducted a retroactivity analysis pursuant to Teague v.

Lane, 489 U.S. 288 (1989), and concluded that Blakely did not apply retroactively

to initial § 2255 motions. Accordingly, the district court dismissed Carrasco’s

motion. Carrasco then filed a request for a COA with the district court. While

the request for a COA was pending, the Supreme Court handed down its decision

in United States v. Booker, 125 S. Ct. 738 (2005). In Booker, the Supreme Court

applied the rule set out in Blakely to the United States Sentencing Guidelines. Id.

at 756. The district court then issued an order denying Carrasco’s request for a

COA; the order specifically noted that the district court had taken into account the

Booker decision in analyzing whether Carrasco was entitled to a COA.

      In his filings in this court, Carrasco asserts the district court erred in

concluding that Blakely and Booker do not apply retroactively to initial § 2255

motions. Carrasco’s assertion is, however, foreclosed by two recent decisions of


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this court. In United States v. Price, 400 F.3d 844, 849 (10th Cir. 2005), this

court held that “Blakely does not apply retroactively to convictions that were

already final at the time the Court decided Blakely, June 24, 2004.” Likewise, in

United States v. Bellamy, 2005 WL 1406176, at *4 (10th Cir. June 16, 2005), we

held that “like Blakely, Booker does not apply retroactively on collateral review.”

Thus, Price and Bellamy make clear that the district court was correct in

concluding that Carrasco could not raise his Blakely-based sentencing claim on

collateral review.

      To be entitled to a COA, Carrasco must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

showing, he 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.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted). In evaluating whether Carrasco has satisfied his burden, this court

undertakes “a preliminary, though not definitive, consideration of the [legal]

framework” applicable to each of his claims. Id. at 338. Although Carrasco need

not demonstrate his appeal will succeed to be entitled to a COA, he must “prove

something more than the absence of frivolity or the existence of mere good faith.”

Id.


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      Having undertaken a review of Carrasco’s application for a COA and

appellate filings, the district court’s orders, and the entire record before this court

pursuant to the framework set out by the Supreme Court in Miller-El, this court

concludes that Carrasco is not entitled to a COA. As this court’s recent decisions

in Price and Bellamy make clear, the district court’s resolution of Carrasco’s

§ 2255 motion is not reasonably subject to debate and the issue he seeks to raise

on appeal is not adequate to deserve further proceedings. Accordingly, this court

DENIES Carrasco’s request for a COA and DISMISSES this appeal.

                                         Entered for the Court
                                         PATRICK FISHER, Clerk of Court


                                         By
                                                Deputy Clerk




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