                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
              UNITED STATES COURT OF APPEALS                                May 25, 2005

                              TENTH CIRCUIT                         PATRICK FISHER
                                                                               Clerk



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                       No. 04-4295
 v.                                            (D.C. No. 2:04-CV-797-DAK)
                                                           (Utah)
 FELIPE MEZA-HERNANDEZ,

       Defendant-Appellant.




                                    ORDER


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Felipe Meza-Hernandez, a federal prisoner appearing pro se, filed a motion

for a reduction of his sentence pursuant to 28 U.S.C. § 2255. The district court

refused to grant the motion or a certificate of appealability (COA). Because Mr.

Meza-Hernandez has not made a substantial showing of the denial of a

constitutional right, we deny a COA and dismiss the appeal.

      Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 332,

335-36 (2003). To be entitled to a COA, Mr. Meza-Hernandez must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make the requisite showing, Mr. Meza-Hernandez 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, 537 U.S. at 336 (quotations omitted). In deciding whether Mr. Meza-

Hernandez has carried 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 Mr. Meza-Hernandez need not demonstrate that his

appeal will succeed to be entitled to COA, he must “prove something more than

the absence of frivolity or the existence of mere good faith.” Id. (quotations

omitted).

      Mr. Meza-Hernandez pled guilty to illegal reentry in violation of 8 U.S.C. §

1326. Pursuant to the guidelines, his base level offense was eight. See U.S.S.G.

§ 2L1.2(a) (2003). Mr. Meza-Hernandez’s offense level was enhanced sixteen

levels due to the district court’s finding that he was previously deported

subsequent to a conviction for an aggravated felony. Id. § 2L1.2(b)(1)(A). The

district court also applied a three level decrease because Mr. Meza-Hernandez

accepted responsibility for his actions, yielding a total base offense level of

twenty-one. Id. § 3E1.1. Based on that offense level and a criminal history

category of IV, Mr. Meza-Hernandez’s sentencing range was 57 to 71 months.


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The district court sentenced him at the bottom of that range to 57 months

imprisonment followed by 36 months of supervised release. Mr. Meza-Hernandez

timely filed for habeas relief. The district court dismissed his petition and this

appeal followed.

      Mr. Meza-Hernandez first argues that his sentence was unconstitutional

because it was enhanced based on a prior aggravated felony conviction that was

not pled in his indictment. Mr. Meza-Hernandez’s indictment charged him with

one count of reentry by a previously removed felon in violation of 8 U.S.C. §

1326. If a defendant has a previous aggravated felony conviction, § 1326(b),

which carries a maximum sentence of twenty years, applies. The district court

determined § 1326(b) applied and enhanced Mr. Meza-Hernandez’s sentence

sixteen levels due to its finding that he had a prior felony drug trafficking

conviction. Although an indictment must set forth each element of the crime it

charges, the Supreme Court has explicitly held that the constitution does not

require Congress to treat recidivism as an element of the offense. Almendarez-

Torres v. United States, 523 U.S. 224, 235 (1998). Therefore, the government’s

failure to plead Mr. Meza-Hernandez’s drug trafficking conviction in his

indictment does not constitute constitutional error.

      Relying primarily on Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Blakely v. Washington, 124 S. Ct. 2531 (2004), Mr. Meza-Hernandez also argues


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that the Federal Sentencing Guidelines are unconstitutional insofar as they

allowed the district court to enhance his sentence based on prior convictions that

were neither admitted nor proven to the jury. The Supreme Court’s intervening

decision in United States v. Booker, 125 S. Ct. 738 (2005), applying the rule of

Blakely to the Federal Sentencing Guidelines, bears directly on Mr. Meza-

Hernandez’s argument. New rules of criminal procedure, however, are applied

retroactively only to cases pending on direct review or cases that are not yet final.

Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Mr. Meza-Hernandez exhausted

his direct appeal and his case was “final” prior to the Supreme Court’s decisions

in Blakely and Booker. See id. at 321 n.6 (a case is final when “a judgment of

conviction has been rendered, the availability of appeal exhausted, and the time

for a petition for certiorari elapsed or a petition for certiorari finally denied”).

Thus, Blakely and the Supreme Court’s more recent decision in Booker have no

applicability to Mr. Meza-Hernandez’s sentence. See United States v. Price, 400

F.3d 844, 849 (10th Cir. 2005) (Blakely is not retroactively applicable to a case in

which conviction was final before Blakely was decided); United States v. Mora,

293 F.3d 1213, 1219 (10th Cir. 2002) (Apprendi is not retroactively applicable to

initial habeas petitions).

      Mr. Meza-Hernandez’s final contention is that his attorney was

constitutionally ineffective for failing to advise him of his right to attack his


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sentence pursuant to 28 U.S.C. § 2255. In order to prevail on an ineffective

assistance claim, a petitioner must demonstrate both that his attorney’s

performance was deficient and the deficiencies prejudiced his defense. Strickland

v. Washington, 466 U.S 668, 687 (1984). A showing of prejudice requires a

demonstration of “a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. at 694. As

Mr. Meza-Hernandez has raised no meritorious § 2255 claim, his allegations are

simply insufficient to meet the prejudice prong of Strickland. See Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (ruling that even pro se plaintiffs

must allege sufficient facts on which a recognized legal claim can be based, and

that conclusory allegations will not suffice).

      For the foregoing reasons, we DENY Mr. Meza-Hernandez’s application

for a COA and dismiss the appeal.

                                        ENTERED FOR THE COURT

                                        Stephanie K. Seymour
                                        Circuit Judge




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