                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           July 20, 2005
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.                                                      No. 04-1457
                                                        (D. Colorado)
 JOSE MERCED TALAMANTES-                            (D.Ct. No. 04-M-2135)
 ALDRETE,

       Defendant-Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY
                    AND DISMISSING APPEAL


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



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      On January 6, 2003, Jose Merced Talamantes-Aldrete was indicted in the

United States District Court for the District of Colorado for illegal reentry after

deportation subsequent to an aggravated felony conviction (possession of cocaine)

in violation of 8 U.S.C. § 1326(a) and (b)(2). Talamantes-Aldrete entered into a
plea agreement with the United States. In the plea agreement, Talamantes-Aldrete

stipulated to the facts underlying the charge and was notified that the possible

sentencing range was twenty-four to sixty-three months imprisonment based on a

twelve level increase to his base offense level for his prior felony drug

conviction. See U.S.S.G. §2L1.2(b)(1)(B) (providing for a twelve level increase

to the base offense level if the defendant was previously deported after a

conviction for a felony drug trafficking offense). On March 6, 2003, in his

statement in advance of plea of guilty, Talamantes-Aldrete waived his right to a

jury trial and to appellate review of his conviction, but specifically reserved the

right to appeal “the question of whether a proper sentence was imposed.” (R.

Doc. 18 at 4.) On June 12, 2003, Talamantes-Aldrete was sentenced to thirty-

seven months imprisonment and two years supervised release. Judgment was

entered on June 13, 2003. He did not file a direct appeal of his sentence.

      On October 14, 2004, Talamantes-Aldrete filed a pro se 1 28 U.S.C. § 2255

motion. In his § 2255 motion, Talamantes-Aldrete alleged his counsel was

ineffective for failing to advise him of his Sixth Amendment right to have all

aggravating sentencing facts found by a jury pursuant to Apprendi v. New Jersey,

530 U.S. 466 (2000), and Blakely v. Washington, 540 U.S. 965, 124 S.Ct. 2531



      1
        We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).

                                           -2-
(2004). He also claimed he was sentenced in violation of Apprendi and Blakely

because the district court enhanced his sentence based on his prior drug

conviction. The district court denied his motion on October 15, 2004. On

October 24, 2004, Talamantes-Aldrete filed a notice of appeal, which the district

court construed as a request for a certificate of appealability (COA) and denied on

November 1, 2004. On November 24, 2004, Talamantes-Aldrete filed a request

for a COA in this Court. In his request, Talamantes-Aldrete again argues his

counsel was ineffective and that his sentence was impermissibly enhanced based

on his prior drug conviction.

      A COA is a jurisdictional pre-requisite to our review. Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). One 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); Miller-El, 537 U.S. at 336. The petitioner must demonstrate that

reasonable jurists would find the court’s assessment of the claims debatable or

wrong. Miller-El, 537 U.S. at 327 (citing Slack v. McDaniel, 529 U.S. 473, 484

(2000)). In reviewing for a COA, we are forbidden from giving full consideration

to the factual or legal bases urged in support of the claims. Id. at 336. To the

contrary, we preview the claims and make a general assessment of their merit. Id.

Although a petitioner, in requesting a COA, is not required to prove the merits of

the case, the threshold of proof is higher than good faith or lack of frivolity. Id.


                                         -3-
at 338.

      We easily dispose of Talamantes-Aldrete’s Apprendi and Blakely claims,

which we also analyze under the Supreme Court’s recent decision in United States

v. Booker, 125 S.Ct. 738 (2005). Apprendi, Blakely, and Booker specifically

exempted prior convictions from the requirement that any fact that increases a

sentence beyond the statutory maximum must be proved to a jury beyond a

reasonable doubt. Apprendi, 530 U.S. at 490; Blakely, 124 S. Ct. at 2536-37;

Booker, 125 S.Ct. at 756. In addition, Talamantes-Aldrete stipulated to the facts

underlying his charge, including his prior conviction for the possession of

cocaine. As such, there was no judicial fact-finding at his sentencing implicating

his Sixth Amendment rights. Booker, 125 S.Ct. at 756; United States v. Porter,

405 F.3d 1136, 1143 (10th Cir. 2005) (“The Sixth Amendment rule announced in

Apprendi, and extended to the Guidelines in Booker is inapplicable where a

sentence is determined based on admitted facts.”) (internal citations omitted).

      Additionally, Blakely and Booker do not retroactively apply to cases on

collateral review. United States v. Bellamy, -- F.3d –, No. 04-5145, 2005 WL

1406176 at * 4 (10th Cir. June 16, 2005) (stating that inasmuch as Booker merely

extended Blakely to invalidate the mandatory provisions of the federal sentencing

guidelines, it too is not retroactively applicable to cases on collateral review);

United States v. Price, 400 F.3d 844, 849 (10th Cir. 2005) (“Blakely does not


                                          -4-
apply retroactively to convictions that were already final at the time the Court

decided Blakely, June 24, 2004.”). Talamantes-Aldrete’s conviction was final

prior to the decision in Blakely, 2 and therefore neither Blakely nor Booker apply

to his conviction.

       Lastly, Talamantes-Aldrete’s ineffective assistance claim is without merit.

Counsel is not ineffective for failing to advance a futile argument. Dever v.

Kansas State Penitentiary, 36 F.3d 1531, 1537 (10th Cir. 1994).

       Based on the foregoing, there can be no debate as to the district court’s

resolution of Talamantes-Aldrete’s claim. Accordingly, we DENY Talamantes-

Aldrete’s request for a COA and DISMISS the appeal.

                                            Entered by the Court:

                                            Terrence L. O’Brien
                                            United States Circuit Judge




       2
         A conviction is final under § 2255 either at the conclusion of direct appeal or the
expiration of time for seeking such review. United States v. Burch, 202 F.3d 1274, 1278
(10th Cir. 2000). Under FED. R. APP. P. 4(b)(1)(A)(i), Talamantes-Aldrete had ten days
to appeal from the entry of his judgment on the criminal docket on June 13, 2003. See
FED. R. APP. P. 4(b)(6) (defining “entry” in criminal cases as the entry of the judgment or
order on the criminal docket). FED. R. APP. P. 26(a)(2) requires the exclusion of
intermediate Saturdays, Sundays and legal holidays when computing a time period under
the rules if the period is less than eleven days. Under this provision, the last day to file an
appeal would have been June 27, 2003. Thus, Talamantes-Aldrete’s conviction became
final on June 28, 2003, when the ten day period had elapsed without an appeal.

                                              -5-
