                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    October 21, 2008
                   UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff–Appellee,
                                                         No. 08-7060
                                             (D.C. No. 6:07-CV-00407-RAW and
 v.
                                                   6:04-CR-00061-RAW-1)
                                                         (E.D. Okla.)
 ISMAEL MORALES,

       Defendant–Appellant.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.


      Ismael Morales requests a certificate of appealability (“COA”) following

the district court’s denial of his 28 U.S.C. § 2255 application for a writ of habeas

corpus alleging ineffective assistance of counsel at sentencing. Because the

district court denied Morales a COA, he may not appeal the district court’s

decision absent a grant of COA by this court. § 2253(c)(1)(B). A COA may issue

“only if the applicant has made a substantial showing of the denial of a

constitutional right.” § 2253(c)(2). This requires Morales to 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 deserve encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). Because Morales

cannot make this showing, we deny Morales’s application for a COA and dismiss

his appeal.

      Morales was arrested after he purchased 84 grams of methamphetamine at a

home in Arkoma, Oklahoma, on April 15, 2004. He pleaded guilty to one count

of possession with intent to distribute methamphetamine under 21 U.S.C.

§ 841(a)(1), (b)(1)(A)(viii), and 18 U.S.C. § 2. The district court sentenced

Morales to 174 months’ imprisonment. This court vacated Morales’s sentence

because it contravened the Supreme Court’s holding in United States v. Booker,

543 U.S. 220 (2005), and remanded for resentencing.

      On remand, the district court imposed the identical sentence. United States

v. Morales, 232 F. App’x 800, 802 (10th Cir. 2007) (unpublished). The district

judge calculated Morales’s sentence including a two-level enhancement for

possession of a firearm under the United States Sentencing Guidelines

(“Guidelines”) § 2D1.1(b)(1). In a letter to the United States Probation Office

(“Probation Office”), Morales’s attorney objected to the application of this

enhancement because Morales contended that the firearms were located in his

codefendant’s locked bedroom, and he had no knowledge of their existence. The

Probation Office addressed this objection in an addendum to Morales’s

presentence report, concluding that there was nonetheless sufficient evidence of

                                        -2-
possession to support applying the firearm enhancement. Morales’s attorney

objected again at resentencing, but the court took judicial notice of the firearm

testimony from the original sentencing hearing and overruled the objection.

Morales, 232 F. App’x at 802. On direct appeal, Morales argued that the district

court applied the Guidelines as though they were mandatory, and that the court

erred in applying the enhancement for possession of a firearm. Id. This court

rejected those claims and affirmed Morales’s sentence. Id. at 805.

      Morales then filed an application for a writ of habeas corpus under 28

U.S.C. § 2255 arguing that his trial counsel was ineffective at sentencing for

failing to contest whether Morales lived at the house where the methamphetamine

sale occurred and the firearms were found. Morales claims that this would have

demonstrated that he did not possess the firearms when he was arrested for

possession of methamphetamine with intent to distribute. The district court

denied the § 2255 application, a subsequent motion for reconsideration, and

Morales’s application for a COA.

      In order to determine whether Morales has made a substantial showing of

the denial of a constitutional right, we examine the merits of his ineffective

assistance claim. Under Strickland v. Washington, 466 U.S. 668, 687 (1984),

Morales must show that his counsel’s actions fell below an objective standard of

reasonableness, and that this deficiency prejudiced the proceedings. In order for

the conduct to be prejudicial, there must be “a reasonable probability that, but for

                                        -3-
counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. Morales is not entitled to a COA because he cannot

demonstrate prejudice.

      Morales contends that his sentence would have been different but for trial

counsel’s failure to argue that Morales did not live where the firearms were

found. He urges that, had his attorney properly contested this assertion, the

district court could not have found that Morales possessed the firearms for

purposes of the § 2D1.1 enhancement.

      Morales’s attorney objected to the application of the sentencing

enhancement based on the location of the firearms in a locked room and

Morales’s unawareness of these firearms. Accordingly, we cannot say there is a

reasonable probability that the court would have declined to apply the firearm

enhancement had Morales’s attorney also raised the narrow factual issue

regarding Morales’s place of residence. Residence in the home where the

firearms were located was certainly not necessary for the judge to find, by a

preponderance of the evidence, that Morales possessed the firearms.

Consequently, because Morales cannot demonstrate prejudice under Strickland,

we conclude that he has not made a substantial showing of the denial of a

constitutional right.




                                        -4-
    Morales’s application for a COA is DENIED, and his appeal is

DISMISSED.


                                  ENTERED FOR THE COURT




                                  Carlos F. Lucero
                                  Circuit Judge




                                   -5-
