                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           JAN 24 2005
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,
                                                        No. 04-1299
 vs.                                             (D.C. No. 03-D-2297 (CBS))
                                                          (D. Colo.)
 MARCELINO HERNANDEZ-
 MORALES, also known as Marcelino
 Hernandez, also known as Marcelino
 H. Morales, also known as Marcelino
 Moral,

        Defendant - Appellant.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.


       Petitioner-Appellant Marcelino Hernandez-Morales, a federal inmate

appearing pro se, seeks a certificate of appealability (“COA”) to challenge the

district court’s denial of his 28 U.S.C. § 2255 motion and a subsequent motion to

alter or amend the judgment that raised claims pursuant to Blakely v. Washington,

124 S. Ct. 2531 (2004). Where the district court denies a habeas petition on the

merits, a COA should issue when the petition “demonstrate[s] that reasonable

jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where the

district court denies a petition on procedural grounds, a COA should only issue

when the petitioner “shows, at least, that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district was correct in its

procedural ruling.” Id.; see also Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

Because we determine that Mr. Hernandez-Morales has not made such a showing,

we deny a COA and dismiss the appeal.

      Mr. Hernandez-Morales pleaded guilty to one count of unlawful reentry

into the United States following deportation subsequent to a conviction for an

aggravated felony. 8 U.S.C. § 1326(a) & (b)(2). He objected at sentencing to a

twelve-level enhancement for having been previously convicted of a

drug-trafficking offense for which the sentence imposed was thirteen months or

less. U.S.S.G. § 2L1.2(b)(1)(B). Both the district court and this court on direct

appeal rejected his claim that the enhancement should have been contained in the

indictment pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000). United

States v. Hernandez-Morales, No. 02-1521, 2003 WL 21750745, at *1 (10th Cir.

July 29, 2003).

      Mr. Hernandez then filed his § 2255 motion claiming (1) ineffective

assistance of counsel based on counsel’s promise that the sentence would not


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include the enhancement, (2) his plea was not knowingly made given the alleged

misrepresentation and the lack of an adequate translator during the plea process,

and (3) the district court improperly applied the enhancement not in conformity

with the Sentencing Guidelines. The district court rejected all three grounds. R.

Doc. 61. Thereafter, Mr. Hernandez-Morales filed a motion to alter or amend

judgment claiming that Blakely related to his third claim. R. Doc. 62 at 2. On

motion of the government, the district court determined that Mr. Hernandez-

Morales was attempting to raise a new claim in the motion to alter or amend and

directed the clerk to transfer the motion to the court of appeals as a second or

successive § 2255 motion. R. Doc. 69.

      Thereafter, Mr. Hernandez-Morales on his own applied to this court for

leave to file a second or successive § 2255 motion on Blakely grounds. A panel

of this court denied leave and dismissed the matter on the grounds that the

Supreme Court has not held Blakely applicable to the federal sentencing

guidelines, let alone retroactively to review cases on collateral review.

Hernandez-Morales v. United States, No. 04-1335, Order at 2 (Oct. 7, 2004).

      In seeking a COA in this case (04-1299), Mr. Hernandez-Morales raises

only the applicability of Blakely. This claim is not reasonably debatable–the

district court lacked jurisdiction over the motion to alter or amend the judgment

as a second or successive § 2255 motion, and the court of appeals has rejected the


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same claim.

     Accordingly, we DENY COA and DISMISS the appeal.

                                Entered for the Court



                                Paul J. Kelly, Jr.
                                Circuit Judge




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