                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                          August 23, 2005
                  UNITED STATES COURT OF APPEALS
                                                                      PATRICK FISHER
                                  TENTH CIRCUIT                                Clerk




 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
                                                         No. 05-3075
                                               (D.C. Nos. 04-CV-3301-RDR and
 v.
                                                   02-CR-40091-01-RDR)
                                                           (Kansas)
 RODNEY D. THOMAS,

           Defendant-Appellant.




      ORDER DENYING CERTIFICATE OF APPEALABILITY


Before SEYMOUR, HARTZ and MCCONNELL, Circuit Judges.


       Rodney Thomas, proceeding pro se, seeks a certificate of appealability

(COA) to challenge the district court’s denial of his petition for sentencing relief

under 28 U.S.C. § 2255. 1 He also seeks to proceed in forma pauperis (ifp) in this

appeal. We exercise jurisdiction under 28 U.S.C. § 2253(c)(1), and in compliance

with Haines v. Kerner, 404 U.S. 519, 520 (1972), liberally construe Mr. Thomas’

pleadings and submissions to this court. Proceeding as such, we deny Mr.

Thomas’ request for COA and his motion to proceed ifp.

       1
           The district court denied Mr. Thomas’ application for a COA.
      On October 8, 2002, Mr. Thomas entered a plea of guilty to possession with

intent to distribute five grams or more of a substance containing a detectable

amount of cocaine base in violation of 21 U.S.C. § 841(a)(1). He was sentenced

on August 1, 2003, to a term of imprisonment of 100 months. Judgment against

him was filed on August 4, 2003. Mr. Thomas did not appeal. Then, on

September 5, 2004, Mr. Thomas filed a motion to vacate, set aside, or correct his

sentence pursuant to 28 U.S.C. § 2255. He alleged he was entitled to sentencing

relief pursuant to Blakely v. Washingon, 542 U.S. 296 (2004). The district court

denied Mr. Thomas’ § 2255 petition, noting the Supreme Court’s ruling in Blakely

and its ruling in United States v. Booker, 125 S. Ct. 738 (2005), do not apply

retroactively to cases on collateral review. The court subsequently denied Mr.

Thomas’ petition for COA, and Mr. Thomas now seeks relief before our court,

citing to both Booker and Blakely as the bases of his claims.

      The issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S.

322, 336 (2003). A COA can issue only “if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A

petitioner satisfies this standard by demonstrating that jurists of reason could

disagree with the district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve encouragement

to proceed further.” Miller-El, 537 U.S. at 327. “The COA determination under


                                          -2-
§ 2253(c) requires an overview of the claims in the habeas petition and a general

assessment of their merits.” Id. at 336. “This threshold inquiry does not require

full consideration of the factual or legal bases adduced in support of the claims.

In fact, the statute forbids it.” Id. While Mr. Thomas, in applying for a COA, is

not required to prove the merits of his case, he must demonstrate “something

more than the absence of frivolity or the existence of mere good faith on his . . .

part.” Id. at 338 (internal quotations and citation omitted). In addition, because

Mr. Thomas seeks to proceed ifp in this appeal, he must demonstrate that he is

financially unable to pay the requisite fees, and that there exists “a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on

appeal.” McIntosh v. United States Parole Comm’n, 115 F.3d 809, 812-13 (10th

Cir. 1997) (internal quotation omitted). With these principles in mind, we have

carefully reviewed Mr. Thomas’ brief, the record of these proceedings, and the

district court’s order.

      We have held that neither Blakely or Booker can be applied retroactively to

cases on collateral review. See United States v. Bellamy, 411 F.3d 1182, 1186-87

(10th Cir. 2005) (holding neither Blakely nor Booker can be applied

retroactively); United States v. Prince, 400 F.3d 844, 849 (10th Cir. 2005)

(“Blakely does not apply retroactively to convictions that were already final at the

time the Court decided Blakely, June 24, 2004.”). Accordingly, reasonable jurists


                                          -3-
would not debate the district court’s determination that the Supreme Court’s

rulings in Blakely and Booker cannot be applied retroactively to Mr. Thomas’

case. Mr. Thomas’ request for a COA and his motion to proceed ifp are

DENIED.

                                              SUBMITTED FOR THE COURT

                                              Stephanie K. Seymour
                                              Circuit Judge




                                        -4-
