                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                        January 5, 2006
                                TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 05-2202
          v.                                       District of New Mexico
 CORNELIUS FIELDS,                            (D.C. No. CIV-05-438 BB/ACT)

               Defendant-Appellant.


                                      ORDER *


Before HARTZ, SEYMOUR, and McCONNELL, Circuit Judges.


      Cornelius Fields, a federal prisoner proceeding pro se, seeks a certificate of

appealability (COA) that would allow him to appeal from the district court’s order

denying his habeas corpus petition under 28 U.S.C. § 2255. See 28 U.S.C. §

2253(c)(1)(B). Because we conclude that Mr. Fields has failed to make “a

substantial showing of the denial of a constitutional right,” we deny his request

for a COA, and we dismiss the appeal. 28 U.S.C. § 2253(c)(2).




      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                  I. Background

      Mr. Fields pleaded guilty to one count of possession with intent to

distribute one kilogram of a mixture containing detectable amounts of

phencyclidine. The district court sentenced him to 188 months’ imprisonment.

Judgment was entered on June 30, 2003. Mr. Fields did not file a direct appeal.

      Mr. Fields commenced this habeas corpus action in the district court on

April 18, 2005. In his petition, Mr. Fields argued that he is entitled to

resentencing under United States v. Booker, 543 U.S. 220 (2005), and that counsel

was ineffective in failing to object on Sixth Amendment grounds to the

sentencing court’s finding of drug quantity. The district court denied the motion,

finding that Booker does not apply retroactively to cases on collateral review and

that Mr. Fields could not show that he was prejudiced by his attorney’s conduct.

The court also denied Mr. Fields’s request for a COA.

                               II. Claims on Appeal

      The denial of a motion for relief under 28 U.S.C. § 2255 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(B). A COA will issue “only if the applicant has made a substantial

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

to make such a showing, a petitioner must demonstrate that “reasonable jurists

could debate whether . . . the petition should have been resolved in a different


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manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (internal

quotation marks omitted).

      In his request for a COA before this Court, Mr. Fields makes two

arguments. First, he claims that the sentencing court erred, under Booker, by

improperly enhancing his sentence based on drug quantities found by a judge

under the preponderance of the evidence standard. In making this argument, Mr.

Fields asks us to retroactively apply Booker to invalidate his sentence. However,

this Court has held that “Booker does not apply retroactively to initial habeas

petitions.” United States v. Bellamy, 411 F.3d 1182, 1186 (10th Cir. 2005)

(denying a COA to a federal prisoner, sentenced in 2003, who raised a Booker

challenge). Thus, Mr. Fields cannot challenge his sentence under Booker, as his

conviction and sentence became final in June 2003, and he raised this claim for

the first time on collateral review.

      Second, he claims that his trial counsel was ineffective in failing to object

on Sixth Amendment grounds to the sentencing court’s finding of drug quantities.

“To establish ineffective assistance of counsel, a defendant must show both that

his counsel’s performance was constitutionally deficient, and that this deficient

performance prejudiced him.” United States v. Harfst, 168 F.3d 398, 402 (10th

Cir. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Mr.


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Fields was sentenced after the Supreme Court decided Apprendi v. New Jersey,

530 U.S. 466 (2000), but before the rulings in Blakely v. Washington, 542 U.S.

296 (2004), and Booker. To show that counsel’s performance was

constitutionally deficient, Mr. Fields must show that counsel’s failure to

extrapolate the holding in Booker from Apprendi was objectively unreasonable.

In our view, it was not. Although we had held that the rule announced in

Apprendi applied to criminal proceedings in federal court, see United States v.

Jones, 235 F.3d 1231, 1235 (10th Cir. 2000), we had also noted that Apprendi

“specifically avoided disrupting the use or adequacy of the Sentencing

Guidelines.” United States v. Jackson, 240 F.3d 1245, 1249 (10th Cir. 2001)

(internal quotation marks omitted). Given our precedent at the time and the five-

year gap between Apprendi and Booker, counsel’s failure to predict Booker’s

constitutional and remedial holdings is not objectively unreasonable. Cf. United

States v. Gonzalez-Huerta, 403 F.3d 727, 750 (10th Cir. 2005) (Briscoe, J.,

concurring and dissenting) (“[I]t is safe to say that no one . . . could have

predicted the absolute sea-change in federal sentencing that would ultimately be

wrought by the Supreme Court in its Booker remedial holding.”).

      Accordingly, we DENY Cornelius Fields’s request for a COA and

DISMISS this appeal.

                                                Entered for the Court,


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      Michael W. McConnell
      Circuit Judge




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