                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      July 18, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                      No. 06-3035
          v.                                          District of Kansas
 Y G N A CIO ZA BA LZA ,                         (D.C. No. 05-CV-3003-W EB)

               Defendant-Appellant.



                                      OR DER *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Ygnacio Zabalza, a federal prisoner proceeding pro se, seeks a certificate

of appealability (COA) that would allow him to appeal 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 M r. Zabalza has failed to make “a

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

for a COA and 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       This order is not binding precedent, except under the doctrines of law of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

      M r. Zabalza was stopped by a Kansas Highway Patrol sergeant who

smelled marijuana and searched the car, finding blocks of marijuana in the trunk.

W hile the officer was searching the trunk, M r. Zabalza set the car on fire. M r.

Zabalza was charged with two violations of federal law: (1) unlawful possession

of over 100 kilograms of marijuana with the intent to distribute, in violation of 21

U.S.C. § 841 and 18 U.S.C. § 2, and (2) unlawful destruction of a vehicle by fire

in violation of 18 U.S.C. § 844(i). M r. Zabalza’s retained counsel filed a motion

to suppress evidence. After the court denied his motion to suppress, M r. Zabalza

entered into a plea agreement with the government. The government agreed to

dismiss Count 2 if M r. Zabalza pleaded guilty to Count 1. M r. Zabalza pleaded

guilty on the condition that he would be able to appeal the court’s denial of the

motion to suppress evidence.

      At a sentencing hearing on November 4, 2002, M r. Zabalza was sentenced

to the statutory minimum sentence of ten years’ imprisonment on Count 1. He

filed a direct appeal challenging the denial of his motion to suppress. This Court

affirmed. See U nited States v. Zabalza, 346 F.3d 1255 (10th Cir. 2003).

      M r. Zabalza filed a petition for a writ of habeas corpus, pursuant to 28

U.S.C. § 2255, raising five issues: (1) he was denied effective assistance of

counsel because his attorney failed to ensure that his sentencing was based on the

proper weight of marijuana and not the weight of the packaging; (2) he was

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denied effective assistance of counsel because his attorney conspired with

government counsel to misplace the original tape recording of the traffic stop; (3)

the Supreme Court’s opinion in Blakely v. Washington, 542 U.S. 296 (2004),

should be applied retroactively to his sentencing; (4) he was denied effective

assistance of counsel because his attorney did not seek to reduce his sentence

under the guidelines; and (5) he was denied effective assistance of counsel

because his attorney failed to raise additional issues on appeal. The district court

denied the petition, finding that M r. Zabalza failed to prove his counsel was

defective and that Blakely does not apply retroactively.

       M r. Zabalza seeks a COA in this Court solely on the ground that his

counsel’s failure to raise the packaging weight issue constituted ineffective

assistance of counsel.

                              II. Discussion

      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 issue a COA. 28 U.S.C. §

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

substantial showing of the denial of a constitutional right.” Id. § 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 manner or that the issues presented were adequate to deserve




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encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473, 483-84

(2000) (internal quotation marks omitted).

      For M r. Zabalza to establish ineffective assistance of counsel, he must

show: (1) that his counsel’s performance was deficient, and (2) that counsel’s

performance prejudiced the defense to create an unfair trial. See Strickland v.

Washington, 466 U.S. 668, 687 (1984). Counsel is not constitutionally ineffective

for failing to raise a meritless issue. See Hawkins v. Hannigan, 185 F.3d 1146,

1152 (10th Cir. 1999). In reviewing the district court’s ineffective assistance of

counsel claims, we accept the district court’s factual finding unless clearly

erroneous and review the district court’s legal conclusions de novo. Brewer v.

Reynolds, 51 F.3d 1519, 1523 (10th Cir. 1995).

      M r. Zabalza argues that had the marijuana been weighed differently, using

the actual weight of the packaging materials, the weight of the marijuana would

be under 100 kilograms, and he would have received a lower sentencing based on

offense levels established by the Sentencing Guidelines. In arguing to the district

court, however, M r. Zabalza stated that the packaging materials as w eighed would

have accounted for as much as 11% of the gross weight of the bundles. The

district court correctly found that reducing the total gross weight of the marijuana

(115.3 kilograms) by 11% would still result in 102 kilograms of marijuana.

      On appeal, M r. Zabalza changes his argument. Now he urges that if there

was a 13.32% drop due to w rapping instead of the original 11% drop then there

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would only be 99.875 kilograms of marijuana. He suggests that a discrepancy of

this magnitude could be the result of the unknown liquid substance used to

extinguish the fire. W e do not accept new arguments on appeal. Lyons v.

Jefferson Bank & Trust, 994 F.2d 716, 720 (10th Cir. 1993). M oreover, this

argument is little more than hopeful speculation on M r. Zabalza’s part, with no

support in the record. Therefore, we affirm the district court.



                          III. Conclusion

      Accordingly, we D EN Y Ygnacio Zabalza’s request for a COA and

DISM ISS this appeal.

                                               Entered for the Court,

                                               M ichael W . M cConnell
                                               Circuit Judge




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