                                                                                 F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                              September 26, 2005
                                    TENTH CIRCUIT
                                                                                 Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,
 v.                                                            No. 05-2069
 RICHARD GARCIA,                                    (D.C. No. CV-04-1292 BB/ACT)
                                                      (D.C. No. CR-01-1134 BB)
        Defendant-Appellant.                                   (D.N.M.)




                                          ORDER


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


       Richard Garcia, a federal prisoner proceeding pro se, seeks a certificate of

appealability (COA) to appeal the district court’s denial of the habeas petition he filed

pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B) (providing that no appeal

may be taken from a final order disposing of a § 2255 petition unless the petitioner first

obtains a COA).

       Garcia pled guilty to a charge of distribution of cocaine base. The district court

sentenced him to a term of 60 months imprisonment and entered judgment on the

conviction on November 8, 2002. Garcia did not directly appeal his conviction or

sentence. On November 12, 2004, Garcia filed a motion to vacate, set aside, or correct

his sentence pursuant to 28 U.S.C. § 2255, arguing that his sentence was imposed in
violation of Blakely v. Washington, 542 U.S. 296 (2004). The district court denied his

motion because Blakely and United States v. Booker, 125 S.Ct. 738 (2005), which

extended the logic of Blakely to the Federal Sentencing Guidelines, do not apply

retroactively to cases on collateral review. Garcia filed a motion for reconsideration

which the district court also denied. Additionally, the district court denied his application

for a COA, but granted his petition to proceed in forma pauperis.

       This court can issue a COA 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 v.

Cockrell, 537 U.S. 322, 327 (2003). This determination “requires an overview of the

claims in the habeas petition and a general assessment of their merits.” Id. at 336. Garcia

is not required to prove the merits of his case, but he must nonetheless demonstrate

“something more than the absence of frivolity” or the mere existence of good faith on his

part. Id. at 338 (quotations omitted).

       Pursuant to the Miller-El framework, this court has reviewed Garcia’s application

and the record below and concludes that Garcia is not entitled to a COA. The district

court was correct; neither Blakely nor Booker are retroactive or apply to cases on

collateral review. Leonard v. United States, 383 F.3d 1146, 1148 (10th Cir. 2004);


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United States v. Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005). Accordingly, Garcia has

not “made a substantial showing of the denial of a constitutional right,” and this court

must DENY his application and DISMISS the case.

       The request for a COA is DENIED and the appeal is DISMISSED.

                                                 Entered for the Court


                                                 Mary Beck Briscoe
                                                 Circuit Judge




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