                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                     January 11, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court

 UNITED STATES OF AM ERICA,

              Plaintiff-Appellee,

 v.                                                     No. 06-4117
                                                 (D.C. No. 2:04-CV -730-TS)
 CAYETANO M ORENO-V ALLES,                               (D. Utah)

              Defendant-Appellant.



                                     OR DER *


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      This is a timely pro se § 2255 appeal. The trial court denied a certificate of

appealability, and we consider the appeal a renewal of the request for a certificate

of appeal before this court. Appellant attacks his conviction for illegal reentry

after deportation, which was affirmed in a prior appeal, as well as his sentence on

two grounds. First, Appellant contends that his counsel was ineffective for

allowing a faulty transcript of his deportation hearing to be entered in the record

at trial. Second, Appellant argues that the enhancement of his sentence was




      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th
Cir. R. 32.1 (eff. Jan. 1, 2007).
entered in violation of United States v. Booker, 543 U.S. 220 (2005), and Blakely

v. Washington, 542 U.S. 296 (2004).

      The trial court ruled that the failure to raise these issues on direct appeal

constituted waivers. In doing so, the court considered the exception based on

ineffective assistance of counsel. W e see no reason to duplicate here the trial

court’s extensive and correct analysis of that issue in holding that Appellant

failed to demonstrate that his “standby” counsel was ineffective. W e similarly

affirm the trial court’s holding that there was no fundamental miscarriage of

justice, for substantially the reasons set forth in the trial court’s memorandum

opinion and order.

      W ith respect to Appellant’s challenge to the sentence enhancement, the trial

court appropriately relied on our decision in United States v. Price, 400 F.3d 844,

849 (10th Cir. 2005), in concluding that the Blakely and Booker issues do not

apply retroactively to Appellant’s collateral attack on a judgment that was final

when Booker was issued.

      In order for this court to grant a certificate of appealability, Appellant must

make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). Nothing in the appeal merits the grant of a certificate of

appealability. Accordingly, we DENY the certificate of appealability, and

AFFIRM the dismissal of Appellant’s § 2255 motion, but GR ANT Appellant’s




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petition to proceed in form a pauperis.

                                                Entered for the Court



                                                M onroe G. M cKay
                                                Circuit Judge




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