                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                           July 26, 2006
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                            __________________________                     Clerk of Court

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

          Plaintiff - Appellee,

 v.                                                       No. 05-4265
                                                            (D. Utah)
 M A U RY JA Y A N DER SO N ,                    (D. Ct. No. 2:05-CV-557-DAK)
                                                 (D. Ct. No. 2:05-CR-666-DAK)
          Defendant - Appellant.
                         ____________________________

                  OR D ER D EN YING REQUEST TO PROCEED
                             IN FORM A PAUPERIS,
                 DENYING CERTIFICATE O F APPEALABILITY
                       A ND DISM ISSIN G A PPLIC ATIO N


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      M aury Jay Anderson, a federal prisoner proceeding pro se, 1 filed a 28

U.S.C. § 2255 motion to vacate, set aside or correct his sentence. The district

court dismissed the motion. Anderson then filed a request for a certificate of

      1
        We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
appealability (COA) in this Court. See 28 U.S.C. § 2253(c)(1)(B); Fed. R. App.

P. 24(a)(5). He also requests leave to proceed on appeal in form a pauperis (ifp).

Fed. R. App. P. 24(a)(5).

                                     Background

      On June 28, 2004, pursuant to a plea agreement, Anderson pled guilty to

one count in a five count Indictment charging him with intentionally

manufacturing or attempting to manufacture methamphetamine in violation of 21

U.S.C. § 841(a)(1). On January 26, 2005, the district court sentenced Anderson

to seventy-eight months imprisonment. He did not file a direct appeal. Instead,

he attempted this end-run by filing a motion under 28 U.S.C. § 2255 claiming the

principles in United States v. Booker, 543 U.S. 220 (2005), apply retroactively to

invalidate his sentence. The government responded to his motion without waiting

for an order to do so. Anderson then filed a M otion to Vacate and requested the

district judge disqualify himself because the government’s sua sponte response

tainted the court.

      The district court dismissed Anderson’s motions, concluding there was no

impropriety in the government’s filing a response without an Order and

Anderson’s sentencing claims were without merit. Anderson then filed a request

for a C OA w ith this C ourt. The district court did not rule on a request for a COA ,

presumably due to Anderson’s failure to present one. Nevertheless, we consider

the request denied by the district court if no COA issues within thirty days of

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filing the notice of appeal. See Fed. R. App. P. 22.1(C).

                               Certificate of Appealability

      A COA is a jurisdictional pre-requisite to our review. M iller-El v.

Cockrell, 537 U.S. 322, 336 (2003). W e will issue a CO A only if Anderson makes

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

2253(c)(2). To make this showing, he must establish that “reasonable jurists

could debate whether . . . the petition should have been resolved [by the district

court] in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000)

(internal quotations omitted). W e review the district court's factual findings for

clear error and its legal conclusions de novo. English v. Cody, 241 F.3d 1279,

1282 (10th Cir. 2001).

      W e note that Anderson appears to have argued ineffective assistance of

counsel in the district court but does not raise that issue on appeal. Instead, he

raises only allegations that his Fifth and Fourteenth A mendment rights were

violated. 2 These claims should have been raised on direct appeal. “Generally, a

movant is barred from raising an alleged error affecting his conviction or sentence

for the first time on collateral review unless he can show both cause for the

default and actual prejudice.” United States v. Wiseman, 297 F.3d 975, 979 (10th



      2
          Anderson was sentenced ten days after the Supreme Court issued its opinion in
Booker.

                                            -3-
Cir. 2002); see United States v. Frady, 456 U.S. 152, 167-68 (1982).

Notwithstanding the obvious availability of the procedural bar defense in this

case, the government did not file an appellate brief raising this issue. Although

we may raise and enforce the procedural bar sua sponte, our “consideration of the

procedural bar would not be an efficient use of judicial resources in this case.”

Wiseman, 297 F.3d at 980. To give Anderson notice and a reasonable opportunity

to respond to the defense would require supplemental briefing, while the merits of

his arguments have been fully addressed by the district court. Therefore,

considering the merits of his arguments, we conclude he has failed to make a

sufficient showing that he is entitled to a COA on any of his claims. The district

court correctly determined the government’s response to Anderson’s motion was

proper and Booker did not require more than a preponderance of the evidence

standard at sentencing. United States v. M agallanez, 408 F.3d 672, 684 (10th

Cir.) (“Both before and under the [Federal Sentencing] Guidelines, facts relevant

to sentencing have generally been found by a preponderance of the evidence” and

“[n]othing in Booker changes this analysis.”), cert. denied, 126 S.Ct. 468 (2005).

M oreover, Booker does not apply retroactively to cases on collateral review.

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

conviction became final before either decision was issued, Anderson cannot

challenge his sentence under Booker. Therefore, the district court's order of

dismissal is not reasonably debatable. Slack, 529 U.S. at 484. Accordingly, w e

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DENY Anderson’s request for a COA.

                                   Request for IFP

      In addition, we reject Anderson’s request to proceed ifp on appeal. “W e

have previously concluded that 28 U.S.C. § 2254 habeas corpus and 28 U.S.C. §

2255 proceedings, and appeals of those proceedings, are not ‘civil actions’ for

purposes of 28 U.S.C. §§ 1915(a)(2) and (b).” M cIntosh v. United States Parole

Comm’n., 115 F.3d 809, 811 (10th Cir. 1997). However, Anderson “remains

obligated to comply with, and is subject to, all of the other provisions of 28

U.S.C. § 1915.” Id. at 812. This includes a requirement that he present a

reasoned, non-frivolous argument on appeal. See 28 U.S.C. § 1915(e)(2).

Because Anderson has failed this requirement, his pending request to proceed ifp

is DENIED. Anderson is ordered to immediately pay the full filing fee. Kinnell

v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001) (dismissal of an appeal does not

relieve appellant of the obligation to pay the appellate filing fee in full).



                                         Entered by the C ourt:

                                         Terrence L. O ’Brien
                                         United States Circuit Judge




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