United States v. Greco ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 13, 2005
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 05-4163
v. (District of Utah)
(D.C. No. 2:05-CV-141-DAK)
DONALD VINCENT GRECO,
Defendant-Appellant.
ORDER
Before BRISCOE, LUCERO and MURPHY, Circuit Judges.
Petitioner, Donald Vincent Greco, seeks a certificate of appealability
(“COA”) so he can appeal the district court’s denial of the motion to vacate, set
aside, or correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C.
§ 2253(c)(1)(B) (providing that a movant may not appeal the denial of a § 2255
motion unless the movant first obtains a COA). Greco pleaded guilty to
possession of cocaine with intent to distribute and was sentenced to eighty-four
months’ imprisonment and three years’ supervised release. He was sentenced on
March 9, 2004 and filed the instant § 2255 motion on February 18, 2005. Greco’s
§ 2255 motion contained one argument: that his sentence is unconstitutional
because it was imposed in violation of United States v. Booker, 125 S. Ct. 738(2005). 1 The district court dismissed the § 2255 motion, concluding that Greco’s
Booker claim could not be raised for the first time in his § 2255 motion because
Booker does not apply retroactively to initial habeas petitions. United States v.
Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005); United States v. Price, 400 F.3d
844, 849 (10th Cir. 2005).
To be entitled to a COA, Greco must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite
showing, he must demonstrate “that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 322 U.S. 322, 336 (2003) (quotations
omitted). In evaluating whether Greco has satisfied his burden, this court
undertakes “a preliminary, though not definitive, consideration of the [legal]
framework” applicable to each of his claims. Id. at 338. Although Greco need
not demonstrate his appeal will succeed to be entitled to a COA, he must “prove
something more than the absence of frivolity or the existence of mere good faith.”
Id.1
Although Greco relied on Blakely v. Washington, 542 U.S. 296 (2004), the
Supreme Court applied the reasoning of Blakely to the federal sentencing
guidelines in Booker. 125 S. Ct. 738, 756 (2005).
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Having undertaken a review of Greco’s application for a COA and
appellate filings, the district court’s order, and the entire record on appeal
pursuant to the framework set out by the Supreme Court in Miller-El, this court
concludes that Greco is not entitled to a COA. The district court’s resolution of
Greco’s § 2255 motion is not reasonably subject to debate and the issue he seeks
to raise on appeal is not adequate to deserve further proceedings. Accordingly,
this court denies Greco’s request for a COA and dismisses this appeal. Greco’s
motion to proceed in forma pauperis on appeal is granted.
Entered for the Court
CLERK, COURT OF APPEALS
By
Deputy Clerk
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