United States v. Gonzalez-Bartolo ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 31, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-4267
(D.C. Nos. 1:04-CV-131-DB and
ROBERTO GONZALEZ-BARTOLO, 1:04-CR-19-DB)
(D. Utah)
Defendant-Appellant.
ORDER DENYING A CERTIFICATE OF APPEALABILITY
Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.
Petitioner, a federal prisoner proceeding pro se, requests a certificate of
appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2255 petition.
After considering the relevant portions of the record and the district court’s order,
we DENY Gonzalez-Bartolo’s request for a COA and DISMISS.
In 2004, Roberto Gonzalez-Bartolo was indicted for illegal reentry of a
previously deported alien under 8 U.S.C. § 1326. On the same day, the United
States filed a Notice of Sentencing Enhancement because Gonzalez-Bartolo had
previously been convicted of the felony of possession of cocaine with intent to
distribute. Gonzalez-Bartolo pled guilty to the charge after acknowledging that
his potential sentence could be up to twenty years in prison, a $250,000 fine, or
both. Because of his prior felony conviction, Gonzalez-Bartolo’s guideline range
based on a criminal history category of III was 46 to 57 months. On June 4, 2004,
the district court sentenced Gonzalez-Bartolo to 41 months of incarceration after
granting his motion for a downward departure based on overrepresentation of
criminal history.
In September 2004, Gonzalez-Bartolo filed the instant petition in federal
district court pursuant to 28 U.S.C. § 2255, 1 in which he alleged ineffective
assistance of counsel arising from his defense counsel’s failure to contest the
district court’s enhancement of his sentence because of his prior felony
conviction, 2 and in which he claimed that Blakely v. Washington, 124 S.Ct. 25311
Gonzalez-Bartolo’s § 2255 petition was filed after April 24, 1996, the
effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”);
therefore, AEDPA’s provisions apply to this case. See Rogers v. Gibson, 173
F.3d 1278, 1282 n.1 (10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320(1997)). AEDPA provides that a petitioner may not appeal a final order in a
§ 2255 petition unless a COA is granted. 28 U.S.C. § 2253(c)(1)(B). In order to
grant a COA, we must conclude that Gonzalez-Bartolo “has made a substantial
showing of the denial of a constitutional right.” § 2253(c)(2). In order to make
such a showing Gonzalez-Bartolo 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.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quotations omitted). Because the district court is deemed to have
denied Gonzalez-Bartolo a COA under our General Order of October 1, 1996, he
may not appeal the district court’s decision absent a grant of COA by this court.
2
Gonzalez-Bartolo’s petition also included a vague allegation that his defense
counsel showed a lack of interest or otherwise did not competently represent him.
Because this allegation lacked any specifics, it is not sufficient to establish the
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(2004), required his resentencing. On appeal, Gonzalez-Bartolo relies on Booker
v. United States, 125 S.Ct. 738 (2005), as further support for his second claim
that he is entitled to resentencing.
Under Strickland, Gonzalez-Bartolo must show that his counsel’s
representation falls below an objective standard of reasonableness. In order to
prevail, Gonzalez-Bartolo must establish both that his attorney’s representation
was deficient, and that he was prejudiced by that deficiency. United States v.
Kennedy, 225 F.3d 1187, 1197 (10th Cir. 2000) (citing Strickland, 466 U.S. at
687). Because we have held that Blakely and Booker do not apply to the fact of a
prior conviction, Gonzalez-Bartolo cannot establish either of the required prongs
under Strickland. See United States v. Moore, 401 F.3d 1220, 1224 (10th Cir.
2005). Additionally, as to Gonzalez-Bartolo’s second claim, we have held that in
light of Booker, Blakely did not announce a watershed rule of criminal procedure
such that it would apply retroactively to initial § 2255 motions such as Gonzalez-
Bartolo’s. United States v. Price, 400 F.3d 844, 845, 849 (10th Cir. 2005).
Accordingly, Gonzalez-Bartolo’s application for a COA is DENIED and
2
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showings required under Strickland v. Washington , 466 U.S. 668, 690 (1984),
particularly given that the record shows that counsel moved for and obtained a
downward departure for his client based on overrepresentation of criminal history.
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the appeal is DISMISSED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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