United States v. Geronimo

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 3, 2005
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 04-2263
v. (D.C. No. CIV-04-882 JC/ACT)
(New Mexico)
LUIS RAMIREZ GERONIMO,
Defendant-Appellant.
ORDER
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
Luis Ramirez Geronimo, proceeding pro se, seeks a certificate of
appealability (COA) to challenge the district court’s denial of his petition for a
writ of habeas corpus under 28 U.S.C. § 2255, as well as leave to proceed in
forma pauperis (ifp) on appeal. We exercise jurisdiction under 28 U.S.C. §
2253(c)(1), and liberally construe Mr. Geronimo’s pleadings in compliance with
Haines v. Kerner, 404 U.S. 519, 520 (1972). Proceeding as such, we deny Mr.
Geronimo’s application for a COA and his request to proceed ifp.
Mr. Geronimo pleaded guilty to various drug charges and was sentenced to
188 months imprisonment. On direct appeal, he challenged the district court’s
calculation of his sentence, which was based in part on the district court’s
determination that he was a career offender. In an unpublished decision, we
affirmed. See United States v. Geronimo, 72 Fed. Appx. 802 (10th Cir. 2003).
Mr. Geronimo subsequently filed a § 2255 petition in the district court, claiming
his sentence was invalid under Blakely v. Washington, 542 U.S. 296 (2004), and
also continuing to challenge the district court’s sentencing calculation. The
district court dismissed his petition and denied his request for a COA. Mr.
Geronimo now seeks relief before our court, citing United States v. Booker, 125
S. Ct. 738 (2005).
The issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). A COA can issue “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, 537 U.S. at 327. “The COA determination under
§ 2253(c) requires an overview of the claims in the habeas petition and a general
assessment of their merits.” Id. at 336. “This threshold inquiry does not require
full consideration of the factual or legal bases adduced in support of the claims.
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In fact, the statute forbids it.” Id. While Mr. Geronimo is not required to prove
the merits of his case to receive a COA, he must demonstrate “something more
than the absence of frivolity or the existence of mere good faith on his . . . part.”
Id. at 338 (internal quotations and citation omitted). With these principles in
mind, we have carefully reviewed Mr. Geronimo’s brief, the record of these
proceedings, and the district court’s order.
First, the district court correctly recognized that the Supreme Court’s
decision in Blakely is not properly applied to decisions on collateral review. See
United States v. Prince, 400 F.3d 844, 849 (10th Cir. 2005) (“Blakely does not
apply retroactively to convictions that were already final at the time the Court
decided Blakely, June 24, 2004.”). We have ruled the same regarding Booker.
See United States v. Bellamy, 411 F.3d 1182, 1186-87 (10th Cir. 2005) (holding
neither Booker nor Blakely can be applied retroactively). Second, the district
court properly noted Mr. Geronimo’s claim regarding the calculation of his
sentence had already been disposed of on direct appeal and could not be
considered in a § 2255 proceeding. See United States v. Warner, 23 F.3d 287,
291 (10th Cir. 1994).
Having reviewed the district court’s order in light of the standards laid out
in Miller-El, we conclude that reasonable jurists would not debate the district
court’s determination that the Supreme Court’s rulings in Blakely and Booker
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cannot be applied retroactively to Mr. Geronimo’s case, nor its conclusion that
Mr. Geronimo’s sentence recalculation claims may not be reviewed on collateral
review after being disposed of on direct appeal.
Accordingly, we DENY Mr. Geronimo’s request for a COA as well as his
request to proceed ifp. The appeal is DISMISSED.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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