United States v. Herrera

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 20, 2005
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 05-3186
v. District of Kansas
RENE HERRERA, JR., (D.C. Nos. 03-20024-01-JWL,
05-3045-JWL)
Defendant-Appellant.
ORDER *
Before HARTZ, SEYMOUR, and McCONNELL, Circuit Judges.
Rene Herrera, a federal prisoner proceeding pro se, seeks a certificate of
appealability (COA) that would allow him to appeal from the district court’s order
denying his habeas corpus petition under 28 U.S.C. § 2255. See 28 U.S.C. §
2253(c)(1)(B). Because we conclude that Mr. Herrera has failed to make “a
substantial showing of the denial of a constitutional right,” we deny his request
for a COA, and we dismiss the appeal. 28 U.S.C. § 2253(c)(2).
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
I. Background
Mr. Herrera was indicted for conspiracy to distribute methamphetamine and
distribution of methamphetamine. He pleaded guilty to the conspiracy charge on
August 18, 2003. In the plea agreement, Mr. Herrera waived his right to directly
appeal or collaterally challenge his sentence. On November 3, 2003, he was
sentenced to 168 months’ imprisonment. When sentencing Mr. Herrera, the
district court made factual findings about drug quantities under the preponderance
of the evidence standard.
On February 1, 2005, Mr. Herrera filed a motion to vacate, set aside or
correct his sentence pursuant to 28 U.S.C. § 2255, in which he asked the district
court to vacate his sentence under United States v. Booker, 543 U.S. 220 (2005).
The government, in response, filed a motion to enforce Mr. Herrera’s plea
agreement and waiver of rights. On April 7, 2005, the district court denied Mr.
Herrera’s motion, finding that he waived his right to collaterally challenge his
sentence and, alternatively, that Booker does not apply retroactively to claims on
collateral review. The district court denied Mr. Herrera’s request for a COA on
May 6, 2005.
II. Claims on Appeal
The denial of a motion for relief under 28 U.S.C. § 2255 may be appealed
only if the district court or this Court first issues a COA. 28 U.S.C. §
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2253(c)(1)(B). A COA will issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order
to make such a showing, a petitioner must demonstrate that “reasonable jurists
could debate whether . . . 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, 475 (2000) (internal
quotation marks omitted).
In this request for a COA, Mr. Herrera makes three arguments: (1) the
district court should have held an evidentiary hearing on his claim of ineffective
assistance of counsel, (2) his waiver of the right to appeal his sentence was not
knowing and voluntary, and (3) lengthening his term of imprisonment based on
facts about drug quantities determined by a judge, rather than by a jury, is
constitutional error remediable on collateral review. We turn first to Mr.
Herrera’s contention that the district court should have afforded him an
evidentiary hearing on his claim of ineffective assistance of counsel.
Mr. Herrera never presented a broad claim of ineffective assistance of
counsel to the district court. In his habeas corpus petition before the district
court, Mr. Herrera stated only that his “sentence is unconstitutional under the
Fifth and Sixth Amendments.” R. Doc. 35, p. 5. Later, in his response brief
before the district court, he claimed that his waiver of collateral relief was invalid
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because counsel was ineffective by inaccurately asserting that Mr. Herrera would
receive a ten-year sentence. As the district court noted, however, Mr. Herrera did
not “suggest that his counsel in any way assured him that his sentence would be
no more than 10 years or otherwise misinformed or improperly counseled him as
to the potential sentence he might receive. Rather, Mr. Herrera state[d] that he
simply ‘assumed’ he would be sentenced to the statutory minimum based on the
facts to which he pled guilty.” Moreover, during the colloquy with the district
court, Mr. Herrera stated that he was aware that the guideline range would be
determined after the presentence investigation, and could be affected by other
information, including information relevant to crimes to which he did not plead
guilty. This provides no basis for a claim of ineffective assistance of counsel.
As to Mr. Herrera’s remaining claims, we need not decide whether Mr.
Herrera knowingly and intelligently waived his right to collateral review because
his constitutional challenge to his sentence fails. Mr. Herrera claims that the
Supreme Court’s decisions in Blakely v. Washington, 542 U.S. 296 (2004), and
United States v. Booker, 543 U.S. 220 (2005), apply retroactively to invalidate his
sentence. However, this Court has held that “Booker does not apply retroactively
to initial habeas petitions.” United States v. Bellamy, 411 F.3d 1182, 1186 (10th
Cir. 2005) (denying a COA to a federal prisoner, sentenced in 2003, who raised a
Booker challenge). Thus, Mr. Herrera cannot challenge his sentence under
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Booker, as he was sentenced in November 2003 and raised this claim for the first
time on collateral review.
III. Conclusion
Accordingly, we DENY Rene Herrera’s request for a COA and DISMISS
this appeal.
Entered for the Court,
Michael W. McConnell
Circuit Judge
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