F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                        October 17, 2005
                      UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                          Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,                           No. 04-2341
 v.                                            (D.C. Nos. CIV-04-01247 BB/RLP
                                                      and CR-01-823 BB)
 ARTHUR HARRIS,                                            (D. N.M.)

          Defendant - Appellant.


           ORDER DENYING A CERTIFICATE OF APPEALABILITY


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      Arthur Harris, a federal prisoner proceeding pro se, requests a certificate of

appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2255 petition. For

substantially the same reasons set forth by the district court, we DENY Harris’s

request for a COA and DISMISS.

      Harris is currently serving a 120-month sentence following his plea of

guilty for being a felon in possession of a firearm. He collaterally attacked his

sentence in the court below by raising a challenge under Blakely v. Washington,

(2004). 1 Finding that Blakely was not retroactively applicable to


      1
          Harris’ application for a COA, filed May 25, 2005, does not cite to United
                                                                       (continued...)
initial habeas petitions, the court denied Harris’ § 2255 petition and also denied

Harris’s subsequent application for a COA. Harris now seeks a COA from this

court arguing that his sentence is invalid under Blakely/Booker. 2

      This circuit has held that Booker does not apply retroactively on collateral

review. United States v. Bellamy, 

, 1188 (10th Cir. 2005).

Additionally, Booker does not require the submission of a prior conviction to the

jury. We have held that “the ‘fact’ of prior convictions . . . need not be charged

in an indictment and proven to a jury,” because “[i]n previous criminal

proceedings, a defendant received sufficient procedural protections to alleviate

any Sixth Amendment concerns about using convictions stemming from those




      1
       (...continued)
States v. Booker, 

(2005). “We must apply the holdings in Blakely
and Booker to all cases in which a defendant properly raised an issue under either
case.” U.S. v. Clifton, 

, 1175 n.1 (10th Cir. 2005).
      2
        Harris’ petition was filed after April 24, 1996, the effective date of the
Anti-terrorism and Effective Death Penalty Act (“AEDPA”); as a result,
AEDPA’s provisions apply to this case. See Rogers v. Gibson, 

,
1282 n.1 (10th Cir. 1999). AEDPA conditions a petitioner’s right to appeal a
denial of habeas relief under § 2255 upon a grant of a COA. 28 U.S.C. §
2253(c)(1)(B). A COA may be issued “only if the applicant has made a
substantial showing of the denial of a constitutional right.” § 2253(c)(2). This
requires Harris to 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, 

, 484 (2000) (quotations
omitted). Because the district court denied Harris a COA, he may not appeal the
district court’s decision absent a grant of a COA by this court.

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proceedings for sentencing.” U.S. v. Moore, 

, 1223 (10th Cir.

2005).

         Because we determine, for substantially the same reasons as the district

court, that Harris may not raise a Booker challenge on collateral attack, and that

Harris fails to state a Booker challenge in any event, his application for a COA is

DENIED and the appeal is DISMISSED.


                                                ENTERED FOR THE COURT


                                                Carlos F. Lucero
                                                Circuit Judge




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