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, 

   1
     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, 

, 1282 n.1 (10th Cir. 1999) (citing Lindh v. Murphy, 

(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, 

,
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
                                                                         (continued...)

                                          -2-
(2004), required his resentencing. On appeal, Gonzalez-Bartolo relies on Booker

v. United States, 

(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, 

, 1197 (10th Cir. 2000) (citing 

). 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, 

, 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, 

, 845, 849 (10th Cir. 2005).

       Accordingly, Gonzalez-Bartolo’s application for a COA is DENIED and




   2
    (...continued)
showings required under Strickland v. Washington , 

, 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.

                                        -3-
the appeal is DISMISSED.

                                 ENTERED FOR THE COURT


                                 Carlos F. Lucero
                                 Circuit Judge




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