F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         December 2, 2005
                                TENTH CIRCUIT
                                                                           Clerk of Court

 UNITED STATES OF AMERICA,
               Plaintiff-Appellee,                        No. 05-4035
          v.                                     (D.C. No. 2:04-CV-894-PGC)
 KAI HAMPTON,                                              (D. Utah)
               Defendant-Appellant.


                                      ORDER *


Before EBEL, McKAY, and HENRY, Circuit Judges.




      This is a pro se 28 U.S.C. § 2255 appeal. Appellant pled guilty to

possession of a controlled substance with intent to distribute, in violation of 21

U.S.C. § 841(a)(1). Subsequently, Appellant filed a motion to vacate, set aside,

or correct his federal sentence with the district court. In his motion, Appellant

alleged that his sentence was illegal based on the Supreme Court’s recent decision

in Blakely v. Washington, 

(2004). The district court denied

Appellant’s motion, holding that Blakey cannot be retroactively applied to § 2255

motions. The district court did not act on the issue of certificate of appealability.


      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
Under these circumstances, we deem the certificate of appealability to have been

denied at the district court level. Appellant then filed a letter with this court

which has been docketed as an application for a certificate of appealability. The

issues he raises on appeal are not identical to those he raised to the district court.

Appellant continues to claim that his sentence was illegal under Blakely, but on

appeal he also alleges that his counsel was ineffective for failing to make the

appropriate Blakely-type objections at either the sentencing hearing or on direct

appeal.

      In order for this court to grant a certificate of appealability, Appellant must

make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To do so, Appellant 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).

      While the district court’s holding in this case could be supported by our

decision in United States v. Price, 

, 845 (10th Cir. 2005), where we

held that Blakely does not apply retroactively to initial § 2255 motions, Price is

not applicable here because Appellant was not sentenced until after Blakely was

decided. Appellant’s Blakely argument therefore does not need to be applied


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retroactively. Instead, the proper issue to be resolved in this case is whether

counsel’s failure to object on Blakely grounds at sentencing and on direct appeal

amounted to ineffective assistance. Strickland v. Washington, 

(1984).

      Appellant’s claim that his sentence was enhanced because of the use of his

prior convictions is a misunderstanding of the law; the Supreme Court’s decision

in Almendarez-Torres v. United States, 

(1998), makes it clear that

prior convictions do not apply to Blakely. Therefore, Appellant’s counsel’s

failure to object under Blakely was not error.

      We have carefully reviewed Appellant’s brief, the district court’s

disposition, and the record on appeal. Because Appellant has failed to

demonstrate that he is prejudiced by his counsel’s failure to object on Blakely

grounds, no reasonable jurist could conclude that Appellant’s counsel was

ineffective under Strickland.

      Accordingly, Appellant has failed to show a denial of a constitutional right

as required by 28 U.S.C. § 2253(c)(2), and we must DENY his request for a

certificate of appealability and DISMISS the appeal.

                                                 Entered for the Court


                                                 Monroe G. McKay
                                                 Circuit Judge


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