F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                        March 21, 2006
                                TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,
              Plaintiff-Appellee,                       No. 05-4223
 v.                                          (D.C. Nos. 2:05-CV-202-DAK and
                                                    2:04-CR-194-DAK)
 DAVID L. LACH,                                           (D. Utah)
              Defendant-Appellant.


                                     ORDER


Before KELLY, McKAY, and LUCERO, Circuit Judges.



      Petitioner, a federal prisoner appearing pro se, seeks habeas relief pursuant

to 28 U.S.C. § 2255. Petitioner pleaded guilty to mail fraud and was sentenced to

thirty months in prison and thirty-six months of supervised release. In March of

2005, Petitioner filed a § 2255 motion to vacate his sentence, challenging his

sentence under Blakely v. Washington, 

(2004). Petitioner also

argued that his counsel was ineffective because he failed to raise the Blakely issue

even though Blakely was decided before sentencing.

      The district court denied Petitioner’s § 2255 motion and also his Federal

Rule of Civil Procedure 60(b) motion for relief from judgment. Order (D. Utah

Aug. 5, 2005); Memorandum Decision and Order (D. Utah Apr. 28, 2005). The
district court analyzed Petitioner’s Blakely challenge under United States v.

Booker, 

(2005). Memorandum Decision and Order, 3. The district

court denied Petitioner’s challenge because Booker does not apply retroactively to

cases on collateral review. Id.; see also Bey v. United States, 

,

1269 (10th Cir. 2005).

      The issues Petitioner raises in this appeal are identical to those he brought

before the district court. To grant a certificate of appealability, Petitioner must

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

2253(c)(2) (1994). To meet this burden, Petitioner 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) (quotation omitted).

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

disposition, and the record on appeal. Nothing in the facts, the record on appeal,

or Petitioner’s filing raises an issue which meets our standard for the grant of a

certificate of appealability. For substantially the same reasons set forth by the

district court in its orders of April 28, 2005, and August 5, 2005, we cannot say

“that reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner.” 

DENY Petitioner’s request for a certificate of appealability and

DISMISS the appeal.


                                            Entered for the Court



                                            Monroe G. McKay
                                            Circuit Judge




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