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

### July 7, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JAMES MONROE MORRIS, Defendant - Appellant. No. 05-3053 (D.C. Nos. 04-CV-3278-WEB and 03-CR-10058-02-WEB) (D. Kan.)

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.
Petitioner-Appellant James Monroe Morris, a federal inmate appearing pro se, seeks a certificate of appealability (“COA”) al lowing him to appeal the district court’s denial of his motion to vacate, set aside o r correct his sentence under 28 U.S.C. § 2255. Because we determine that Mr. Morri s has not made a “substantial showing of the denial of a constitutio nal right,” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel , 529 U.S. 473, 483-84 (2000), we deny his request for a COA and dismiss the appeal. Mr. Morris pleaded guilty on July 21, 2003 to one c ount of bank robbery in violation of 18 U.S.C. § 2113(a) and (d) and was se ntenced to 92 months- 2 -

imprisonment on October 24, 2003. The plea agreeme nt contained a waiver of the right to appeal or collaterally attack his sentence unless the district court departed upward from the applicable sentencing guidelines ra nge. No direct appeal was taken. Mr. Morris filed his § 2255 motion on Augus t 30, 2004 claiming that his sentence was unconstitutionally enhanced under Blak ely v. Washington , __ U.S. __, 124 S. Ct. 2531 (2004), and that his counsel’s failure to appeal the enhancement on the basis of Blakelyconstituted ineffective assistance of counsel. On January 5, 2005, the district court denied Mr. M orris relief on two alternative grounds. First, the court held that Mr . Morris’s waived his right to appeal or collaterally attack his sentence when he accepted the plea, and second, the court held that even if the waiver was unenforc eable, Blakelydoes not apply retroactively to cases on collateral review. Eightdays later, just after the Supreme Court issued its opinion in United States v . Booker , __ U.S. __, 125 S. Ct. 738 (2005), Mr. Morris filed a motion for recon sideration, which the district court treated as a motion to alter or amend the jud gment under Fed. R. Civ. P. 59(e), and denied. Where the district court denies a habeas petition o n procedural grounds, a COA should issue when the petitioner “shows, at lea st, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason wou ld find it debatable whether the- 3 -

district court was correct in its procedural ruling .” Slack , 529 U.S. at 484. Where the district court denies the petition on the merits, a COA should issue when the petitioner “demonstrate[s] that reasonable jurists would find the district court’s assessment of the constitutional claims deb atable or wrong.” Id. On appeal, Mr. Morris raises the same arguments that h e raised below, and we conclude that the district court’s ruling is not fa irly debatable or wrong. Regarding the procedural ruling, the district court ’s conclusion that Mr. Morris’s waiver is enforceable under United States v. Hahn , 359 F.3d 1315, 1328- 29 (10th Cir. 2004) (en banc), is not fairly debata ble, and Mr. Morris has not argued otherwise. This result is further supportedby our recent decision in United States v. Green , 405 F.3d 1180, 1182 (10th Cir. 2005), which recog nized that waivers of appellate rights entered into befor e the Supreme Court issued its opinion in Blakelycan preclude later claims based on Booker

. Likewise, the district court’s merits decision is n ot debatable or wrong as we have held that Blakely , even in light of the Court’s holding in Booker , does not apply retroactively to cases on collateral revi ew. United States v. Price , 400 F.3d 844, 845 (10th Cir. 2005). As for the argumen t that counsel should have raised the enhancement issue in a direct appeal, as our recent opinion in United States v. Glover , __ F.3d __, No. 04-5150, 2005 WL 1541083 (10th Ci r. July 1, 2005), makes clear, enhancements do not have to be included in the indictment to- 4 -

satisfy the Sixth Amendment. Therefore, counsel wa s not ineffective for failing to appeal on this ground. Entered for the Court

Paul J. Kelly, Jr. Circuit Judge