* This order is not binding precedent, except under t he doctrines of law of

the case, res judicata, and collateral estoppel. 

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

### December 2, 2005
Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 05-2162
v. (D.C. No. CIV-05-226 LH/RLP)FRANCISCO JAVIER RUIZGODINEZ, (D. New Mexico)

Defendant - Appellant.

ORDER *
Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.
Francisco Javier Ruiz-Godinez, a federal inmate app earing pro se , seeks to appeal the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. The matter is befo re this court on Ruiz-Godinez’s request for a certificate of appealability (“COA”). See 28 U.S.C. § 2253(c)(1)(B) (providing that no appeal may be taken from a “fina l order in a proceeding under section 2255” unless the movant first obtains a COA ). Because Ruiz-Godinez has not made a “substantial showing of the denial of a constitutional right,” this court denies his request for a COA and dismisses this appeal. 28 U.S.C. § 2253(c)(2)-2-

(providing that a COA “may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right”). On May 4, 2001, the district court entered judgmentagainst Ruiz-Godinez, sentencing him to a 108-month term of imprisonment for his conviction on drug conspiracy charges. Ruiz-Godinez filed the instant§ 2255 motion on February 28, 2005, asserting that the district court improperly enhanced his sentence through the utilization of judge-found fac ts in violation of Blakely v. Washington , 124 S. Ct. 2531 (2004) and United States v. Booker , 125 S. Ct. 738 (2005). Relying on this court’s decision in United States v. Price , 400 F.3d 844, 849 (10th Cir 2005), the district court concluded n either Blakelynor Booker applied retroactively on collateral appeal. Hence, the district court dismissed Ruiz-Godinez’s motion with prejudice and granted ju dgment in favor of the respondent United States. This court cannot grant Ruiz-Godinez a COA unless h e can demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different m anner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). I n evaluating whether Ruiz-Godinez has carried his burden, this court und ertakes “a preliminary, though not definitive, consideration of the [legal] framew ork” applicable to each of his-3-

claims. Miller-El v. Cockrell , 537 U.S. 322, 338 (2003). Ruiz-Godinez is not required to demonstrate that his appeal will succee d to be entitled to a COA. He must, however, “prove something more than the absen ce of frivolity or the existence of mere good faith.” Id. (quotations omitted). This court has reviewed Ruiz-Godinez’s application for a COA and appellate brief, the district court’s order, and th e entire record on appeal pursuant to the framework set out by the Supreme Court in Miller-Eland concludes that Ruiz-Godinez is not entitled to a COA. The distric t court’s resolution of RuizGodinez’s claim is not reasonably subject to debate and the claim is not adequate to deserve further proceedings. This court has spe cifically and explicitly held that neither Blakelynor Booker applies retroactively on collateral review. Price , 400 F.3d at 849; United States v. Bellamy , 411 F.3d 1182, 1188 (10th Cir. 2005). Accordingly, Ruiz-Godinez has not “made a substanti al showing of the denial of a constitutional right” and is not entitled to a COA. 28 U.S.C. § 2253(c)(2). This court DENIES Ruiz-Godinez’s request for a COA and DISMISSES this appeal. Entered for the Court
Michael R. Murphy United States Circuit Judge