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

### May 31, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ROBERTO GONZALEZ-BARTOLO, Defendant-Appellant. No. 04-4267 (D.C. Nos. 1:04-CV-131-DB and

1:04-CR-19-DB) (D. Utah)

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 2 8 U.S.C. § 2255 petition. After considering the relevant portions of the reco rd 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. O n the same day, the United States filed a Notice of Sentencing Enhancement bec ause Gonzalez-Bartolo had previously been convicted of the felony of possessi on of cocaine with intent to distribute. Gonzalez-Bartolo pled guilty to the ch arge after acknowledging that his potential sentence could be up to twenty years in prison, a $250,000 fine, or1 Gonzalez-Bartolo’s § 2255 petition was filed afterApril 24, 1996, the

effective date of the Antiterrorism and Effective D eath Penalty Act (“AEDPA”); therefore, AEDPA’s provisions apply to this case. See Rogers v. Gibson , 173 F.3d 1278, 1282 n.1 (10th Cir. 1999) (citing Lindh v. Murphy , 521 U.S. 320 (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) th e petition should have been resolved in a different manner or that the issues p resented were adequate to deserve encouragement to proceed further.” Slack v . McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). Because the distr ict court is deemed to have denied Gonzalez-Bartolo a COA under our General Ord er of October 1, 1996, he may not appeal the district court’s decision absenta 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- both. Because of his prior felony conviction, Gonz alez-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 insta nt 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 coun sel’s failure to contest the district court’s enhancement of his sentence becaus e of his prior felony conviction, 2 and in which he claimed that Blakely v. Washington , 124 S.Ct. 25312 (...continued)

showings required under Strickland v. Washington , 466 U.S. 668, 690 (1984), particularly given that the record shows that couns el moved for and obtained a downward departure for his client based on overrepr esentation of criminal history. -3- (2004), required his resentencing. On appeal, Gonz alez-Bartolo relies on Booker v. United States , 125 S.Ct. 738 (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 d eficiency. United States v. Kennedy , 225 F.3d 1187, 1197 (10th Cir. 2000) (citing Strickland , 466 U.S. at 687). Because we have held that Blakely and Bookerdo 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, 401 F.3d 1220, 1224 (10th Cir. 2005). Additionally, as to Gonzalez-Bartolo’s seco nd claim, we have held that in light of Booker , Blakelydid not announce a watershed rule of criminal proc edure such that it would apply retroactively to initial § 2255 motions such as GonzalezBartolo’s. United States v. Price , 400 F.3d 844, 845, 849 (10th Cir. 2005). Accordingly, Gonzalez-Bartolo’s application for a C OA is DENIED and-4-

the appeal is DISMISSED

. ENTERED FOR THE COURT
Carlos F. Lucero Circuit Judge