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

### July 11, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. GUADALUPE GONZALEZ, Defendant-Appellant. No. 05-7027 (Nos. CIV-05-81-S and CR-99-00040-003-S) (E.D. Okla.)

ORDER DENYING A CERTIFICATE OF

APPEALABILITY

Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.
Guadalupe Gonzalez, a federal prisoner proceeding p ro se , requests a certificate of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2255 petition. For substantially the same reasons set f orth by the district court, we DENY Gonzalez’s request for a COA and DISMISS

. On May 20, 1999, Gonzalez pled guilty in federal co urt to a one-count indictment and, on September 1, 1999, was sentenced to 135 months’ incarceration. He did not directly appeal either h is conviction or sentence. On February 22, 2005, he filed an initial § 2255 motio n seeking to vacate his sentence on the ground that it was imposed in violation of United States v.1 Gonzalez’s petition was filed after April 24, 199 6, the effective date of

the Antiterrorism and Effective Death Penalty Act ( “AEDPA”); as a result, 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 conditions a petitioner’s right to appeal a d enial of habeas relief under § 2254 upon a grant of a COA. 28 U.S.C. § 2253(c)( 1)(A). A COA may be issued “only if the applicant has made a substantia l showing of the denial of a constitutional right.” § 2253(c)(2). This require s Gonzalez to show “that reasonable jurists could debate whether (or, for th at 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). B ecause the district court denied Gonzalez a COA, he may not appeal the district court’s decision absent a grant of COA by this court. 2 Booker , 125 S.Ct. 738 (2005). The district court dismissed the action, finding that Gonzalez filed his action outside the limitati ons period established by § 2255, and denied Gonzalez’s request for a COA. Gonzalez seeks a COA before this court, arguing that his habeas petition was timely filed and attempting to challenge his sentence under Booker

. 1 A petitioner may file a § 2255 motion within one ye ar of “the date on which the judgment of conviction becomes final.” § 2255. It is undisputed that Gonzalez filed his habeas petition well over a yearafter his judgment of conviction became final. He argues, however, that his petition is timely because it has been filed within one year of “the date on w hich the right asserted was initially recognized by the Supreme Court,” and that the “right has been newly recognized by the Supreme Court and made retroactiv ely applicable to cases on3

collateral review.” Id. The right claimed arises out of Booker . However, we have recently held that “Bookerdoes not apply retroactively on collateral review. ” Bellamy v. United States , 04-5145, 2005 WL 1406176, F.3d (10th Cir. June 16, 2005). Therefore, we agree with the distr ict court that Gonzalez has filed his petition outside the limitations period a nd DENY the application for COA and DISMISS

.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge