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

### October 28, 2005
Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 05-1273
v. D. Colorado RAUL ATAYDE,

Defendant - Appellant. (D.C. Nos. 05-S-566 and 99-CR-300-S)

ORDER
Before HARTZ , Circuit Judge, BARRETT , Senior Circuit Judge, and McCONNELL , Circuit Judge. Mr. Raul Atayde was convicted by a jury on numerous drug charges and sentenced to 365 months in prison. The conviction was affirmed on direct appeal, United States v. Hinojosa-Gonzalez , 68 Fed. Appx. 918 (10th Cir. 2003), and on February 23, 2004, the Supreme Court denied his pet ition for a writ of certiorari. Atayde v. United States , 540 U.S. 1205 (2004). On March 24, 2005, Mr. Atayde signed and mailed a m otion to vacate his sentence under 28 U.S.C. § 2255. The motion was fi led with the district court on March 28, 2005. Relying on Blakely v. United States , 524 U.S. 296 (2004), and United States v. Booker , 125 S. Ct. 738 (2005), it alleges (1) a due proce ss violation because the judge was unaware of his sent encing discretion and (2) a-2-

violation of his right to a jury trial. The distri ct court denied the motion as barred by the statute of limitations, and denied a requestfor a certificate of appealability (COA). Mr. Atayde now seeks a COA from this court. “A certificate of appealability may issue . . . onl y if the applicant has made a substantial showing of the denial of a constituti onal right.” 28 U.S.C. § 2253(c)(2). This means that the applicant must s how “that reasonable jurists could debate whether (or, for that matter, agree th at) the petition should have been resolved in a different manner or that the iss ues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other words, the applicant must show that the district court’s resolution of the co nstitutional claim was either “debatable or wrong.” Id . If the petition was denied on procedural grounds , the applicant faces a double hurdle. Not only must the applicant make a substantial showing of the denial of a constitutional right, bu t he must also show “that jurists of reason would find it debatable . . . whether the district court was correct in its procedural ruling.” Id . “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the cas e, a reasonable jurist could not conclude either that the district court erred in di smissing the petition or that the petition should be allowed to proceed further.” Id. Mr. Atayde has not met this burden.-3-

We review the district court’s factual findings forclear error and its legal conclusions de novo. English v. Cody , 241 F.3d 1279, 1282 (10th Cir. 2001). The district court correctly found that Mr. Atayde’ s motion was barred. His sentence became final on February 23, 2004, when th e Supreme Court denied his petition for a writ of certiorari. See United States v. Willis , 202 F.3d 1279, 1280- 81 (10th Cir. 2000). His motion for habeas relief was mailed on March 24, 2005. Under the “prison mailbox rule” this is the date onwhich the motion was filed for purposes of 28 U.S.C. § 2255. See Price v. Philpot , 420 F.3d 1158, 1163-64 (10th Cir. 2005). Mr. Atayde’s motion was therefor e filed more than one year after his date of conviction became final and is ba rred by the statute of limitations in 28 U.S.C. § 2255. Mr. Atayde argues that he had one year from Booker to file his claim. He would be correct if Bookerwere “retroactively applicable to cases on collate ral review.” 28 U.S.C. § 2255. But Booker is not retroactively applicable, and neither is Blakely
. See United States v. Bellamy , 411 F.3d 1182, 1186-88 (10th Cir. 2005). Mr. Atayde attempts to overcome this b y arguing that his claim is based on Hicks v. Oklahoma , 447 U.S. 343 (1980). In that case the Supreme Court held that a defendant was prejudiced by an in struction that required the jury to impose a 40-year prison sentence, thereby removi ng all discretion from the jury, in violation of Oklahoma state law. From thi s, Mr. Atayde argues that he-4-

was denied due process because the judge in his cas e was confined by unconstitutional guidelines when he should have hadmore discretion. But even though Mr. Atayde relies on Hicks , that case avails him nothing without Booker , which, as noted, we do not apply retroactively to c ases on collateral review. Finally, Mr. Atayde argues that this procedural baris overcome by the actual-innocence exception. See United States v. Cervini , 379 F.3d 987, 991 (10th Cir. 2004). But he does not even allege any new evidence disputing the facts found by the court at sentencing, and his bar e assertions are not enough. See Schlup v. Delo , 513 U.S. 298, 327 (1995) (“To establish [actual i nnocence], the petitioner must show that it is more likely than no t that no reasonable juror would have convicted him in the light of the new evidence .”). We DENY a COA and dismiss the appeal. ENTERED FOR THE COURT
Harris L Hartz Circuit Judge