* This order is not binding precedent, except under t he doctrines of law of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. 05-4035
v. (D.C. No. 2:04-CV-894-PGC) KAI HAMPTON, (D. Utah)

Defendant-Appellant.

ORDER *
Before EBEL , McKAY, and HENRY , Circuit Judges.

This is a pro se 28 U.S.C. § 2255 appeal. Appellan t pled guilty to possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Subsequently, Appellant filed a motion to vacate, set aside, or correct his federal sentence with the district c ourt. In his motion, Appellant alleged that his sentence was illegal based on the Supreme Court’s recent decision in Blakely v. Washington , 542 U.S. 296 (2004). The district court denied Appellant’s motion, holding that Blakeycannot be retroactively applied to § 2255 motions. The district court did not act on the iss ue of certificate of appealability.-2-

Under these circumstances, we deem the certificate of appealability to have been denied at the district court level. Appellant then filed a letter with this court which has been docketed as an application for a cer tificate of appealability. The issues he raises on appeal are not identical to tho se he raised to the district court. Appellant continues to claim that his sentence was illegal under Blakely , but on appeal he also alleges that his counsel was ineffec tive for failing to make the appropriate Blakely -type objections at either the sentencing hearing o r on direct appeal. In order for this court to grant a certificate of a ppealability, Appellant must make a “substantial showing of the denial of a cons titutional right.” 28 U.S.C. § 2253(c)(2). To do so, Appellant 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). While the district court’s holding in this case cou ld be supported by our decision in United States v. Price , 400 F.3d 844, 845 (10th Cir. 2005), where we held that Blakelydoes not apply retroactively to initial § 2255 mot ions, Price is not applicable here because Appellant was not sente nced until after Blakelywas decided. Appellant’s Blakelyargument therefore does not need to be applied-3-

retroactively. Instead, the proper issue to be res olved in this case is whether counsel’s failure to object on Blakelygrounds at sentencing and on direct appeal amounted to ineffective assistance. Strickland v. Washington , 466 U.S. 668 (1984). Appellant’s claim that his sentence was enhanced be cause of the use of his prior convictions is a misunderstanding of the law; the Supreme Court’s decision in Almendarez-Torres v. United States , 523 U.S. 224 (1998), makes it clear that prior convictions do not apply to Blakely . Therefore, Appellant’s counsel’s failure to object under Blakelywas not error. We have carefully reviewed Appellant’s brief, the d istrict court’s disposition, and the record on appeal. Because App ellant has failed to demonstrate that he is prejudiced by his counsel’s failure to object on Blakely grounds, no reasonable jurist could conclude that A ppellant’s counsel was ineffective under Strickland
. Accordingly, Appellant has failed to show a denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2), and we must DENY his request for a certificate of appealability and DISMISS the appeal. Entered for the Court Monroe G. McKay Circuit Judge