United States v. Borrego , 227 F. App'x 729 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 2, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-6326
v. (W . D. Oklahoma)
H EN RY LA WR EN CE B OR REGO, (D.C. Nos. 06-CV-57-T
JR., and 01-CR-91-T)
Defendant - Appellant.
OR DER DENY ING CERTIFICATE O F APPEALABILITY
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Henry Borrego pleaded guilty in the United States District Court for the
W estern District of Oklahoma to one count of conspiracy to possess with intent to
distribute five kilograms or more of cocaine. See 21 U.S.C § 846. He was
sentenced on April 29, 2002, to 151 months’ imprisonment. W e affirmed his
conviction on appeal. See United States v. Borrego, 66 F. App’x. 797, 798–800
(10th Cir. 2003). He sought a w rit of certiorari from the Supreme Court, but his
petition was denied on October 6, 2003. See Borrego v. United States, 540 U.S.
933 (2003). On January 12, 2006, M r. Borrego filed with the district court a
motion for habeas relief under 28 U.S.C. § 2255, contending that United States v.
Booker, 543 U.S. 220 (2006), required a reduction in his sentence. The court
denied the motion because (1) it was untimely under 28 U.S.C. § 2255 ¶ 6(1)
(motion must be filed within one year of conviction’s becoming final) and (2)
Booker does not apply retroactively to judgments that had become final before it
was handed down. It then denied his request for a certificate of appealability
(COA). See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of § 2255
motion).
On December 15, 2006, M r. Borrego filed with this court an application for
a certificate of appealability. His brief in support of the application contends that
(1) his motion was timely, as he filed it within one year of Booker, see 28 U.S.C.
§ 2255 ¶ 6(3) (one-year deadline runs from “the date on which the right asserted
was initially recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively applicable to cases on
collateral review”); and (2) Booker applies retroactively to his conviction because
it interpreted a federal statute. W e deny a COA and dismiss the appeal.
A COA will issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard
requires “a demonstration that . . . includes showing that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473,
-2-
484 (2000) (internal quotation marks omitted). In other words, an applicant must
show that the district court's resolution of the constitutional claim was either
“debatable or wrong.” Id.M r. Borrego’s conviction became final on the date the Supreme Court
denied certiorari. See Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987)
(conviction becomes final when “a judgment of conviction has been rendered, the
availability of appeal exhausted, and the time for a petition for certiorari elapsed
or a petition for certiorari finally denied.”). Because that date was pre-Booker, he
cannot obtain any relief based on that decision. See United States v. Bellamy, 411
F.3d 1182, 1186 (10th Cir. 2005) (“W e now join all other circuits that have
examined the question and conclude Booker does not apply retroactively to initial
habeas petitions.”). No reasonable jurist could dispute the district court’s ruling
on the retroactivity issue. Thus, regardless of whether his § 2255 motion was
timely, M r. Borrego is not entitled to relief.
W e D ENY a COA and DISM ISS the appeal. W e also D ENY M r. Borrego’s
motion to proceed in form a pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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