United States v. Greco

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 13, 2005
• Docket: 05-4163
• Status: Published

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS December 13, 2005 TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 05-4163 v. (District of Utah) (D.C. No. 2:05-CV-141-DAK) DONALD VINCENT GRECO,

Defendant-Appellant.

ORDER

Before BRISCOE, LUCERO and MURPHY, Circuit Judges.

Petitioner, Donald Vincent Greco, seeks a certificate of appealability

(“COA”) so he can appeal the district court’s denial of the motion to vacate, set

aside, or correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C.

§ 2253(c)(1)(B) (providing that a movant may not appeal the denial of a § 2255

motion unless the movant first obtains a COA). Greco pleaded guilty to

possession of cocaine with intent to distribute and was sentenced to eighty-four

months’ imprisonment and three years’ supervised release. He was sentenced on

March 9, 2004 and filed the instant § 2255 motion on February 18, 2005. Greco’s

§ 2255 motion contained one argument: that his sentence is unconstitutional because it was imposed in violation of United States v. Booker, 125 S. Ct. 738

(2005). 1 The district court dismissed the § 2255 motion, concluding that Greco’s

Booker claim could not be raised for the first time in his § 2255 motion because

Booker does not apply retroactively to initial habeas petitions. United States v.

Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005); United States v. Price, 400 F.3d

844, 849 (10th Cir. 2005).

To be entitled to a COA, Greco must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

showing, he must demonstrate “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.” Miller-El v. Cockrell, 322 U.S. 322, 336 (2003) (quotations

omitted). In evaluating whether Greco has satisfied his burden, this court

undertakes “a preliminary, though not definitive, consideration of the [legal]

framework” applicable to each of his claims. Id. at 338. Although Greco need

not demonstrate his appeal will succeed to be entitled to a COA, he must “prove

something more than the absence of frivolity or the existence of mere good faith.”

Id.

1 Although Greco relied on Blakely v. Washington, 542 U.S. 296 (2004), the Supreme Court applied the reasoning of Blakely to the federal sentencing guidelines in Booker. 125 S. Ct. 738, 756 (2005).

-2- Having undertaken a review of Greco’s application for a COA and

appellate filings, the district court’s order, and the entire record on appeal

pursuant to the framework set out by the Supreme Court in Miller-El, this court

concludes that Greco is not entitled to a COA. The district court’s resolution of

Greco’s § 2255 motion is not reasonably subject to debate and the issue he seeks

to raise on appeal is not adequate to deserve further proceedings. Accordingly,

this court denies Greco’s request for a COA and dismisses this appeal. Greco’s

motion to proceed in forma pauperis on appeal is granted.

Entered for the Court CLERK, COURT OF APPEALS

By Deputy Clerk

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