Nery G. Ventura v. Dept. of Homeland

1The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota, adopting the report and recommendations of the Honorable Marshall
P. Young, United States Magistrate Judge for the District of South Dakota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2137
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Walter Gonzalez, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
United States of America, *
* [UNPUBLISHED]
Appellee. *
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Submitted: November 29, 2005
Filed: December 9, 2005
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Before MELLOY, MAGILL, and GRUENDER, Circuit Judges.
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PER CURIAM.
Walter Gonzalez filed a 28 U.S.C. § 2255 motion, seeking relief based on
United States v. Booker, 125 S. Ct. 738 (2005), and based on two criminal-history
issues he did not pursue on direct appeal. The district court 1 denied Gonzalez’s
motion, but granted a certificate of appealability (COA) on whether the rule
announced in Booker applies retroactively to cases on collateral review. We have

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since concluded that it does not. See Never Misses A Shot v. United States, 413 F.3d
781, 783-84 (8th Cir. 2005) (per curiam). Further, Gonzalez has not made a
substantial showing that he was denied a constitutional right so as to justify expanding
the scope of the COA to include his criminal-history arguments. See 28 U.S.C. §
2253(c); Pruitt v. United States, 233 F.3d 570, 572-73 (8th Cir. 2000) (appellate
review of ruling on § 2255 motion is limited to issues specified in COA), cert. denied,
533 U.S. 932 (2001). Accordingly, we affirm. See 8th Cir. R. 47B.
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