United States v. Sullivan , 160 F. App'x 728 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 23, 2005
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 05-3124
v. District of Kansas
CLARENCE E. SULLIVAN, (D.C. Nos. 04-CV-3226-RDR and
03-CR-40062-01-RDR)
Defendant-Appellant.
ORDER *
Before HARTZ, SEYMOUR, and McCONNELL, Circuit Judges.
Clarence E. Sullivan, a federal prisoner proceeding pro se, seeks a
certificate of appealability (COA) that would allow him to appeal from the district
court’s order denying his habeas corpus petition under 28 U.S.C. § 2255. See 28
U.S.C. § 2253(c)(1)(B). Because we conclude that Mr. Sullivan has failed to
make “a substantial showing of the denial of a constitutional right,” we deny his
request for a COA, and we dismiss the appeal. 28 U.S.C. § 2253(c)(2).
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
I. Background
On December 15, 2003 Mr. Sullivan pleaded guilty to one count of
possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g) and
924(a)(2). In his plea agreement, Mr. Sullivan waived the right to challenge his
sentence under 28 U.S.C. § 2255. On April 9, 2004, Mr. Sullivan was sentenced
to a term of 120 months’ imprisonment. Judgment was entered on April 16,
2004. Mr. Sullivan did not file a direct appeal.
Mr. Sullivan commenced this habeas corpus action in the district court on
July 22, 2004. In his petition, Mr. Sullivan argued that he is entitled to
resentencing under Blakely v. Washington, 542 U.S. 296 (2004), and United States
v. Booker, 543 U.S. 220 (2005). The district court denied the motion on February
3, 2005, finding that Mr. Sullivan had waived his right to habeas corpus relief
under 18 U.S.C. § 2255 and that the relief he requested did not apply
retroactively. The court also denied Mr. Sullivan’s request for a COA.
II. Claims on Appeal
The denial of a motion for relief under 28 U.S.C. § 2255 may be appealed
only if the district court or this Court first issues a COA. 28 U.S.C. §
2253(c)(1)(B). A C.A. 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). In order
to make such a showing, a petitioner must demonstrate that “reasonable jurists
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could debate whether . . . 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. McDonnell, 529 U.S. 473, 484 (2000) (internal
quotation marks omitted).
In his request for a C.A. before this Court, Mr. Sullivan makes two
challenges. First, he claims that his trial counsel was ineffective in allowing him
to waive his right to seek collateral relief in his plea agreement. Second, he
claims that the sentence imposed by the district court violated his constitutional
rights by lengthening his term of imprisonment beyond the statutory maximum
based on facts that he did not admit and were not proven by a jury. Because Mr.
Sullivan’s constitutional challenge lacks merit, we need not decide whether
counsel was ineffective in allowing Mr. Sullivan to waive his right to collateral
review.
Mr. Sullivan’s arguments amount to a claim that we should retroactively
apply Blakey and Booker to invalidate his sentence. However, this Court has held
that “Blakey does not apply retroactively to convictions that were already final at
the time the Court decided Blakey.” United States v. Price, 400 F.3d 844, 849
(10th Cir. 2005). And we have held the same for Booker. United States v. Bella
my, 411 F.3d 1182, 1186 (10th Cir. 2005) (“Booker does not apply retroactively
to initial habeas petitions.”). Mr. Sullivan’s conviction became final on April 16,
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2004, more than two months before the Supreme Court issued an opinion in
Blakey and well before the Court’s opinion in Booker. Thus, Mr. Sullivan cannot
challenge his sentence under either Blakey or Booker.
Accordingly, we DENY Clarence E. Sullivan’s request for a C.A. and
DISMISS this appeal.
Entered for the Court,
Michael W. McConnell,
Circuit Judge
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