United States v. Sullivan ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS 27, 2007
July
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-30530
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff–Appellee
v.
MARVIN K SULLIVAN
Defendant–Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:04-CV-1087
USDC No. 6:01-CR-60049
Before KING, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Marvin K. Sullivan, federal prisoner # 11003-035, appeals the denial of his
28 U.S.C. § 2255 motion in which he challenged his conviction and sentence for
making and subscribing a false tax return.
Sullivan argues that Booker should be applied to his case retroactively and
that it would be a miscarriage of justice not to apply Booker. Booker does not
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-30530
apply retroactively to cases on initial collateral review. United States v. Gentry,
432 F.3d 600, 604 (5th Cir. 2005). Further, Booker is not a ground for filing a
successive § 2255 motion. In re Elwood, 408 F.3d 211, 213 (5th Cir. 2005).
Sullivan’s argument that his conviction is not final is without merit. His
conviction became final after the expiration of the direct appellate process. See
Gentry, 432 F.3d at 604 n.2.
Sullivan also contends that he was denied the opportunity to call an
Assistant United States Attorney as a witness in connection with his argument
that the Government breached the plea agreement by failing to file a motion
under U.S.S.G. § 5K1.1. Sullivan failed to challenge the plea agreement on
direct appeal and was thus precluded from raising the claim in a § 2255 motion.
See United States v. Lopez, 248 F.3d 427, 433 (5th Cir. 2001). The Government
invoked the procedural bar in the district court. See United States v. Drobny,
955 F.2d 990, 995 (5th Cir. 1992). Therefore, the district court did not err in
denying Sullivan’s request to present testimony on this issue.
Sullivan argues again before this court that the BOP changes regarding
placement of prisoners in community confinement centers violates due process
and the Ex Post Facto Clause. Because Sullivan previously raised this issue on
direct appeal, it should not be considered in a § 2255 motion. See United States
v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986). The district court did not err in
denying this claim. To the extent that Sullivan attacks the applicability of the
BOP policies to him, the argument is unavailing because it is not properly raised
in a § 2255 motion. See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000).
Accordingly, the judgment of the district court is AFFIRMED.
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