                                                                          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       This order is not binding precedent, except under the doctrines of law of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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