                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          May 9, 2006
                                TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                      No. 05-1220
       v.                                             (D. Colorado)
 ROBERT B. SULLIVAN,                    (D.C. Nos. 04-MK-2088 and 03-CR-210)

              Defendant-Appellant.


                                     ORDER


Before EBEL, McKAY, and HENRY, Circuit Judges.



      Robert B. Sullivan, a federal prisoner proceeding pro se, seeks a Certificate

of Appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2255 motion to

vacate his sentence. We deny his request for a COA and dismiss this appeal.

                               I. BACKGROUND

      In 2003, a jury convicted Mr. Sullivan of unlawful possession of a firearm.

The Presentence Report (PSR) recommended a sentence range of 41-51 months’

imprisonment, based in part on its characterization of Mr. Sullivan’s prior

conviction for arson as a crime of violence. Although Mr. Sullivan, with the

assistance of counsel, filed some objections to the PSR, none of the objections

related to the PSR’s characterization of the prior conviction as a crime of
violence. The district court sentenced him to 51 months’ imprisonment.

      On direct appeal to this court, Mr. Sullivan did not raise arguments related

to the calculation of his sentence, and argued only that the district court should

have granted a mistrial. We affirmed the district court’s decision in August 2004.

See United States v. Sullivan, 108 F. App’x 579 (10th Cir. 2004) (unpublished).

      On October 18, 2004, Mr. Sullivan filed a pro se § 2255 petition with the

district court, arguing for the first time that his Sixth Amendment rights were

violated because the Government did not prove to a jury beyond a reasonable

doubt that his prior conviction was a crime of violence. In response, the

Government argued that Mr. Sullivan should have raised this issue on direct

appeal, and because he did not, he is barred from raising in collaterally.

      While his § 2255 motion was pending, the Supreme Court on January 10,

2005 denied Mr. Sullivan’s petition for certiorari with respect to his underlying

conviction, thereby rendering his direct appeal final. On January 12, 2005, the

Court decided United States v. Booker, 543 U.S. 220 (2005). A few weeks later,

Mr. Sullivan addressed Booker in supplemental briefing and also contended that

the reason he had not raised the Sixth Amendment issue on direct appeal was

because his counsel was ineffective. The Government, in response, argued that

the court should not give Booker retroactive effect.

      On April 25, 2005, the district court denied Mr. Sullivan’s petition. It held


                                          2
(1) that defendant’s ineffective assistance of counsel argument was without merit;

and (2) that Mr. Sullivan should have raised the Sixth Amendment claim on direct

appeal, and therefore procedurally defaulted on this claim. Furthermore, the

district court construed Mr. Sullivan’s supplemental briefing as requesting re-

sentencing in light of Booker. As to that argument, the district court held that

Booker applied only to cases where direct appeal was pending as of the time the

opinion issued. Because Mr. Sullivan’s direct appeal was no longer pending as of

January 10, 2005, two days before the Court issued Booker, Mr. Sullivan was not

entitled to re-sentencing. On appeal, Mr. Sullivan asks this court to grant him a

COA on all issues the district court considered.

                                 II. DISCUSSION

      We may grant a COA only if the prisoner has “made a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When the district

court relies on procedural grounds to dismiss a prisoner’s habeas petition, as the

district court did here, this court will issue a COA “when the prisoner shows, at

least, that jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right and that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000). We need not undertake a “full

consideration of the factual or legal bases adduced in support of the claims,” but


                                          3
rather should conduct “an overview of the claims in the habeas petition and

[make] a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322,

336 (2003).

      As the district court recognized, “the general rule [is] that claims not raised

on direct appeal may not be raised on collateral review unless the petitioner

shows cause and prejudice.” Massaro v. United States, 538 U.S. 500, 504 (2003).

Here, Mr. Sullivan contends that ineffective assistance of counsel justifies his

failure to raise the Sixth Amendment argument on direct review. “If [Mr.

Sullivan] can demonstrate that he received ineffective assistance of counsel, he

will have established the requisite cause and prejudice to overcome application of

the procedural bar.” United States v. Harms, 371 F.3d 1208, 1211 (10th Cir.

2004). Thus, in order for Mr. Sullivan to overcome the procedural bar to his case,

he must show that, under Strickland v. Washington, 466 U.S. 668 (1984), his

counsel’s performance “fell below an objective standard of reasonableness,” id. at

688, and “that the deficient performance prejudiced the defense,” id. at 687.

      For substantially the same reasons as contained in the district court’s order,

we agree that Mr. Sullivan has failed to make a showing on either of these prongs

sufficient to overcome the procedural bar. At the time Mr. Sullivan was

sentenced, the Supreme Court had not yet issued its opinion in either Blakely v.

Washington, 542 U.S. 296 (2004) or Booker: it had, however, decided Apprendi v.


                                          4
New Jersey, 530 U.S. 466 (2000). Nonetheless, this court’s precedent clearly

foreclosed the argument that counsel should have argued, under Apprendi, that

application of the Sentencing Guidelines violated Mr. Sullivan’s Sixth

Amendment rights. See United States v. Jackson, 240 F.3d 1245, 1249 (10th Cir.

2001) (“The Sentencing Guidelines are not subject to the Apprendi rule . . .

Apprendi has nothing to do with the Sentencing Guidelines.” (internal quotation

marks omitted) (overruled on other grounds by United States v. Prentiss, 256 F.3d

971, 981 (10th Cir. 2001) (en banc)). Even if Mr. Sullivan’s counsel could have

predicted an extension of Apprendi, the Supreme Court made clear that a court

does not violate a defendant’s Sixth Amendment rights by taking into account the

fact that the defendant has prior convictions: “Other than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury and proved beyond a reasonable

doubt.” 530 U.S. at 490 (emphasis added).

      Mr. Sullivan notes that the Supreme Court had granted certiorari in Blakely

before he was sentenced, and that the parties had argued that case before the

Supreme Court before his counsel filed his brief in his direct appeal before this

court. Therefore, “[i]t was not too late to argue the Sixth Amendment issues in

Blakely as plain error” on direct appeal. Aplt’s Br. at 26. However, as the

district court noted, “[t]he Sixth Amendment [right to counsel] does not require


                                          5
counsel for a criminal to be clairvoyant” and predict what the Supreme Court is

likely to decide. Harms, 371 F.3d at 1212. Furthermore, Mr. Sullivan cannot

show that he was prejudiced by counsel’s decision not to object to the

characterization of his prior conviction as a crime of violence. After Booker, we

have held that “whether the present offense and prior offenses constitute felonies

that are crimes of violence or controlled substance offenses are questions of law

unaffected by the Supreme Court’s holding in Booker.” United States v. Small,

423 F.3d 1164, 1188 (10th Cir. 2005).

      For the reasons explained above, Mr. Sullivan’s argument that he received

ineffective assistance of counsel is without merit. Because Mr. Sullivan has

failed to make a sufficient argument to overcome the procedural bar, no jurist of

reason would find the district court’s application of the procedural bar debatable.

Therefore, we deny Mr. Sullivan’s application for a COA on this issue.

      Additionally, jurists of reason could not debate the district court’s decision

that Booker does not apply retroactively. Since the district court issued its

decision denying Mr. Sullivan’s habeas petition, this court has explicitly rejected

a petitioner’s attempt to argue for re-sentencing in habeas proceedings, and held

that “Booker does not apply retroactively to initial habeas petitions.” United

States v. Bellamy, 411 F.3d 1182, 1186 (10th Cir. 2005). Therefore, Mr.

Sullivan’s re-sentencing “claim may not be brought in this initial habeas review


                                          6
under 28 U.S.C. § 2255.” Id. at 1188.




                              III. CONCLUSION

      Accordingly, we deny Mr. Sullivan’s application for a COA and dismiss his

appeal.



                                            Entered for the Court,


                                            Robert H. Henry
                                            Circuit Judge




                                        7
