Opinion
No. 05-30530 Summary Calendar.
July 27, 2007.
Cristina Walker, Assistant U.S. Attorney, U.S. Attorney's Office Western District of Louisiana, Shreveport, LA, Howard Cobb Parker, Assistant U.S. Attorney, U.S. Attorney's Office Western District of Louisiana, Lafayette, LA, for Plaintiff-Appellee.
Richard T. Simmons, Jr., Hailey, McNamara, Hall, Larmann Papale, Metairie, LA Defendant-Appellant.
Appeal from the United States District Court for the Western District of Louisiana. USDC Nos. 6:04-CV-1087, 6:01-CR-60049.
Before KING, STEWART, and OWEN, Circuit Judges.
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 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.