The opinion of the court was delivered by: VICTOR MARRERO, District Judge
Pro se petitioner George Arthur ("Arthur") has made a
motion attacking his sentence pursuant to 28 U.S.C. § 2255.
Arthur was convicted by a jury for conspiring to distribute and
possess with intent to distribute one kilogram or more of heroin
in violation of 21 U.S.C. § 846, and for distributing and
possessing with intent to distribute heroin in violation of
21 U.S.C. §§ 812, 814(a)(1) and (b)(1)(C). The Court sentenced
Arthur to 151 months imprisonment based on its finding that
Arthur could be held responsible for six kilograms of heroin
distributed by the conspiracy.
The sole claim contained in Arthur's motion is his allegation
that the sentence was imposed under a mandatory Sentencing
Guidelines regime that was ruled unconstitutional by Blakely v.
Washington, 124 S. Ct. 2531 (2004) and United States v.
Booker, 125 S. Ct. 738 (2005). Unfortunately for Arthur, the
Second Circuit, in the recent case of Guzman v. United States,
No. 03-2446-PR, 2005 WL 803214 (2d Cir. Apr. 8, 2005), has
definitively rejected any basis for his claim. In that case, the
Second Circuit held that Booker does not apply to defendants whose convictions were "final as of January 12,
2005, the date that Booker issued." Id. at *4. The docket
sheet for Arthur's criminal case shows that the mandate affirming
Arthur's conviction was issued by the Court of Appeals on
December 8, 2003.
Arthur does not dispute that his conviction was final before
Booker issued. His arguments that the rule announced in
Booker was compelled by Apprendi v. New Jersey, 530 U.S. 466
(2000), which was decided before the Court sentenced Arthur, were
similarly considered and rejected by the Second Circuit in
Guzman. See Guzman, 2005 WL 803214 at *2-*3. Consequently,
the Court must deny Arthur's petition. Since this petition
presents a pure question of law as to which there is no longer
any doubt, the Court will not hold an evidentiary hearing on
Arthur's motion, and will not grant Arthur a certificate of
appealability pursuant to 28 U.S.C. § 2253(c)(1)(B).
Arthur has also reapplied for the Court to appoint counsel to
represent him on this motion. The Court had stated by Order dated
January 3, 2005, that it would reconsider his application if
subsequent legal developments enabled him to show that his
petition had some merit. Again, because of Guzman, Arthur
cannot make this necessary showing.
For the reasons stated above, it is hereby
ORDERED that the motion of George Arthur attacking his sentence pursuant to 28 U.S.C. § 2255 is denied; and it is
ORDERED that Arthur's renewed motion for appointment of
counsel is denied.
No certificate of appealability will issue pursuant to
28 U.S.C. § 2253. The Clerk of Court is directed to close this case,
and any open motions under this docket number or docket number 01
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