United States District Court, S.D. New York
June 22, 2005.
JAMES BESSER, a/k/a JAMES ZERILLI, Petitioner,
JAMES WALSH, Superintendent, Respondent.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
For the reasons set forth in the supplemental report and
recommendation of Chief Magistrate Judge Andrew J. Peck, the
petition for a writ of habeas corpus is denied.
Although this Court is bound by Brown v. Greiner,
___ F.3d ___, 2005 WL 1314429 (2d Cir. June 3, 2005), the question
presented is a substantial one. Accordingly, this Court grants a
certificate of appealability on the question whether New York's
persistent felony offender statute violates the rule of Apprendi
v. New Jersey, 530 U.S. 466 (2000), in order to permit
petitioner to appeal to the Court of Appeals and, as seems
likely, upon its affirmance of this order, to seek a writ of
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