United States District Court, S.D. New York
December 27, 2005.
DAVID ROSARIO, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
MEMORANDUM OPINION and ORDER
On August 26, 2004, the Court issued an Opinion and Order
("Order") denying Petitioner David Rosario's motion to vacate,
set aside or correct his sentence pursuant to 28 U.S.C. § 2255.
On February 7, 2005, the Court received a letter from Rosario in
which he stated that he "would like to amend [his] C.O.A. in
light of the new Supreme [sic] ruling in Booker and Fanfan."
(Ltr. from D. Rosario to Court (Feb. 2, 2005).) Construing his
pro se papers broadly, the Court will presume that Rosario
seeks a certificate of appealability ("COA") from the Order on
any ground. See 28 U.S.C. § 2253 (c) (2) (COA may be issued "if
the applicant has made a substantial showing of the denial of a
constitutional right."). The Government opposes the application.
(Ltr. from AUSA K. Lemire to Court (Dec. 14, 2005).)
In his § 2255 petition, Rosario argued (1) lack of sufficiency
of the murder charge in the indictment; (2) lack of sufficient
evidence to support his convictions; (3) undue infringement by
the Court on the jury's fact-finding function; and (4) ineffective assistance of counsel. The Court found that
Rosario had filed the § 2255 petition over two years beyond the
statute of limitations imposed by the statute, a fatal defect for
claims (1) through (3). (Order at 5-8.) Nevertheless, the Court
fully addressed these claims on the merits as if they were not
time-barred. (Order at 9-12.) The Court also gave thorough
treatment to Rosario's ineffective assistance claim. (Order at
12-17.) The Court is satisfied that no reasonable jurist would
disagree with the Court's resolution of Rosario's § 2255 petition
and that the issues require no further pursuit. See Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003).
The Supreme Court's decision in United States v. Booker,
543 U.S. 220 (2005), does not change this result. Booker does not
apply retroactively on collateral attack where, as here, the
defendant's conviction was final as of January 12, 2005. See
Guzman v. United States, 404 F.3d 139, 141 (2d Cir. 2005).
Rosario's application for a COA is denied. The Court certifies
pursuant to 28 U.S.C. § 1915 (a) (3) that any appeal from the
Order or this decision would not be taken in good faith.
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