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Konseck v. United States


January 8, 2009


The opinion of the court was delivered by: Scullin, Senior Judge



On March 29, 2001, a grand jury sitting in the Northern District of New York returned a Second Superceding Indictment against Petitioner Michael A. Konseck. See 00-CR-502, Dkt. No. 17 ("Superceding Indictment"). That accusatory instrument charged him with committing various narcotics offenses in violation of 21 U.S.C. § 841. See id. Thereafter, on October 1, 2001, the United States filed a Criminal Information against Petitioner in this District, which charged him with knowingly receiving child pornography that had been mailed, shipped and transported in interstate commerce, contrary to 18 U.S.C. § 2252A. See 01-CR-424, Dkt. No. 2.

Following negotiations between Petitioner's counsel and the United States Attorney's Office, Petitioner entered into a plea agreement in which he agreed to plead guilty to two counts brought against him in the Superceding Indictment filed in 00-CR-502, as well as to the child pornography charge contained in the Criminal Information filed in 01-CR-424, in full satisfaction of all charges brought against him in the above-referenced criminal matters. See No. 01-CR-424, Dkt. No. 5.

On June 4, 2002, Petitioner appeared before this Court for sentencing. At that time, this Court sentenced him principally to a 138-month term of imprisonment for his conviction on Counts One and Four of the Superceding Indictment and to a concurrent 138-month term of imprisonment arising out of the child pornography conviction. See 01-CR-424, Dkt. No. 14. It does not appear that Petitioner filed any appeal regarding the foregoing.

On January 13, 2006, Petitioner filed, through counsel, a Motion to Vacate, Set Aside or Correct his Sentence pursuant to 28 U.S.C. § 2255. See 06-CV-50, Dkt. No. 1 ("Motion to Vacate"). In that application, counsel requested that this Court modify Petitioner's sentence in light of the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). See Motion to Vacate. Respondent filed a letter-brief in opposition to that application in which it opposed the relief that Petitioner requested. See 06-CV-50, Dkt. No. 5 ("Opposition").


A. Substance of Petition

In the affidavit counsel submitted in support of the Motion to Vacate, he acknowledges that the Second Circuit has held that courts may not apply Booker retroactively to cases on collateral review. See Affidavit of Thomas M. Robertson in Support of Motion to Vacate (Attachment to 00-CR-502, Dkt. No. 79) at ¶ 9. However, counsel appears to argue that, because the Supreme Court "has not definitively ruled as such," the Supreme Court may eventually reverse Second Circuit authority which holds that courts may not apply Booker retroactively and Petitioner may, therefore, be entitled to the retroactive application of Booker.

Respondent urges this Court to dismiss Petitioner's action because Second Circuit precedent squarely holds that courts may not apply Booker retroactively to actions brought under § 2255. See Opposition at 1 (citing Guzman v. United States, 404 F.3d 139 (2d Cir. 2005)).

In Pena v. United States, 534 F.3d 92 (2d Cir.), cert. denied, 129 S.Ct. 424 (2008), the Second Circuit re-affirmed its holding in Guzman and noted that "Booker does not apply retroactively to collateral challenges to judgments that were final on the day that case was decided . . . ." Id. at 93 n.3 (citing Guzman v. United States, 404 F.3d 139, 140 (2d Cir. 2005)); see also Mendoza v. United States, No. 05 CV 3661, 2008 WL 4906388, *1 (S.D.N.Y. Nov. 12, 2008) (citation omitted).

The Court entered the Judgment of Conviction that Petitioner challenges in the present civil action on June 14, 2002. See 00-CR-502, Dkt. No. 69; 01-CR-424, Dkt. No. 15. The Supreme Court decided Booker on January 12, 2005. See Booker, 543 U.S. at 220. Therefore, it is clear that the present action seeks retroactive application of the Supreme Court's holding in Booker.

"'Binding precedent for the district courts within a circuit is established by the Supreme Court and by the court of appeals for the circuit in which the district court sits.'" Stein v. Artus, No. 9:04-CV-0439, 2007 WL 3307010, *4 (N.D.N.Y. Nov. 5, 2007) (quotation omitted), appeal dismissed, Stein v. Artus, 07-4962pr, slip op. (2d Cir. Mar. 17, 2008). Since Second Circuit authority squarely holds that the relief that Petitioner seeks -- retroactive application of the Booker decision in this § 2255 action -- is unavailable to him, this Court dismisses this action as meritless.*fn2

B. Certificate of Appealability

The Court notes that 28 U.S.C. § 2253(c)(1) provides, in relevant part, that, "[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from . . . (B) the final order in a proceeding under section 2255."*fn3 28 U.S.C. § 2253(c)(1). A court may issue a certificate of appealability only "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Since Petitioner has failed to make such a showing, the Court declines to issue any certificate of appealability in this matter. See Hohn v. United States, 524 U.S. 236, 239-40 (1998).


After carefully reviewing Petitioner's application, Respondent's opposition thereto, the documents filed in both this civil action and the related criminal matters, the applicable law, and for the reasons stated herein, the Court hereby

ORDERS that Petitioner's Motion to Vacate is DENIED; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance with the Local Rules; and the Court further

ORDERS that a certificate of appealability shall not be issued in this case.


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