Opinion
No. 05 Civ. 572 (VM).
April 18, 2005
DECISION AND ORDER
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 beforeBooker issued. His arguments that the rule announced inBooker 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 inGuzman. 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 further
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 Cr. 276.
SO ORDERED.