MEMORANDUM AND ORDER

DAVID TRAGER, District Judge

On August 4, 2004, Michael J. Hamdani ("Hamdani" or "petitioner"), appearing pro se, filed the instant motion for Habeas Corpus pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the motion is denied.

Background

On July 23, 2003, upon completion of a two-day trial, Petitioner was convicted by a jury of possession with intent to use and transfer unlawfully five or more false identification documents, in violation of 18 U.S.C. § 1028(a)(3). Petitioner sought to represent himself at trial, despite repeated warnings by this court of the dangers of doing so, as well as this court's recommendation that petitioner avail himself of counsel. Nevertheless, petitioner insisted on proceeding pro se. The court found that the petitioner knowingly and intelligently waived his right to counsel but appointed Uzmah Saghir, Esq., to assist petitioner in an advisory capacity during trial.

Following his conviction, petitioner was sentenced to a term of imprisonment of 36 months, three years' supervised release and no fine. The court enhanced petitioner's sentence six levels because the offense involved 100 or more documents, two levels because petitioner was an organizer of the offense and two levels for obstruction of justice because the petitioner fled the jurisdiction.

Discussion

Hamdani's petition alleges that he received ineffective assistance of counsel and that the sentencing enhancements imposed by this court were unconstitutional in light of Blakely v. Washington, 124 S. Ct. 2531 (2004). In a subsequent letter filed with the court on January 31, 2005 (the "Supplemental Habeas Brief"), petitioner further challenges his sentence under United States v. Booker, 125 S. Ct. 738 (2005), and again presses his ineffective assistance claim.

Based on petitioner's conduct during trial, his claims regarding ineffective assistance of counsel are denied. Petitioner's claim that "defense counsel[failed] to file a notice of appeal as it was specifically instructed by Petitioner," see Petitioner's Supplemental Brief at 1, is contradicted by an affidavit provided by Uzmah Saghir. In the affidavit, she states, "[s]o far as Counsel's recollection goes, Counsel was instructed by the plaintiff not to file a notice of appeal as the plaintiff wanted to participate in inmate treaty transfer program and go back to Canada. In the plaintiff's opinion an appeal was a hindrance to his transfer program so he decided not to appeal." See Affidavit of Uzmah Saghir, dated November 30, 2004, ¶ 4.

Petitioner's claims under Blakely and Booker are denied as well. InGreen v. United States, 2005 WL 237204 (2d Cir. Feb. 2, 2005), the Second Circuit held that neither Booker nor Blakely applies retroactively to a second or successive habeas appeal. See also Carmona v. United States, 390 F.3d 200 (2d Cir. 2004) (holding that the rule articulated inBlakely does not apply retroactively to second/successive habeas petition); Forbes v. United States, 202 F.3d 143 (2d Cir. 2001) (same with respect to Apprendi v. New Jersey, 530 U.S. 466 (2000)). Green involved a second/successive habeas action, the first of which had already been dismissed by the district court before the new rule of law was announced. The case at bar, however, involves a habeas petition not yet decided at the time of the announcement of the new rule of law. Thus, there is potentially some factual difference between this case and prior cases treating the question of Booker's retroactivity.

However, as the Seventh Circuit has made clear, see McReynolds v. United States, 2005 WL 237642 (7th Cir. 2005), prior Supreme Court case law establishes that Booker does not apply retroactively to first or second cases on collateral review. In Schriro v. Summerlin, 124 S. Ct. 2519 (2004), the Supreme Court considered whether its prior ruling in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002), which held that any aggravating factors leading to the imposition of the death penalty had to be submitted to a jury and proven beyond a reasonable doubt, applied retroactively to the case of an individual prosecuted under an Arizona statute wherein the judge, not a jury, determined the aggravating factors warranting imposition of the death penalty. Ring extended the Court's prior holding in Apprendi that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt," see Apprendi, 530 U.S. at 490, to the Arizona statute at issue in that case.

The Schriro court held that only those "new rules" deemed substantive, as opposed to those that are merely procedural, apply retroactively to convictions that are already final. 124 S. Ct. at 2522. Deeming Ring to be "properly classified as procedural," id. at 2523, the Court held that the rule did "not apply retroactively to cases already final on direct review." Id. at 2526. The Supreme Court's refusal to apply Ring retroactively to cases already decided, even when the underlying conviction would lead to death, resolves, a fortiori, any doubt about the extent of the Second Circuit's decision in Green. After Green, and in light of Schriro, it makes no difference whether petitioner's collateral challenge was his first or second appeal, or whether it was adjudicated prior to the announcement of the new rule of constitutional law inBooker. See McReynolds, 2005 WL 237642 at *2 ("Booker does not apply retroactively to criminal cases that became final before its release date on January 12, 2005").

Conclusion

SO ORDERED.