Given this record, it hardly can be said that counsel's advice fell below an objective standard of reasonableness. See Rodriguez v. United States, No. 04-CV-1158, 2005 WL 755769, at *4 (E.D.N.Y. Apr. 4, 2005) ("At a Fatico hearing, the government could have presented evidence of [the petitioner's] leadership role; as demonstrated in the PSR, the government had witnesses who attested that [the petitioner] recruited his co-conspirators and organized the robbery. By avoiding a Fatico hearing, [counsel] could reasonably have been trying to avoid highlighting this damaging evidence to the [c]ourt."); Padilla v. United States, No. 02-CV-8702, 2004 WL 169743, at *5 (S.D.N.Y. Jan. 27, 2004)

"[F]ailure to make a meritless argument does not amount to ineffective assistance" under Strickland. United States v. Alvarez, 541 F. App'x 80, 83 (2d Cir. 2013) (internal quotation marks and citation omitted); see also Rodriguez v. United States, No. 04 Civ. 1158(FB), 2005 WL 755769(FB), at *4 (E.D.N.Y. Apr. 4, 2005) (denying ineffective assistance claim for failure to object to leadership enhancement where "it [was] apparent that the Government could have successfully established [Petitioner's] leadership role"). Moreover, Petitioner has also not made any showing that had counsel objected, there would have been an impact on Suriel's sentence.

It is well settled that "the failure to make a meritless argument does not rise to the level of ineffective assistance." United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995); see also Rodriguez v. United States, No. 04-CV-1158 (FB), 2005 WL 755769, at *4 (E.D.N.Y. Apr. 4, 2005) (Block, J.) (denying ineffective assistance claim for failure to object to leadership enhancement where "it [was] apparent that the Government could have successfully established [Petitioner's] leadership role"). As this Court found, Petitioner brought two lookouts to his meeting with the undercover agent and instructed them to warn him of any police presence.

Interpreting these and other relevant decisions, several judges of this district have come to the conclusion that neither Blakely nor Booker apply retroactively to any collateral challenges to judgments that were final at the time those cases were decided. See Hamdani v. United States, 2005 WL 419727 (E.D.N.Y. Feb. 22, 2005) (Trager, J.); Rodriguez v. United States, No. 04-CV-1158, 2005 WL 755769, at *4 (E.D.N.Y. April 4, 2005) (Block, J.). Moreover, the Second Circuit has now explicitly held that Booker does not apply retroactively to collateral cases.

Since Pena's judgment was final before both Blakely and Booker were decided, he cannot state a claim under either decision. See also, e.g., Eng v. Drew, No. 9:05 CV 0141, 2005 WL 928630 at *3 n. 10 (N.D.N.Y. Apr. 20, 2005) (Blakely and Booker do not apply retroactively on collateral review) (citing cases from 1st, 10th 11th Cirs.); Vasquez v. United States, No. 96-CV-4656, 2005 WL 775900 at *2 (E.D.N.Y. Apr. 6, 2005) (Booker does not apply retroactively on collateral review); Hanna v. United States, No. 97 CV 970, 2005 WL 783370 at *2 n. 1 (E.D.N.Y. Apr. 6, 2005) ("Booker does not apply retroactively to cases on collateral review."); Rodriguez v. United States, No. 04-CV-1158, 2005 WL 755769 at *4 (E.D.N.Y. Apr. 4, 2005) (Blakely and Booker do not apply retroactively to cases on collateral review); Stevens v.United States, 01 Civ. 400, 03 Civ. 4841, 2005 WL 756826 at *2 (S.D.N.Y. Apr. 4, 2005) ("Booker does not apply retroactively on collateral review."); Muniz v. United States, 04 Civ. 10209, ___ F. Supp. 2d ___, 2005 WL 589396 at *6 (S.D.N.Y. Mar. 14, 2005); Harris v. United States, 97. Civ. 1904, 2005 WL 578918 at *2 (S.D.N.Y. Mar. 11, 2005) ("'neither Blakely norBooker apply retroactively to [petitioner's] collateral challenge.'") (quoting Green v. United States, 397 F.3d at 103); Huang v. United States, 03 Civ. 3755, 91 Cr. 827, 2005 WL 550888 at *2 (S.D.N.Y. Mar. 9, 2005) (Blakely does not apply retroactively on collateral review); Woodard v. United States, No. 04-CV-3570, 2005 WL 524725 at *2 (E.D.N.Y. Mar. 7, 2005) (Booker and Blakely do not apply retroactively on collateral review for first time § 2255 petitions); United States v. Reyes, 90 Cr. 584-01, 2005 WL 427578 at *1 (S.D.N.Y. Feb. 23,