Opinion
Criminal Action No. 03-10384-RWZ, Civil Action No. 05-10758-RWZ.
September 6, 2005
ORDER
On August 17, 2004, Senen Suarez was sentenced to a term of imprisonment of 70 months upon his plea of guilty to two counts of an indictment charging him with drug offenses. He was represented by retained counsel. Mr. Suarez did not appeal, but on April 15, 2005, his counsel filed a motion under 28 U.S.C. § 2255 to vacate the sentence in light of the Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005). On June 13, 2005, the Court denied the motion on the ground that no basis existed for changing the sentence.
The latest pleading, filed in the criminal case, is a pro se motion to strike the § 2255 motion on the ground that counsel was not authorized to file it and to order counsel to return the fee paid to him. The motion is denied because a new petition would be futile as Booker is not retroactive, and the Court, in any event, had decided the issue on the merits. Cirilo-Munoz v. U.S., 404 F.3d 527, 532-533 (1st Cir. 2005).