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Guzman v. United States

United States Court of Appeals for the Second Circuit

October 19, 2004, Argued ; April 8, 2005, Decided

Docket No. 03-2446-pr

Opinion

 [*140]  DENNIS JACOBS, Circuit Judge:

Petitioner Miguel Guzman appeals from the denial of postconviction relief by the United States District Court for the Southern District of New York (Scheindlin, J.). We previously affirmed the judgment of the district court, but held the mandate pending the Supreme Court's decision in  United States v. Booker, 160 L. Ed. 2d 621,     U.S.    , 125 S. Ct. 738 (2005). [**2]  We now hold that  Booker does not apply retroactively to cases on collateral review, and therefore affirm.

BACKGROUND 

Guzman was convicted in 1998 on numerous racketeering and drug-trafficking counts and sentenced to six life terms plus 145 years; the life terms were imposed pursuant to the Federal Sentencing Guidelines, and were based in part on factual findings made by the district judge. On March 23, 2001, this Court affirmed the judgment, and on October 1, 2001, the Supreme Court denied certiorari, rendering Guzman's conviction final. See  Beard v. Banks, 542 U.S. 406, 159 L. Ed. 2d 494, 124 S. Ct. 2504, 2510 (2004).

Guzman subsequently filed a motion pursuant to 28 U.S.C. § 2255 collaterally attacking his sentence, and was denied relief in an order entered by Judge Scheindlin on June 20, 2003. We affirmed by order dated October 25, 2004, but held the mandate pending the Supreme Court's decision in United States v. Booker.  Guzman v. United States, 112 Fed. Appx. 766, 2004 WL 2378810 (2d Cir. 2004). After Booker was issued, we solicited briefing on [**3]  the applicability of Booker to Guzman's appeal.

We now expand the certificate of appealability ("COA") to include the issues raised by Booker. See 28 U.S.C. § 2253(c)(2) (] COA "may issue . . . if the applicant has made a substantial showing of the denial of a constitutional right");  Slack v. McDaniel, 529 U.S. 473, 483-84, 146 L. Ed. 2d 542, 120 S. Ct. 1595 (2000) (under § 2253(c)(2), COA appropriate where, inter alia, reasonable jurists could debate the proper resolution of the issue); see also  Green v. Mazzucca, 377 F.3d 182, 183 (2d Cir. 2004) (per curiam) (observing that this Court can "expand a petitioner's COA when appropriate"). For the following reasons, we hold that Booker is not retroactive: it does not apply to cases on collateral review where the defendant's conviction was final as of January 12, 2005, the date that Booker issued.

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404 F.3d 139 *; 2005 U.S. App. LEXIS 5700 **

MIGUEL GUZMAN, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.

Subsequent History: US Supreme Court certiorari denied by  Guzman v. United States, 2005 U.S. LEXIS 8649 (U.S., Nov. 28, 2005)

Prior History:  [**1]  Petitioner appeals from the denial of postconviction relief by the United States District Court for the Southern District of New York (Scheindlin, J.). We previously affirmed the judgment of the district court, but held the mandate pending the Supreme Court's decision in  United States v. Booker,     U.S.    , 160 L. Ed. 2d 621, 125 S. Ct. 738 (2005). We now hold that Booker does not apply retroactively to cases on collateral review.

 Guzman v. United States, 112 Fed. Appx. 766, 2004 U.S. App. LEXIS 22145 (2004)

Disposition: AFFIRMED.

CORE TERMS

sentencing, Guidelines, retroactively, watershed, collateral, cases, rules of procedure, new rule, announced, accuracy

Criminal Law & Procedure, Habeas Corpus, Appeals, Certificate of Appealability, General Overview, Jurisdiction, Cognizable Issues, Threshold Requirements, Adjustments & Enhancements, Criminal History, Miscellaneous Offenses, Gambling, Penalties, Entry of Pleas, Guilty Pleas, Sentencing, Sentencing Guidelines, Imposition of Sentence, Findings, Governments, Courts, Rule Application & Interpretation, Judicial Precedent, Legislation, Effect & Operation, Retrospective Operation, Counsel, Right to Counsel, Factors, Clerks of Court