Opinion
Civil Action No. 1:05-CV-033-C.
March 31, 2005
ORDER
Petitioner Epitacia Arvizo-Pena filed a Petition for Writ of Habeas Corpus by a Person in Federal Custody pursuant to 28 U.S.C. § 2241. Petitioner seeks a modification of his sentence.
Petitioner was convicted in the United States District Court for the District of New Mexico, Las Cruces Division, on September 17, 2002, for reentry of a deported alien previously convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(a)(1)(2) and 1326(b)(2). He was sentenced to 63 months' incarceration. He did not appeal his conviction.
Petitioner was incarcerated within the jurisdiction of this Court at the time he filed his § 2241 petition.
The Respondent has not been served.
Petitioner seeks a reduction of his sentence under the Supreme Court's rulings in Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (2004), and United States v. Booker, ___ U.S. ___, 125 S.Ct. 738 (2005). Apprendi, Blakely, and Booker do not apply retroactively on collateral review. See United States v. Brown, 305 F.3d 304 (5th Cir. 2002) ( Apprendi); Green v. United States, 397 F.3d 101 (2d Cir. 2005) ("neither Blakely nor Booker establishes a new rule of constitutional law that the Supreme Court has made retroactive to cases on collateral review"); In re Anderson, 396 F.3d 1336 (11th Cir. 2005) (finding that the Supreme Court has not expressly declared Booker to be retroactively applicable to cases on collateral review); McReynolds v. United States, 397 F.3d 479 (7th Cir. 2005) (holding that " Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005"); In re Dean, 375 F.3d 1287, 1290 (11th Cir. 2004) (holding that Blakely is not applicable to cases already final); and King v. Jeter, No. 4:04-CV-0600-D, 2005 WL 195446 (N.D. Tex. Jan. 27, 2005) (holding that the decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738 (2005), is not retroactively applicable to claims first raised on collateral review).
Petitioner's claim of ineffective assistance of counsel is without merit.
IT IS, THEREFORE, ORDERED that Petitioner's § 2241 petition is denied and this cause is dismissed with prejudice.
Judgment shall be entered accordingly.
All relief not expressly granted is denied and any pending motions are denied.