I am an attorney duly admitted to practice law in the State of New York and before this Court and am a member of the CJA Panel of this Court. I am an associate of Alan S. Futerfas, Mr. Futerfas along with Gerald Shargel represented William Underwood at his trial in 1989 before the Honorable Judge Miriam Goldman Cederbaum in the Southern District of New York. As Mr. Underwood is serving a life sentence, and I believe, is entitled to substantial relief in light of Booker, Blakely and Apprendi, the requested relief should be granted. Indeed, I believe Mr. Underwood may be the only petitioner in the country who-years before Apprendi-expressly raised and preserved the Sixth Amendment challenge to the Federal Sentencing Guidelines that Booker now recognizes.

As reflected in this Court's decision affirming the conviction and sentence below, United States vs. William Underwood, 932 F.2d 1049,1053-1055 (2na) (2nd Cir. 1991). Mr. Underwood explicitly raised a Sixth Amendment challenge to the application of the Guidelines at trial, sentence and on appeal. The district court declined counsel's request at trial for a special verdict that would have permitted the jury to find that the charged offenses concluded before November 1987, the effective date of the Guidelines. At sentencing Mr. Underwood asserted that the application of the Guidelines to his case and the Court's finding of facts by a preponderance of the evidence violated his Sixth Amendment jury trial right.

In a section of this Court's 1991 decision on direct appeal called "Applicability of the Sentencing Guidelines," this Court rejected Mr. Underwood's Sixth Amendment challenges.

This Court's 1991 ruling on the Sixth Amendment issues which Mr. Underwood raised and preserved is now squarely incompatible with the recent decisions of the Supreme Court in United States v. Booker, 543 U.S.__, 125 S. Ct. 738 (January 12, 2005) and Blakely v. Washington, 542 U.S.___, 124 S. Ct. 2531 (2004) . Having preserved a Sixth Amendment challenge to the constitutionality of the Guidelines, Mr. Underwood is entitled, we believe, to relief on a second or successive application for habeas review where it is his first application to vacate his sentence filed after, and within one year of, Blakely. (Underwood, 932 F.2d at 1053-1055; and 15 F.3d 16-19 & n. 3)

The Importance of the pending application to Mr. Underwood cannot be understated. He is currently serving a life sentence without the possibility of parole. Had the principle of Booker been recognized by the district court at the time of sentencing, Mr. Underwood's Sixth Amendment challenges would have prevailed, and he would now be eligible for release from jail. Mr. Underwood stands in a unique position among those petitioners whose convictions were final more than one year before Blakely, because he has properly preserved the Sixth Amendment issue.