Milvio DUARTE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee, 137 F. App'x 423

SUMMARY ORDER Petitioner-Appellant Milvio Duarte (“Duarte”) appeals the order of the district court (Haight, J.) denying his pro se petition for habeas corpus relief pursuant to 28 U.S.C. § 2255. For the purposes of this

summary order, we assume the parties’ familiarity with the facts, the procedural history, and the scope of the issues presented in this appeal. At Duarte’s sentencing and in his direct appeal, Duarte’s counsel did not advance arguments based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Accordingly, Duarte has procedurally defaulted any Apprendiderived arguments for collateral review of his sentence, and the district court was correct to dismiss his petition. See Massaro v.

United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) (requiring petitioner to show “cause and prejudice” before procedurally defaulted claims will be heard on collateral appeal); see also Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (explicitly recognizing that counsel may procedurally default a claim while still providing constitutionally adequate assistance). The absence of such an argument did not, moreover, constitute constitutionally ineffective assistance of counsel.

Given the state of the law at the time of sentencing, Duarte’s counsel did not, in failing to invoke Apprendi, breach an “objective standard of reasonableness” under “prevailing professional norms.” See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We have considered all of Duarte’s arguments and find them to be without merit. The judgment of the district court is therefore AFFIRMED.