BESSER v. WALSH

LEWIS KAPLAN, District Judge

For the reasons set forth in the supplemental report and recommendation of Chief Magistrate Judge Andrew J. Peck, the petition for a writ of habeas corpus is denied.

Although this Court is bound by Brown v. Greiner, ___ F.3d ___, 2005 WL 1314429 (2d Cir. June 3, 2005), the question presented is a substantial one. Accordingly, this Court grants a certificate of appealability on the question whether New York's persistent felony offender statute violates the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), in order to permit petitioner to appeal to the Court of Appeals and, as seems likely, upon its affirmance of this order, to seek a writ of certiorari.

SO ORDERED.