Federal Defenders of New York Second Circuit Blog


Tuesday, June 14th, 2005

Drug Use Resulting in Revocation Can Be Premised, In Part, on Results Falling Below Cutoffs Established In Testing Companies’ Contracts

United States v. Klimek, Docket No. 04-2459 (2d Cir. June 8, 2005) (Meskill, Newman, Cabranes) (Op. by Newman): In this case, briefed and argued by our own David Lewis, the Circuit ruled that, in the context of a supervised release revocation proceeding, a district court was not “per se precluded” from relying upon confirmatory drug test results that fall below the cutoff established by contracts between an outside testing company and the Adminstrative Officer of the United States Courts (“AO”).

The facts are straigtforward. Mr. Klimek, after serving a prison sentence but while still on supervised release, used drugs. Initially, he admitted using LSD, pled guilty to violating the terms of his supervised release for that reason, and was sentenced to a term of home confinement. But even before home confinement could be set up, he tested positive again, this time for cocaine use. He denied using cocaine, so his …

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Thursday, June 9th, 2005

New York Court of Appeals Upholds Persistent Felony Offender Law Despite Ring, Blakely, and Booker

People v. Rivera (June 9, 2005) (Op. by Rosenblatt): This Blog normally confines itself to Second Circuit decisions, but since we commented yesterday on the Second Circuit’s narrow decision upholding New York’s persistent felony offender statute on AEDPA review, see Brown v. Greiner, below, we thought it appropriate in the interest of completeness to discuss the New York Court of Appeals’s decision, rendered today, upholding that law on direct review. (Our prediction of a contrary result was, alas, misguided). In Rivera, that Court ruled that N.Y. Penal Law § 70.10 did not violate either Apprendi, Ring, Blakely, or Booker. Of course, it did so only by interpreting the statue in a way that (1) flatly contradicts the plain language of the law itself, and (2) flouts years of case law and accepted practice in the New York courts.

Simply put, the Court upholds the …

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Wednesday, June 8th, 2005

A Very Narrow Decision on New York’s Persistent Felony Offender Law

Brown v. Greiner, Docket No. 03-2242(L) (2d Cir. June 3, 2005) (Walker, Leval, and Katzmann) (Op. by Leval): Too much has been made of this exceedingly narrow decision in the press (see, e.g., yesterday’s front page article in the New York Law Journal) and in the blogsphere (see, e.g., Professor Berman’s description of it as a “major habeas ruling”). Contrary to some accounts, this decision did not rule that New York’s persistent felony offender law comports with the Sixth Amendment as construed in the line of cases beginning with Apprendi (2000), running through Ring (2002) and Blakely (2004), and concluding (at least for now) with Booker (2005). Rather, this case holds merely that the New York courts’ determinations in 2000 and 2001 – when only Apprendi had been decided – that this law did not violate the Sixth Amendment was not an “unreasonable” reading of …

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Monday, May 30th, 2005

Circuit Grants Habeas Based on Trial Court’s Refusal to Admit Exculpatory Testimony of a Defense Witness from a Previous Trial

Christie v. Hollins, Docket No. 03-2878 (2d Cir. May 27, 2005) (Newman, Pooler, Katzmann) (Op. by Newman): A fabulous week for habeas petitioners: This is the second time in one week that the Circuit has reversed a district court’s denial of habeas and granted the writ. See Henry v. Poole, below. Here, Judge Newman concludes that the trial court’s refusal to allow the defense to introduce a witness’s exculpatory testimony from the defendant’s first trial (at which the jury acquitted the defendant of the two more serious counts, and hung on the third count), despite the defendant’s herculean efforts to ensure the presence of the witness at the second trial, violated the defendant’s right to present a defense at trial. This was so even applying AEDPA deference: The state courts’ determination that (1) the defense had not made diligent efforts to securethe witness’s presence at trial, and (2) …

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Circuit Excises Section 3553(b)(2) in Light of Booker, and Will Review Departure Decisions under Abuse of Discretion Standard

United States v. Selioutsky, Docket No. 04-2740 , (2d Cir. May 27, 2005) (Newman, Wesley, Hall) (Op. by Newman): This is yet another opinion by Judge Newman fleshing out some important details of the post-Booker sentencing (and appellate) world left unresolved by Booker itself. In this case, the Circuit (1) excises Section 3553(b)(2), which required mandatory application of the Guidelines, except for a few very narrow departure grounds, in child pornography and other sex offense cases; and (2) holds that it will review departure decisions by district courts under the pre-PROTECT Act standard of review — abuse of discretion. Additionally, the Court clarifies that although Booker implements a general standard of reasonableness in evaluating the propriety of a sentence on appeal, the Court will review legal questions leading to the imposition of that sentence de novo, questions of fact under the clearly erroneous standard, and mixed questions …

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Thursday, May 26th, 2005

Circuit Grants Habeas on IAC Claim, and Suggests Need for En Banc Review of Whether New York’s IAC Standard Is “Contrary to” the Strickland Standard

Henry v. Poole, Docket No. 03-2884 (2d Cir. May 24, 2005) (Oakes, Kearse, Sack) (Op. by Kearse): This probably happens once in a blue moon: Judge Weinstein denies habeas, but the Circuit reverses and grants habeas. But, alas, that is what occurred in this case. The Circuit, by Judge Kearse, ruled that state trial counsel was ineffective for advancing a “fallacious” alibi defense at trial. The decision also has an interesting discussion on whether New York State’s IAC standard, see People v. Benevento, 91 N.Y.2d 708, 697 N.E.2d 584 (1998), is “contrary to” the federal Strickland standard for purposes of AEDPA deference. Although the Circuit held in an earlier case that the two standards are not contrary to each other, see Lindstadt v. Keane, 239 F.3d 191, 198 (2d Cir. 2001), both Judge Kearse and Judge Sack, in a separate concurrence, apparently disagree with that earlier case …

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Wednesday, May 25th, 2005

Second Circuit Criticizes Supreme Court Rationale in Hodari D.

U.S. v. Swindle, Docket No. 03-1773 (2d Cir. May 11, 2005) (Feinberg, Cardamone, and Parker)(Op. by Feinberg)

In a refreshingly frank decision, the Second Circuit upheld the denial of a suppression motion, finding that it was “constrained by relevant Supreme Court precedent” in affirming the legality of a seizure. In doing so, the Court was highly critical of that precedent — California v. Hodari D., 499 U.S. 621 (1991) — finding no “principled basis” for the decision.

The facts of Swindle are straightforward. While on patrol in an unmarked car in Buffalo, police were searching for a suspect whose physical description did not match that of the defendant, Swindle. While patrolling, they saw Swindle exit a “known drug house” that the suspect had supplied in the past, get in a car that resembled a car that the suspect had “been seen near” and drive away. The officers followed …

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Thursday, May 19th, 2005

A Second 2255 Petition Need Not Satisfy 2244’s Stringent “Gatekeeping” Requirements If Filed Before the First Petition Has Become Final

Usama Whab v. United States, Docket No. 05-1214 (2d Cir. May 19, 2005) (Walker, Leval, Duplantier) (Op. by Leval): This is a surprisingly good, pro-defendant opinion — in a case litigated by a pro se petitioner, no less. (Two cheers for the Court!) Essentially, the Circuit held that if a defendant files a second 2255 motion before his first 2255 petition has become “final” (i.e., before the time for seeking cert. on the first petition has run), the defendant need not satisfy 2244(b)(3)(A)’s rigorous requirements for “second or successive petitions” (including the requirement of prior approval from the Circuit before filing) . While the traditional “abuse of the writ” doctrine would still apply to such petitions, a petitioner need not satisfy 2244’s gatekeeping requirements in such a situation.

The essential facts are as follows. After the Circuit affirmed his conviction on direct appeal, Whab filed his first …

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Thursday, May 5th, 2005

Does a District Court Have the Authority to Use the Beyond-a-Reasonable-Doubt Standard at Sentencing after Booker?

United States v. Evelyn Gonzalez, Docket No. 04-1956-cr (2d Cir. May 3, 2005) (Meskill, Calabresi, Wesley) (Op. by Meskill): This odd case has already received a good deal of attention from Professor Berman and others. And rightly so, for it seems to suggest — if only in dicta and only by silence — that a district court has the authority, after Booker, to use the beyond-a-reasonable-doubt (“BRD”) standard of proof to determine facts relevant to Guidelines enhancements.

The facts are simple. The defendant was charged with conspiracy to distribute 5 kilograms of cocaine. She was convicted at trial by a jury. However, in response to two questions, the jury specfically found that Ms. Gonzalez’s offense did not involve either 5 kilograms or more, or 500 grams or more, of cocaine.

At the pre-Booker sentencing, the Government relied on Watts to argue that in determining the appropriate offense …

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Saturday, April 30th, 2005

A Blanket Order concerning Appeals with Unpreserved Booker Errors

Yesterday, April 29th, the Court issued the following blanket order, which applies to all appeals raising a Booker claim in which the error was not preserved (i.e., primarily cases in which the sentencing occurred before Blakely was decided in June 2004). It states, in is cryptic entirety,

“John M. Walker, Jr., Chief Judge of the United States Court of Appeals for the Second Circuit, today announced the following: In cases pending on direct review involving appeals of sentences imposed prior to United States v. Booker, 125 S. Ct. 738 (2005), in which the sentencing judge’s error in applying the Sentencing Guidelines mandatorily was not preserved for appellate review by an appropriate objection, the Court will be receptive to motions agreed to by all parties to the appeal to remand pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), without the need for briefing …

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Friday, April 29th, 2005

The Guidelines Grind Continues, even after Booker

United States v. Maloney, Docket No. 03-1753 (2d Cir. April 28, 2005) (Jacobs, Pooler, Sotomayor) (Op. by Sotomayor): Some of us had hoped that Booker, rendering the Guidelines-derived range merely advisory, would put an end to the mind-numbing analyses of poorly drafted Guidelines provisions churned out by the Circuit each week. Such hopes had been increased by the Court’s decision in Rubenstein (see Blog below), in which the Court explained that because reasonableness is now the end-all-and-be-all for determining whether a sentence will be upheld on appellate review (rather than the correct application of the Guidelines), and because whether a sentence is reasonable or not is not necessarily dependent on whether it flowed from a correctly calculated Guidelines range, the Court has the authority to overlook Guidelines disputes and simply affirm or vacate a sentence based on its reasonableness (or lack thereof).

In Rubenstein, the Court decided …

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