Federal Defenders of New York Second Circuit Blog


Tuesday, April 5th, 2005

Deductive Logic Comes to the Second Circuit: The Meaning of an “Either/Or” Adjudication by a State Appellate Court for a Subsequent Habeas Petition

DeBerry v. Portuondo, Docket No. 03-2418 (2d Cir. April 4, 2005) (Walker, Oakes, and Pooler) (Opinion by Pooler) (Concurrence by Walker): In this case, the Second Circuit affirms the district court’s denial of a § 2254 petition filed by a state prisoner claiming that the prosecutor violated the rule of Batson v. Kentucky, 476 U.S. 79 (1986), in using his peremptory challenges to strike African-Americans from the jury at petitioner’s murder trial. Readers interested in the Batson issue should read the opinion for themselves. This Blog will focus on another issue touched upon by this case: What is the effect on a subsequent habeas petition when the claim advanced in the habeas was originally rejected by a state appellate court simply as “either” unpreserved for appellate review “or” without merit?

This is an issue that has been kicking around for awhile in the Circuit, and there is clearly …

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Monday, April 4th, 2005

Yet Another Supreme Court Decision on AEDPA’s One-Year Clock

Johnson v. United States, No. 03-9685 (U.S. April 4, 2005) : In a 5-4 decision, the Supreme Court by Justice Souter ruled that when a petitioner files a § 2255 petition based on a claim that his federal sentence was improperly enhanced by a state conviction that was vacated subsequent to the federal sentencing, AEDPA’s one-year statute of limitations starts running as of the date that the petitioner receives notice of the state court order vacating the predicate state conviction. However, the Court also ruled that a petitioner can take advantage of this rule only if he has sought vacatur of his state conviction with due diligence after the district court has entered judgment in the federal case. Because the petitioner Johnson waited more than 3 years after entry of judgment in the federal case to file a motion in state court to vacate the predicate convictions, and proffered …

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Can an Incorrectly Calculated Guidelines Sentence Be Reasonable under Booker (or Vice-Versa)? Second Circuit Asks, but Does Not Answer, the Question

United States v. Rubenstein, Docket No. 03-1721 (2d Cir. March 31, 2005) (Cardamone, Jacobs, and Cabranes) (Op. by Jacobs):

Introduction: In this case, the Court rejects a legal challenge to the defendants’ conviction for improperly removing asbestos under the Clean Air Act, but vacates their sentences because of an improperly imposed 4-level enhancement. In so doing, the Court “express[ed] no opinion as to whether an incorrectly calculated Guidelines sentence could nonetheless be reasonable” and thus affirmed on appeal regardless of the error, Opinion at 13, but chose to vacate the pre-Booker sentence anyway (rather than engage in Booker‘s reasonableness analysis) “because we think that the influence of this error is likely to be so pronounced that it could cause resentencing after remand to be unreasonable.” Op. at 19.

In a concurrence, Judge Cardamone tantalizingly opines that “it is entirely possible that a correctly calculated Guidelines sentence …

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Wednesday, March 30th, 2005

Supreme Court Modifies the Second Circuit’s Rule Concerning the Staying of Mixed Habeas Petitions

Rhines v. Weber, No. 03-9046, 544 U.S. ___ (March 30, 2005) (Op. by O’Connor): In this case, the Supreme Court addressed the question of the proper procedure a district court should employ when faced with a mixed habeas petition — i.e., one containing both exhausted claims and unexhausted claims — given 28 U.S.C. § 2254(b)(1)(A)’s command that no writ can “be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State.” The Court reversed the decision below from the Eighth Circuit, which ruled that “a district court has no authority to hold a habeas petition containing unexhausted claims in abeyance absent truly exceptional circumstances.” Under the Eighth Circuit rule, a district court must generally dismiss mixed petitions, even in cases where AEDPA’s one-year clock has already run, see 28 U.S.C. § 2244(d)(2), and thus where dismissal essentially …

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Friday, March 25th, 2005

Gun Convictions Upheld on Sufficiency Challenge, and District Court’s Error in Failing to Disclose Pretrial Services Report to Defendant Was Harmless

United States v. Lewter, Docket No. 04-2546 (2d Cir. March 24, 2005) (Meskill, Jacobs, and Straub) (Op. by Jacobs): In this case, the Court upheld the defendant’s conviction against a sufficiency challenge on two gun charges — one for possessing a gun in furtherance of drug trafficking (18 U.S.C. § 924(c)(1)(A)) and the other for possessing a gun with an obliterated serial number (18 U.S.C. § 922(k)). The Court also found that while the district court erred in refusing to disclose the defendant’s pretrial services report to the defendant for use at trial, the error was harmless.

The facts are simple. Government agents executed a search warrant on defendant’s apartment, and found him sitting on his bed. Under the bed was a loaded .357 magnum revolver. On a nearby dresser was a scale with white powder on it. Inside the dresser were 71 grams of crack and a …

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Wednesday, March 23rd, 2005

Court Considers Conditions of Supervised Relase Regulating Defendant’s Finances in Drug Case Where Neither a Fine nor Restitution Was Imposed

United States v. Brown, No. 04-3137-cr (March 22, 2005 )(McLaughlin, Sotomayor, C.J.J. and Cedarbaum, D.J., Op. by McLaughlin). Inthis opinion, the Court considered the imposition of special conditions of supervised release relating to the defendant’s finances where the defendant was not convicted of a financial crime, and where no fine or restitution was imposed. It upheld a condition requiring the defendant provide his probation officer with any requested financial information, but vacated one prohibiting him from incurring any new debts without the officer’s permission.

Facts: In November of 2003, Kenneth Brown pled guilty to distributing crack cocaine. His presentence report revealed that he had sustained drug-related convictions in 1995, 1997, 1998 and 2001. In addition, his employment history between 1996 and 2001 was “sparse, sporadic, and could not be verified.” Brown was sentenced in May of 2004 to 70 months’ imprisonment and five years of supervised release. The court …

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Court Upholds Long Delay Between Issuance of Supervised Release Violation Warrant and Its Adjudication

United States v. Angelo Ramos, No. 04-2004-cr (March 14, 2005)(Newman, Sack and Parker, op. by Sack). In this case, the Court of Appeals rejected a claim that a delay of several years between the time the defendant violated his supervised release by committing a new state crime and the time the violation was actually adjudicated either deprived the court of jurisdiction or amounted to a due process violation.

Facts

The relevant facts can be reduced to a simple timeline:

September 18, 1996: Defendant Angelo Ramos is sentenced in federal court to 36 months’ imprisonment and one year of supervised release.

May 1, 2000: Ramos begins his supervised release term.

November 24, 2000: Ramos is arrested and detained in an unrelated state case.

November 29, 2000: Ramos’ probation officer notifies the federal court of the arrest and seeks a warrant, but the court does not order one.

April 21, 2001: …

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Thursday, March 17th, 2005

“Prison Mailbox” Rule Applies to State Coram Nobis Petition for Tolling Purposes under § 2244(d)(1)

Fernandez v. Artuz, Docket No. 03-2541 (2d Cir. March 17, 2005) (Jacobs, Sotomayor, Hall) (Op. by Jacobs): In this interesting opinion, the Circuit ruled that the “prison mailbox rule”, which deems a document filed by a pro se prisoner “filed” as of the time the prisoner delivers it to prison authorities for mailing (rather than the time it is received by the court), can be applied to New York State coram nobis petitions for purposes of tolling § 2254’s 1-year statute of limitations. I will spare everyone the details of the case, which boil down to the fact if the prison mail box rule does not apply to petitioner’s coram nobis petition, his subsequent § 2254 petition would be untimely.

Although the Second Circuit has applied the prison mailbox rule in a variety of contexts, it had not done so to determine when a coram nobis petition was “properly …

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An Unappealed Conviction Becomes “Final” for § 2255 Purposes When the Time for Filing a Notice of Appeal Expires

Moshier v. United States, Docket Nos. 04-5784, 04-5983 (2d Cir. March 17, 2005) (Newman, Straub, and Wesley) (per curiam): The Second Circuit, joining the two other circuits that have decided this question, ruled that an unappealed criminal judgment becomes final for purposes of calculating the one-year limit for filing a § 2255 petition when the time for filing a direct appeal (i.e., 10 days after entry of judgment) expires. Because the petitioner’s original judgment of conviction was entered on April 29, 2002, and because he did not file a notice of appeal from that judgment, § 2255’s one-year clock began running as of May 9, 2002 (10 days after April 29, 2002). And because the § 2255 petition was not filed until April 1, 2004, it was untimely.…

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Wednesday, March 16th, 2005

Court finds that Speedy Trial Act Violation May be Harmless, United States v. Zedner, 04-0821-cr (2d Cir. April 28, 2005)

In March 1996, Jacob Zedner walked into several banks and attempted to negotiate bonds issued by “The Ministry of Finance of U.S.A.” from the “Onited States” and with an expiration date of “forevev.” The face value of the bonds was $40 million. Surprisingly, Mr. Zedner was never able to actaully negotiate the bonds. He was, however, able to negotiate some attention from the U.S. government, which found his efforts less than amusing. Indeed, the soundness and security of the United States financial system was preserved when Mr. Zedner was arrested by the U.S. Secret Service.

After 7 years of on-again/off-again institutionalization and conflicting competency evaluations, Mr. Zedner was found fit to stand trial whereupon he was convicted. At sentencing, Judge Platt rejected departure motions based on diminished capacity and overstated loss amount and sentenced him to 63 months in jail.

In a lengthy, fact-intensive opinion, the Court: (1) rejected Mr. …

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Circuit Approves Novel Use of Midtrial Superceding Indictment to Allege Missing Jurisdictional Element

United States v. Milstein, No. 01-1499 (March 10, 2005) (Van Graafeiland, Kearse, Wesley, Per Curiam). This case is chock full of interesting legal issues (including whether the defense of “laches” can be applied in a criminal trademark infringement case . . . it can’t), but we’ll try keep focused on the most salient aspects of the decision. First, the Court approved of the novel procedure employed by the District Court which permitted the government, midtrial, to amend an indictment that had failed to allege a necessary jurisdictional element. Second, the Court found a Fifth Amendment violation with respect to one of the counts of conviction based on what it concluded was a constructive amendment of the indictment. The Court therefore affirmed four counts of conviction, vacated the conviction on the count that was deemed constructively amended, and remanded for further proceedings on the vacated count (in the event sought …

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