Author Archive | Yuanchung Lee

Abdul-Malik v. Hawk-Sawyer, Docket No. 04-3877-pr (2d Cir. April 5, 2005) (Jacobs, Calabresi, Rakoff, D.J.) (Op. by Jacobs): As anyone who has ever had a client serving both a federal and a state term of imprisonment knows, federal law concerning how to account for concurrency between (or, god forbid, among …) these sentences is a complicated and irrational mess. In this decision, the Circuit confronts this shameful area of law and calls out to Congress to clean up the mess it created. While affirming the district court’s order dismissing the petitioner’s § 2241 petition — which challenged the Bureau of Prison’s refusal to designate his state prison facility as the place for service of his federal sentence under 18 U.S.C. § 3621(b) — the Court concludes by directing the Clerk of Court to transmit a copy of the opinion to the “Chairs and Ranking Members of the House and …

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 …

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 …

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 …

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 …

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 …

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 …

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.…

Eisemann v. Herbert, Docket No. 03-2582 (2d Cir. March 11, 2005) (Newman, Sack, and B.D. Parker) (Op. by Newman): Within the span of 3 days, the Second Circuit has twice reversed Judge Weinstein’s decision to grant § 2254 petitions brought by state prisoners in two separate cases. The other case, Benn v. Greiner, Docket No. 04-0527 (2d Cir. March 9, 2005), will soon be analyzed on this Blog.

Eisemann deserves a look for this introductory sentence alone: “Demonstrating that truth is often far stranger than fiction, this case involves a father and a son who sodomized the same victim, a trial lawyer who represented both the father and the son, and the disbarment for fraud convictions of both the trial lawyer and the son’s state court appellate lawyer.” Fortunately, the sole issue on appeal concerned whether trial counsel suffered from an actual conflict of interest that adversely …

Shepard v. United States, No. 03-9168 (U.S. March 7, 2005): In a much anticipated case finally decided today, the Supreme Court (by Justice Souter for a 5-justice majority) ruled that in determining whether a prior conviction qualified as a predicate felony for the Armed Career Criminal Act, 18 U.S.C. § 924(e), when the statute of conviction is sufficiently broad to include both qualifying and non-qualifying offenses, a sentencing court “is generally limited to examining the statutory definition [of the prior offense of conviction], charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Although the holding of the case is important in itself, it is the decision’s uncertain ramification for the continuing viability of the “prior conviction” exception to the Apprendi rule that has generated the most interest.

In Shepard, the Government attempted to rely …

United States v. Silvio Spallone, Docket No. 03-1791 (2d Cir. March 4, 2005) (Sack, Raggi, and Hall) (Op. by Raggi): In this case, the Second Circuit clarifies that a district court retains the power to interpret ambiguities in its own sentencing orders, even outside the temporal and other limits set for correction of sentences found in Rules 35 & 36 of the Federal Rules of Criminal Procedure.

Here, the defendant pled guilty to tax evasion and was originally sentenced to 30 months’ imprisonment, 3 years’ supervised release, and $2.45 million in restitution. Following a Rule 35(b) motion by the Government (in exchange for the defendant’s cooperation while in prison), the district court entered an order stating that “the defendant [] be sentenced to time served.” The defendant was promptly released.

After his release, the defendant claimed that neither the supervised release nor the restitution portions of his sentence were …