Author Archive | Kendra Hutchinson

At long last, the Supreme Court last week issued its eagerly-anticipated decision in United States v. Rahimi, involving a post-Bruen Second Amendment challenge to 18 U.S.C. § 922(g)(8), which criminalizes possession of a firearm while one is subject to a domestic violence restraining order. Unsurprisingly to anyone who listened to the oral argument, the Court, in a majority opinion authored by Chief Justice Roberts, voted 8-1 to uphold the criminal ban.

Justice Thomas dissented. Justice Sotomayor issued a concurring opinion, joined by Justice Kagan. And Justices Gorsuch, Kavanaugh, Barrett, and Jackson each penned separate concurrences. So there’s lots to review in the 100+ page opinion, more than can be done in this blog post. However, the top-level takeaways from the (relatively brief) majority opinion are as follows:

Clarification of the Bruen test: “relevantly similar” wins the day. Over the last two years, many lawyers (and judges) have …

In United States v. Chaires, No. 20-4162 (2d Cir. Dec. 7, 2023) (per curiam), the Second Circuit (Carney, Sullivan, and Menashi) remanded for resentencing, on plain error review, where the defendant was sentenced as a career offender based on New York controlled substance predicates. As our dear readers are well-aware, Chaires follows in the footsteps of several important Second Circuit cases holding that state drug crimes are categorically overbroad – and cannot be used to enhance a sentence – because they punish possession of more substances than the federal Controlled Substance Act (CSA). To recap:

• United States v. Townsend, 897 F.3d 66 (2d Cir. 2018). In this leading case, in addition to holding that the categorical approach applies to the controlled-substance-offense determination, the Court ruled that, because N.Y.P.L. 220.31 punishes possession of human chorionic gonadotropin, but the CSA does not, it cannot serve as a predicate for offense-level-enhancement

In United States v. Graham, No. 20-832 (2d Cir. Oct. 14. 2022) (Park, joined by Walker; Pérez concurring separately in the judgment), the defendant was convicted after trial of conspiracy to commit mail, wire, and bank fraud. On appeal, she argued, inter alia, that her lawyer rendered ineffective assistance of counsel per Missouri v. Frye by failing to timely convey a pre-trial plea offer.

The facts as to counsel’s inaction were not in dispute. The government argued, in response, that the defendant needed to raise her claim in a Section 2255 motion, and had not established prejudice.

The appeal proceeded to oral argument where, it turns out, the Court had some questions about something else: waiver. More specifically, whether Graham had waived her ineffectiveness claim. Supplemental briefing was ordered.

Ultimately, the majority affirmed the conviction on the ground of . . . you guessed it . . . …

The 2010 New York trial at issue in McCray v. Capra, 18-2336 (2d Cir. Aug. 17, 2022), an appeal of a state habeas corpus denial, was a pure credibility contest: the complainant testified she was violently raped; McCray testified the encounter was consensual but the two struggled afterward when she tried to steal from him; and both parties had injuries.

Prior to trial, however, and as often occurs in New York, after the prosecution disclosed the complainant’s psychiatric history, the trial judge examined her mental health records in camera for Brady material. Although there were over 5,000 pages of records, the judge only turned over 28 pages to the defense. McCray’s ensuing first-degree rape conviction was affirmed in the Appellate Division and New York Court of Appeals, both of which were closely-divided on the Brady non-disclosure issue he raised.

On appeal of the denial of McCray’s N.D.N.Y. habeas…