Author Archive | Yuanchung Lee

Thursday, March 17th, 2005

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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Tuesday, March 15th, 2005

Circuit Again Vacates Grant of Habeas by Judge Weinstein

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 …

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Monday, March 7th, 2005

The “Prior Conviction” Exception to the Apprendi Rule Takes a Very Large Step toward Its Impending Demise

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 …

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District Court Retains Inherent Authority to Interpret Ambiguities in Its Own Orders, Regardless of Rule 35 / 36 Constraints

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 …

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Wednesday, February 16th, 2005

Get Yer Crosby Remands Here! Get Yer Crosby Remands Here … !

Readers should rest assured that we continue to monitor the Second Circuit each day for new criminal and habeas (and sometimes immigration) decisions. There have been no new posts on this Blog simply because the Court has not issued any published decisions in these areas in the last week and a half.

On the Booker / Crosby front, the only news to report is that the U.S. Attorney’s Offices for both the Southern and Eastern Districts of New York are complying with Crosby for cases pending on appeal and are consenting to motions for a remand, consistent with Crosby, in all cases on direct appeal in which the sole issue raised concerns Blakely / Booker. The only exception to this policy, apparently, are cases involving plea agreements with appellate waivers. The Government intends to argue that those waivers, even if entered into before Blakely, are enforceable against …

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Sunday, February 6th, 2005

Circuit Upholds Pre-Blakely Appeal Waiver in Unpublished Opinion

United States v. Fleischer, No. 04-3911 (2d Cir. Feb. 3, 2005) (UNPUBLISHED SUMMARY ORDER): In a little noticed unpublished summary order, a panel of the Circuit upheld an appeal waiver, contained in a plea agreement entered before the Supreme Court’s Blakely decision, and dismissed an appeal in which the defendant challenged his Guidelines-imposed sentence. In resolving this complicated question, the panel simply pointed to the Court’s earlier decision in United States v. Morgan, 386 F.3d 376 (2d Cir. 2004), as dispositive: Appellant’s argument that “the waiver provision in his plea agreement is inoperative because it was entered before the Supreme Court clarified the Sixth Amendment’s application” in Blakely and Booker “is clearly foreclosed by our recent decision in United States v. Morgan.” (Summary Order at 3).

Morgan, of course, says no such thing. Rather, Morgan involved an appeal raising a typical Apprendi challenge (to a sentence …

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Friday, February 4th, 2005

Second Circuit Issues Blanket Order Permitting Remand in All Cases in which the Mandate Was Withheld Pending Booker

Just moments ago, the Second Circuit issued a blanket order addressing all previously decided criminal cases in which the mandate had been withheld pending the Supreme Court’s decision in Booker, pursuant to Chief Judge Walker’s August 6, 2004, order. Please see the Circuit’s website for this blanket order (www.ca2.uscourts.gov).

As expected in light of Crosby (see below), the Court is permitting all appellants in those cases (listed in an Appendix attached to the court’s blanket order) to have their cases remanded back to the district court for a determination of whether a resentencing is warranted. Any appellant desiring such a remand must simply complete a very basic form, attached to the Court’s order, and return it to the Court (either by FAX or by mail). If an appellant does not wish to have his/her case remanded, s/he need do nothing.

No precise deadline is given for when …

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Appeal of a Magistrate Judge’s Detention Order Must Be Made to the District Court, Not to the Appellate Court

United States v. Harrison, Docket No. 04-4725 (2d Cir. Feb. 3, 2005) (per curiam). Not much more to add — the title to this post says it all. Quite a mystery as to why the defendant did not simply appeal the magistrate’s detention order to the district court, rather than directly to the Second Circuit, given that the law is (and has long been) so clear on this issue …

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The Little Case that Could — U.S. v. Fleming

Some additional comments regarding Fleming (No. 04-1817-cr) to supplement David’s excellent post below on the “Booker Trilogy” issued by the 2d Circuit on February 2nd.

Though Crosby is clearly the Big Daddy of the bunch, Fleming must not be overlooked because it answers two critical questions left somewhat unanswered in Crosby — (1) what does it mean that judges have to “consider” the Guidelines range in imposing sentence, post-Booker? and (2) what does “reasonableness” mean on appellate review? Fleming (also by Judge Newman, and argued two days after Booker was decided — the same day as Crosby) is, essentially, the first appeal of a postBooker sentencing. This is because it involved the appeal of a sentence imposed upon revocation of supervised release, and the sentencing phase of a revocation proceeding, even in the pre-Booker world, was basically the same as a sentencing phase …

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Monday, January 31st, 2005

Circuit Vacates Grant of Habeas Based on Prosecution’s Use of Incriminating Statement Obtained during Un-Mirandized Pedigree Questioning of Defendant

Jose Rosa v. Frank McCray, Docket No. 04-2188 (2d Cir. Jan. 27, 2005) (Miner, Cabranes, and Straub) (Op. by Miner) (Dissent Op. by Straub)

Facts: On September 5, 1997, the victim (“V”) was robbed at gunpoint by two men. V subsequently went to the police and described one of the robbers — the one carrying the gun –as having “brown hair, with the ends slightly lighter.”

The following day, V saw petitioner Rosa standing on the sidewalk. Though Rosa’s hair appeared to be blonde, V identified him as the man who robbed her at gunpoint. V called the police, who promptly arrested Rosa.

At the police station, the same detective who had interviewed V the previous day asked Rosa a series pedigree questions while completing the on-line booking form. These questions were not preceded by Miranda warnings. “As to Rosa’s hair color, [the detective] — noticing that Rosa’s …

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Creating Perverse Incentives for Lackluster Advocacy in the New York Court of Appeals? The Second Circuit’s Exhaustion Jurisprudence, Cont’d.

(By guest blogger Darrell Fields, Associate Counsel, Appeals Bureau of the Federal Defender Division):

In Galdamez v. Keane, No. 03-2595, 2005 WL 15136 (2d Cir. Jan. 4, 2005) (Op. by Sotomayor), the Second Circuit held that a New York prisoner seeking habeas corpus relief (28 U.S.C. § 2254) had exhausted all of the claims he had raised in his Appellate Division briefs simply by asking the New York Court of Appeals for leave to appeal and then sending his Appellate Division briefs to that Court. His lawyer accomplished this by sending two cryptic letters to New York’s highest court. The lawyer’s first letter noted that he was enclosing a copy of the Appellate Division decision affirming Galdamez’s conviction and stated that “appellant hereby requests leave to appeal to this Court.” The second letter merely stated that he was enclosing “the briefs submitted to the Appellate Division together with the …

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