Author Archive | Yuanchung Lee

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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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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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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