Author Archive | Yuanchung Lee

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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A Foley Square “Time Warp”? A Post-Booker Guidelines Decision.

United States v. Sash, No. 04-0499 (2d Cir. Jan. 26, 2005) (Walker, Miner, and Cabranes) (Op. by Miner).

In this opinion, issued two weeks after the Supreme Court’s decision in Booker (see entry below), the Second Circuit engages in a detailed analysis of Section 2B1.1(b)(9)(C)(ii) of the Guidelines, which calls for a 2-level enhancement when the offense “involved . . . the possession of 5 or more means of identification that unlawfully were produced from, or obtained by the use of, another means of identification.” The Court rejected the defendant’s argument that his conduct — replicating police badges for police officers — did not trigger the enhancement because it did not involve true identify theft, holding that the plain language of the Guideline controlled.

What’s interesting about the opinion is not what it discusses, but what it doesn’t discuss — namely, Booker (or even Blakely). The original sentencing …

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Dismissal of § 2254 Petitioner’s First Habeas Petition by Reason of Tardiness Renders Future Petitions “Second or Successive” under § 2244(b)

Murray v. Greiner and Arce v. Fischer, Nos. 01-3833, 02-3574 (2d Cir. Jan. 5, 2005) (Leval & Cabranes, and Garaufis, D.J.) (Op. by Leval) :



This decision simply extends Villanueva v. United States, 346 F.3d 55 (2d Cir. 2003), holding that dismissal of a § 2255 petition on grounds of untimliness under § 2244(d) (establishing 1-year period to file such a petition) renders subsequent petitions “second or successive” within the meaning of § 2244(b) (and thus subject to its nearly impossible to satisfy gatekeeping requirements), to § 2254 petitions filed by state prisoners. The reasoning is that (1) the dismissal of a habeas petition will render subsequent petitions “second or successive” if the petition was “adjudicated on the merits”; (2) dismissal of a prior petition on grounds that presented a “permanent and incurable” bar to federal review qualifies as an adjudication on the merits; and (3) dismissal of …

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Tuesday, January 25th, 2005

Second Circuit Rejects Connecticut’s Effort to Vacate Stay of Execution

Michael B. Ross, by next friend Gerard A. Smyth, v. Theresa Lantz, No. 05-8900 (2d Cir. Jan. 25, 2005) (Sack, Katzmann, and Hall) (per curiam)



FACTS: Michael Ross, convicted of murder in Connecticut, was scheduled to be executed on Wednesday, January 26, 2005, at 2 a.m. Ross (a so-called death penalty “volunteer”) has declined to challenge his death sentence, but lawyers from the state public defender’s office filed a habeas petition pursuant to 28 U.S.C. § 2254 on his behalf as “next friend.” The public defender’s office contends that Ross is not mentally competent to surrender his post-conviction rights. It presented testimony to Chief Judge Chatigny (of the District of Connecticut) from a psychiatrist indicating that Ross may not have been competent when he decided to forgo further challenges to his conviction and sentence due to years of seclusion on death row.

Yesterday, January 24th, Chief Judge …

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Second Circuit Finally Puts an End to Judge Kram’s Practice of Conducting Pleas and Sentencings in Her Robing Room

United States v. Carlos Goiry and Luz Marina Munoz, Nos. 02-1010, 03-1061 (2d Cir. Jan. 24, 2005) (No. 02-1010: Walker, Cardamone, and Straub) (No. 03-1061: Winter, Straub, and Lay) (Opinion by Straub).

FACTS: In two cases consolidated on appeal, the defendants-appellants both entered guilty pleas and were sentenced by Judge Shirley Kram of the Southern District of New York. Judge Kram conducted the guilty plea proceeding (in one case) and the sentencing (in the other case) in her robing room, located just off her courtroom. As anyone who has practiced before Judge Kram knows, this is her standard practice.

Judge Kram did not make any findings to justify her actions, nor did she notify the public that she intended to close these proceedings. None of the parties objected to Judge Kram’s decision to conduct the proceedings in her robing room.

HELD: Conducting plea and sentencing proceedings in the …

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Monday, January 17th, 2005

United States v. Booker, No. 04-104 (U.S. Sup. Ct. Jan. 12, 2005): A Day-After Analysis

I. The Holding:

1. Stevens for a 5-justice majority: The rule of Apprendi and Blakely – that the maximum sentence a judge may impose is the maximum sentence authorized on the basis of facts reflected in the jury verdict or admitted by the defendant – applies to the Sentencing Guidelines.

A. That is, Booker holds that the top of the Guideline range, as determined solely by facts found by the jury or admitted by the defendant at a guilty plea, constitutes the “statutory maximum” for Apprendi-Blakely purposes.

B. Thus, a judge may not impose a sentence higher than the top of this range based on facts that s/he alone has found.

2. Breyer for an entirely different 5-justice majority: The remedy for the Blakely violation in Booker’s case is simply to strike / excise two statutory provisions – 18 U.S.C. § 3553(b) and 18 U.S.C. § 3742(e). All else allegedly …

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