In Mata v. United States, 2d Cir. No. 20-1875, a panel of the Court (Park, Nardini, and Menashi) held in a per curiam opinion that federal prisoners cannot rely on the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct 2191 (2019), to challenge their underlying conviction or sentence in a second or successive § 2255 motion. This is so because while § 2255(h)(2) requires that a successive motion be based on (among other things) “a new rule of constitutional law,” Rehaif’s holding – that 18 U.S.C. § 922(g) requires proof that the defendant knew that s/he fell within a relevant class barred from possessing a gun – was a matter of statutory interpretation and not based on the Constitution.…
In Nelson Vargas v. United States, No. 16-2112, the Second Circuit granted a motion for leave to file a second or successive Johnson-based 2255 petition challenging a 480- month pre-Booker career offender sentence. The Court wrote:
“Although the Supreme Court held in Beckles v. United States that ‘[b]ecause they merely guide the district courts’ discretion, the Guidelines are not amenable to a vagueness challenge, ‘ 137 S.Ct. 886, 894 (2017), Beckles did not clearly foreclose the argument that this reasoning is inapplicable to the Petitioner’s circumstances, given that his sentence was imposed prior to United States v. Booker, 543 U.S. 220 (2005), which rendered the previously mandatory Guidelines discretionary.”
NB: The Federal Defenders represents Mr. Vargas.
Today the Circuit amended its decision in Blow v. United States, No. 16-1530 (Katzmann, chief judge; Wesley and Hall, circuit judges). It added a single line at the end of the opinion to say that the district judge has discretion to proceed on Blow’s 2255 petition and is not required to hold the petition in abeyance until the Supreme Court decides Beckles v. United States, No. 15-8544, 2016 WL 1029080 (U.S. June 27, 2016).
The Circuit’s initial opinion was filed about two weeks ago, on July 14, 2016. It granted Blow’s motion to file a Second or Successive 2255 petition. But it “instructed” the district court to “hold Blow’s §2255 motion in abeyance pending the outcome of Beckles.”
In Beckles, the Supreme Court granted certiorari to decide whether Johnson v. United States, 135 S.Ct. 2551 (2015) — which declared that the “residual clause” of the …
Today’s published decision, JAVEL TAYLOR v. UNITED STATES No. 15-827 (Opinion of May 13, 2016)(Katzmann, Chief Judge, Cabranes, Circuit Judge, and Kaplan, District Judge), is addressed to how appointed appellate counsel should advise clients about seeking rehearing and rehearing en banc from an adverse decision in their case. Addressing an issue of first impression for this Circuit, the Court holds that, under the Criminal Justice Act (“CJA”), 18 U.S.C. §3006A, indigent defendants have the right to the assistance of counsel in filing petitions for rehearing and for rehearing en banc with the Circuit. And this right triggers a set of obligations for CJA counsel on appeal.
The case arises from a pro se petition, under 28 U.S.C.§2255, where Javel Taylor alleged that he did not learn of the Circuit’s decision affirming his conviction and (84-month) sentence, until one month after the decision, and was thereby denied …
No published opinions today, only two summary orders: a direct appeal and a collateral (§2255) challenge.
UNITED STATES v. JAMES PASS, No. 15-1446-CR (Summary Order of April 15, 2016)(Kearse, Cabranes, and Chin). This summary affirmance is interesting for the Circuit’s criticisms of how the judge conducted this sentencing in the E.D.N.Y.
Defendant Pass claims three categories of errors occurred at his E.D.N.Y. sentencing. He claims the district court (1) committed several procedural errors; (2) erroneously allowed him to proceed pro se; and (3) abused its discretion in refusing to adjourn the sentencing. Although the Circuit affirmed the top-of-the-range 71-month sentence (for a felon-in-possession conviction), it expressed concern about the judge’s handling of the sentencing.
- Procedural reasonableness of the sentencing. The defendant claims that the judge failed a) to calculate the Guidelines range; b) to rule on objections to the presentence report; c) to consider the statutory sentencing
United States v. Pitcher, No. 05-3182-pr (2d Cir. March 11, 2009) (Wesley, Hall, CJJ, Oberdorder, DJ) (per curiam)
In 1999, Pitcher went to trial on a heroin distribution charge. He was convicted, sentenced to 121 months’ imprisonment, and appealed. In a 2001 summary order, the court of appeals rejected his claim that his counsel had been ineffective for counseling him to reject the government’s efforts to sign him up as a cooperator, and affirmed. The court held that any deficiency in counsel’s advice was attributable to Pitcher’s own dishonesty in dealing with his attorney.
In 2004, Pitcher filed a § 2255 motion arguing that he would have received a much shorter sentence had his counsel not misinformed him about the risks of going to trial and the benefits of cooperating. After an evidentiary hearing, the district court granted the motion, vacated the sentence and resentenced Pitcher to time served. The …
United States v. Becker, Docket No. 06-1274-cr (2d Cir. September 13, 2007) (Calabresi, Parker, Wesley, CJJ)
At Becker’s stock fraud trial, the government introduced into evidence the plea allocutions of eleven (yes, eleven) of his co-defendants, supposedly for the “limited purpose” of establishing that the conspiracy charged in the indictment existed. The Circuit concluded that this was a Confrontation Clause violation under Crawford and, for the first time, found that such a violation was not harmless.
The court rejected the government’s claim that the district court’s limiting instructions cured the error, finding that the sheer number of allocutions and their repetitive nature suggested that the conspiracy was widespread, “making it plausible for the jury to assume that Becker was a participant simply by association with” the other conspirators, despite the instructions. In addition, the content of the allocutions was “far reaching and detailed” and significantly undermined Becker’s defense that his …
Categories: 2255, Confrontation Clause, Crawford, harmless error, law of the case, plea allocution, Sixth Amendment, Teague, Uncategorized