Archive | certiorari

Friday, January 11th, 2019

Cert. Grant in Davis

The Supreme Court recently granted a certiorari petition in Davis v. United States that presents the following questions:

(1) Whether 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague;

(2) whether Hobbs Act robbery is a “crime of violence” as defined by 18 U.S.C. § 924(c)(3); and

(3) whether a prior Texas conviction for burglary is a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

Practitioners should take care to preserve challenges to § 924(c)(3)’s residual clause notwithstanding the Second Circuit’s holding in Barrett, and to preserve arguments that offenses such as Hobbs Act robbery (and conspiracy to commit that offense) are not crimes of violence under  § 924(c)(3). (Note that, as of the date of this post, the mandate has not issued in Barrett.)…

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Categories: 924(c), ACCA, categorical approach, certiorari, conspiracy, crime of violence, Hobbs Act, Johnson

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Friday, October 6th, 2017

Recent Cert. Grants

The Supreme Court granted certiorari on a number of criminal cases in orders from its September 25 conference. The details are below, courtesy of Sentencing Resource Counsel:

City of Hays, Kansas v. Vogt, No. 16-1495
Question Presented: Whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.

Cert papers and opinion below available here:

Collins v. Virginia, No. 16-1027
Question Presented: Whether the Fourth Amendment’s automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Cert papers and opinion below available here:

Byrd v. United States, No. 16-1371
Question Presented: Does a driver have a reasonable expectation of privacy in a rental car when he has the renter’s permission to drive the car but is …

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Categories: certiorari, due process, Fifth Amendment, Fourth Amendment, plain error, probable cause

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Sunday, July 27th, 2008


Nnebe v. United States, No. 05-5713-pr (2d Cir. July 21, 2008)
Pena v. United States, No. 06-0218-pr (2d Cir. July 21, 2008)

This month, the court re-issued decisions in two cases decided in June – one of which the court subsequently withdrew [see prior posts “Role of Certs” and “Withdrawal Symptoms”] – dealing with counsel’s obligation to file a petition for a writ of certiorari.

In Nnebe, an appeal of the denial of a 2255 motion, all parties agreed that appointed counsel violated the court’s CJA plan by failing to seek certiorari despite his client’s request that he do so. At issue here was the appropriate remedy. The government argued that 2255 relief was unavailable, and that this should end the case. Nnebe argued instead that the court should construe the petition as one to recall the mandate and vacate its judgment. The court agreed to do so. Although this …

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Categories: certiorari, Uncategorized

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Sunday, June 15th, 2008

Role of Certs

This pair of decisions, both arising from 2255 motions, gives helpful guidance on counsel’s obligations to file a petition for a writ of certiorari.

In Pena v. United States, No. 06-0218-pr (2d Cir. June 12, 2008) (Jacobs, Parker, Wesley, CJJ)(per curiam), the court held that a retained attorney was not ineffective for failing to advise his client of the right to seek certiorari. While the Sixth Amendment right to counsel covers a first-tier appeal, there is no constitutional right to counsel beyond that. Seeking certiorari is the first step in the non-Sixth Amendment discretionary appeal, and not the last step in the first-tier appeal. Accordingly, Pena’s counsel was not ineffective in failing to inform him of his right to seek certiorari.

The court noted that the Criminal Justice Act imposes greater obligations on appointed counsel. But since Pena’s counsel was retained, that statute did not apply. That said, the court …

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Categories: certiorari, Sixth Amendment, Uncategorized

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