Archive | concurrent sentence doctrine

Monday, July 12th, 2021

The Second Circuit holds that the concurrent sentence doctrine applies when a defendant collaterally challenges the legality of a conviction, under 28 U.S.C. § 2255, and declines to review the § 2255 appeal. Kassir v. United States, No. 19-1477, __F.3d__ (2d Cir. July 9, 2021) (C.J.J. Jacobs, Nardini).

The Circuit applies the “discretionary” concurrent sentence doctrine because the petitioner’s 2255 motion attacked only a single count of conviction, that resulted in a 20-year sentence that is concurrent to “two terms of life in prison” on counts unchallenged. The Circuit said it was exercising its discretion “to decline” to review Mr.  Kassir’s 2255 appeal (challenging the validity of a conviction) because “[e]ven  if  his challenge were successful, our decision would  not shorten the time Kassir must remain in custody because he remains subject to two concurrent life sentences[.]” Op. at 2-3.

The Circuit holds, however, that  if, in the future, the petitioner is able to challenge his two life sentences, he may renew his 2255 challenge to the concurrent 20-year sentence. Op at 25-27.

I. The Circuit avoids deciding (i) whether Dimaya and Davis established a new rule of constitutional law, retroactive to cases on collateral review; or

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Categories: 2255, concurrent sentence doctrine, Davis, Dimaya, habeas corpus, harmless error, Johnson

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