Federal Defenders of New York Second Circuit Blog

ineffective assistance of counsel

IAC claim rejected on direct appeal because lack of prejudice to defendant is “beyond doubt” and district court sufficiently explained its sentence given “the lesser specificity required for a [revocation] sentence”

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Not sure why United States v. Antonio Ortiz, 2d Cir. No. 22-1775-cr (April 30, 2024), is a published opinion rather than a summary order. Judge Menashi’s opinion for the panel (Calabresi, Menashi, Perez) rejects Ortiz’s challenge to his five-year sentence, imposed upon revocation of supervised release after the district court found that he raped his … Read more

Where a §2255 petition alleges that counsel failed to file a requested notice of appeal, the district court may not summarily dismiss but must undertake a factual inquiry.

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In United States v. Thomas, No. 22-2026 (February 21, 2024), the Circuit (Jacobs, Sack, and Nardini) reversed, in a per curiam opinion, the district court’s summary denial of a §2255 petition alleging that counsel failed to file a notice of appeal as petitioner requested. Thomas swore in his petition that he told his lawyer to … Read more

In this summary order, the Circuit vacates a district court judgment that summarily denied a 28 U.S.C. § 2255 motion, alleging that ineffective assistance counsel caused the petitioner to forego a direct appeal. Kenya Brown v. United States, No. 20-3404-pr (2d Cir. Dec. 6, 2022) (C.J.J.’s Livingston, Nardini, and Menashi) (“Summary Order”).

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Petitioner-Appellant Kenya Brown was sentenced on December 28, 2016. But no notice of appeal was filed. Brown had pleaded guilty, under a plea agreement, to conspiring to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846; and possessing a firearm in furtherance of that conspiracy, in violation of 18 U.S.C. § 924(c). … Read more

Circuit Affirms Convictions for Producing and Distributing Child Pornography

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United States v. DiTomasso, No. 17-1699 (2d Cir. July 30, 2019), involves a defendant who was convicted after a jury trial of producing and distributing child pornography. On appeal, he argued that the district court should have granted his motion to suppress certain electronic communications found through searches conducted by two Internet service providers (AOL … Read more

Supreme Court Roundup (including post-Dimaya GVRs)

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This week the Supreme Court issued a number of significant criminal opinions, as well as a number of GVRs signalling that the holding of Sessions v. Dimaya likely extends to § 924’s residual clause (18 U.S.C. § 924(c)(3)(B)). In McCoy v. Louisiana, 16-8255, the Court held that it was structural Sixth Amendment error for an attorney … Read more

Court rejects IAC claim because defendant cannot show that he would not have pleaded guilty absent counsel’s mis-advice about guidelines range

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Only one summary order from the Circuit today in the criminal realm: In United States v. Jeremy Viles, Docket No. 15-885-cr, the Court (Livingston, Carney, Stanceu), rejected the defendant’s claim that he should be allowed to withdraw his guilty plea based on then-counsel’s allegedly erroneous advice regarding the advisory Guidelines range he would face at … Read more

Second Circuit Updates – August 24, 2016 – Part 2

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I. A state court’s ruling denying collateral review of a “mixed claim” of  ineffective assistance of counsel (involving matters on the record and outside of the record),  on the procedural ground that the claim was not raised on direct appeal, was not “adequate” to bar federal habeas corpus review (28 U.S.C. § 2254). Pierotti v. … Read more

Second Circuit Updates – August 24, 2016 – Part 1

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The Circuit issued three Opinions today that are relevant to people litigating issues of criminal law.  Below is a brief description, which will be followed up with more discussion later. I. In Pierotti v. Walsh, No.15-1944-pr (Circuit Judges: Pooler, Livingston, and Lohier), the Circuit ruled in favor of a State prisoner. It holds that his … Read more

Second Circuit affirms above-guideline sentence; declines to consider one IAC claim on direct review, but rejects another where record below was sufficiently developed on the point

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In United States v. Pendergrass, 15-1965, the Second Circuit affirmed the conviction of Terrence Pendergrass, a former captain at Rikers Island, on one count of willfully violating the constitutional rights of an inmate, who died following the ingestion of cleaning supplies, by refusing to get him medical attention and prohibiting other guards from getting him … Read more