Archive | ineffective assistance of counsel

Thursday, April 7th, 2016

Second Circuit Updates – April 7, 2016

No decisions or orders out of the Second Circuit today. Two interesting notes:

  • An attorney in Albany received a public reprimand and a two-year ban from practicing as a CJA lawyer before the Second Circuit for “engaging in conduct unbecoming a member of the bar.” The attorney had failed to file documents in a timely manner on numerous occasions in at least 3 different cases, among other unprofessional conduct. The Second Circuit found two aggravating factors in making this finding. First, that the attorney had been privately reprimanded for the same sort of behavior previously and that the “misconduct occurred in criminal appeals, where important liberty interests are at stake.” Interestingly, the panel (Cabranes, Sack, and Wesley) made clear that the order “should not be perceived” as requiring reciprocal discipline in the district court, where the attorney can still practice. (See New York Law Journal article here.)
  • Yesterday a

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Categories: ineffective assistance of counsel, interstate commerce

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Sunday, June 17th, 2012

How Not To Hire An Investigator

Matthews v. United States, No. 10-0611-pr (2d Cir. June 14, 2012) (Kearse, Cabranes, Straub, CJJ)

Petitioner Michael Matthews was convicted of a 2006 bank robbery and received a life sentence under the federal “three strikes” statute, 18 U.S.C. § 3559(c). After exhausting his direct appeals, he filed a 2255 motion alleging, amongst other things, ineffectiveness of his trial counsel.

Matthew’s specific claim was that his counsel was ineffective because hired a private investigator, an ex-cop named Haumann, whom he knew had a conflict of interest. Matthews alleged that when Haumann was a police officer, he had arrested and “viciously assaulted” Matthews and had also treated him “with racial disdain and insensitivity.” Matthews backed this up with a newspaper article that confirmed the facts, except for the racial allegations. Nevertheless, the district court, adopting the government’s characterization of the claim as “general” “cursory” and “vague,” denied the petition without …

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Categories: conflict of interest, ineffective assistance of counsel, Uncategorized

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Saturday, October 30th, 2010

Deal Or No Deal?

United States v. Marks, No. 08-1207-cr (2d Cir. October 19, 2010) (Leval, Hall, Livingston, CJJ)

Defendant Chad Marks was convicted after a jury trial of drug trafficking offenses and two § 924(c) counts, and was sentenced to the resulting 40-year mandatory minimum. The trial came after months of plea negotiations, including an offer by the government to resolve the case with a 20-year sentence.

Before trial, Marks had filed a motion with the district court seeking to compel the government to follow up on a different plea offer that, apparently, was in the nature of a cooperation agreement. The court denied the motion and the case proceeded to trial.

But after trial, Marks’ counsel renewed that motion and, this time, the government’s opposition indicated that the government had extended a 20-year offer before trial. Before sentencing, Marks filed a pro se habeas corpus petition under 18 U.S.C. § 2241 claiming …

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Categories: ineffective assistance of counsel, Rule 33, Uncategorized

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Saturday, April 10th, 2010

An Appeal To Reason

Ramchair v. Conway, No. 08-2004-pr (2d Cir. April 2, 2010)(Winter, Calabresi, Sack, CJJ)

It seems as if most Second Circuit habeas decisions deal only with the procedural hurdles faced by state prisoners. So it is indeed remarkable that the court has decided two cases less than one week apart in which it got through the procedural thicket and actually resolved the substantive issue presented in the case. This decision, in which the court agrees that the petitioner’s state court appellate counsel was constitutionally ineffective, is accordingly blog-worthy.

The case has a long history. Ramchair was charged with a 1995 robbery after he was identified in a fairly suspect lineup, at which his counsel was present. He moved to suppress the identification and, after a hearing, the trial court denied the motion. He then had two trials that ended in mistrials, but at which the issue of counsel’s presence at the …

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Categories: ineffective assistance of counsel, Uncategorized

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Saturday, March 14th, 2009

Global Warming

United States v. Yauri, No. 08-1105-cr (2d Cir. March 12, 2009)(Sack, Wesley, CJJ, Kahn, DJ) (per curiam)

In Yauri’s money laundering plea agreement, the government agreed to a two-level reduction for a “global disposition” and to a loss amount of “more than $30,000.” His presentence report, however, recommended guidelines calculation based on a loss of more than $154,000 and omitted the global disposition reduction. At sentencing, his counsel, who had not attended the plea hearing, did not object to the omission of the global reduction, and agreed that the loss amount in the presentence report was correct, despite the language in the plea agreement and the fact that Yauri had not allocuted to a specific loss amount.

On appeal, he argued that his counsel was ineffective, and the government agreed, but only with respect to the failure to call the court’s attention to the global disposition reduction. The court agreed, …

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Sunday, June 15th, 2008

Out of Hindsight

Parisi v. United States, No. 06-1148-pr (2d Cir. June 13, 2008) (Winter, Hall, CJJ, Oberdorfer, DJ)

In this 2255 appeal, the defendant unsuccessfully argued that his counsel was constitutionally ineffective for failing to move for dismissal based on a Speedy Trial Act violation.


In 2001, Parisi was charged, in a complaint, with child pornography-related offenses. Although, under the Speedy Trial Act, the government had thirty days within which to indict him, the indictment was not filed until nearly 200 days later. During that period, counsel executed three “stipulations” seeking sixty-day continuances for plea negotiations. Each stipulation agreed that the ends of justice to be served by the delay would outweigh defendant’s and the public’s right to a speedy trial. The district court “so ordered” each stipulation.

In 2003, Parisi pled guilty under a plea agreement that included an appellate waiver, and received a 150-month sentence. He later filed a …

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Categories: ineffective assistance of counsel, speedy trial, Uncategorized

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