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Thursday, March 17th, 2005

“Prison Mailbox” Rule Applies to State Coram Nobis Petition for Tolling Purposes under § 2244(d)(1)

Fernandez v. Artuz, Docket No. 03-2541 (2d Cir. March 17, 2005) (Jacobs, Sotomayor, Hall) (Op. by Jacobs): In this interesting opinion, the Circuit ruled that the “prison mailbox rule”, which deems a document filed by a pro se prisoner “filed” as of the time the prisoner delivers it to prison authorities for mailing (rather than the time it is received by the court), can be applied to New York State coram nobis petitions for purposes of tolling § 2254’s 1-year statute of limitations. I will spare everyone the details of the case, which boil down to the fact if the prison mail box rule does not apply to petitioner’s coram nobis petition, his subsequent § 2254 petition would be untimely.

Although the Second Circuit has applied the prison mailbox rule in a variety of contexts, it had not done so to determine when a coram nobis petition was “properly …

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An Unappealed Conviction Becomes “Final” for § 2255 Purposes When the Time for Filing a Notice of Appeal Expires

Moshier v. United States, Docket Nos. 04-5784, 04-5983 (2d Cir. March 17, 2005) (Newman, Straub, and Wesley) (per curiam): The Second Circuit, joining the two other circuits that have decided this question, ruled that an unappealed criminal judgment becomes final for purposes of calculating the one-year limit for filing a § 2255 petition when the time for filing a direct appeal (i.e., 10 days after entry of judgment) expires. Because the petitioner’s original judgment of conviction was entered on April 29, 2002, and because he did not file a notice of appeal from that judgment, § 2255’s one-year clock began running as of May 9, 2002 (10 days after April 29, 2002). And because the § 2255 petition was not filed until April 1, 2004, it was untimely.…

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Wednesday, March 16th, 2005

Court finds that Speedy Trial Act Violation May be Harmless, United States v. Zedner, 04-0821-cr (2d Cir. April 28, 2005)

In March 1996, Jacob Zedner walked into several banks and attempted to negotiate bonds issued by “The Ministry of Finance of U.S.A.” from the “Onited States” and with an expiration date of “forevev.” The face value of the bonds was $40 million. Surprisingly, Mr. Zedner was never able to actaully negotiate the bonds. He was, however, able to negotiate some attention from the U.S. government, which found his efforts less than amusing. Indeed, the soundness and security of the United States financial system was preserved when Mr. Zedner was arrested by the U.S. Secret Service.

After 7 years of on-again/off-again institutionalization and conflicting competency evaluations, Mr. Zedner was found fit to stand trial whereupon he was convicted. At sentencing, Judge Platt rejected departure motions based on diminished capacity and overstated loss amount and sentenced him to 63 months in jail.

In a lengthy, fact-intensive opinion, the Court: (1) rejected Mr. …

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Circuit Approves Novel Use of Midtrial Superceding Indictment to Allege Missing Jurisdictional Element

United States v. Milstein, No. 01-1499 (March 10, 2005) (Van Graafeiland, Kearse, Wesley, Per Curiam). This case is chock full of interesting legal issues (including whether the defense of “laches” can be applied in a criminal trademark infringement case . . . it can’t), but we’ll try keep focused on the most salient aspects of the decision. First, the Court approved of the novel procedure employed by the District Court which permitted the government, midtrial, to amend an indictment that had failed to allege a necessary jurisdictional element. Second, the Court found a Fifth Amendment violation with respect to one of the counts of conviction based on what it concluded was a constructive amendment of the indictment. The Court therefore affirmed four counts of conviction, vacated the conviction on the count that was deemed constructively amended, and remanded for further proceedings on the vacated count (in the event sought …

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Tuesday, March 15th, 2005

Circuit Again Vacates Grant of Habeas by Judge Weinstein

Eisemann v. Herbert, Docket No. 03-2582 (2d Cir. March 11, 2005) (Newman, Sack, and B.D. Parker) (Op. by Newman): Within the span of 3 days, the Second Circuit has twice reversed Judge Weinstein’s decision to grant § 2254 petitions brought by state prisoners in two separate cases. The other case, Benn v. Greiner, Docket No. 04-0527 (2d Cir. March 9, 2005), will soon be analyzed on this Blog.

Eisemann deserves a look for this introductory sentence alone: “Demonstrating that truth is often far stranger than fiction, this case involves a father and a son who sodomized the same victim, a trial lawyer who represented both the father and the son, and the disbarment for fraud convictions of both the trial lawyer and the son’s state court appellate lawyer.” Fortunately, the sole issue on appeal concerned whether trial counsel suffered from an actual conflict of interest that adversely …

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Tuesday, March 8th, 2005

Circuit Again Upholds Terms of Proffer Agreement, Reading Waiver Language Broadly

United States v. Barrow, No. 03-1074 (March 2, 2005)(Sack, Raggi and Hall, Op. by Raggi). In this case, the Court upheld the district court’s conclusion that the defense had opened the door to the government’ s use of statements that the defendant made at proffer sessions, even though the proffer statements did not directly contradict counsel’s assertions at trial.

Facts: Defendant Calvin Johnson was charged with selling crack cocaine either to an informant or an undercover officer on various dates in 2001. Shortly after his arrest, he made the decision to try to cooperate, and attended three debriefings with the government during the first half of 2002. At each proffer session, he executed a proffer agreement that provided that the prosecutors could use the statements that Mr. Johnson made “as substantive evidence to rebut any evidence offered or elicited, or factual assertions made, by or on behalf of …

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District Judge Holds That A New York “Y.O” Adjudication Is Not an ACCA Predicate

United States v. Fernandez, No. 04 Cr. 539 (RPP)(S.D.N.Y. January 31, 2005)(Judge Patterson)

In an important ruling for defendants who face a 15-year mandatory minimum under the Armed Career Criminal Act (generally known as “A.C.C.A,” and set out in 18 U.S.C. § 924(e)), Judge Patterson recently held that a New York State youthful offender adjudication (a “Y.O.”) does not serve as a predicate conviction under this sentence enhancement statute.

Facts

Clint Fernandez, who pled guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)), had the following relevant prior convictions. A 1993 conviction for second-degree robbery, for which he received a Y.O., a 1995 state drug conviction for a Class C felony, and a 1998 state attempted robbery conviction. It was indisputed that the 1995 and 1998 convictions were A.C.C.A. predictates. The only question was whether the 1993 Y.O. was, as well.

The Judge’s Ruling

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Monday, March 7th, 2005

The “Prior Conviction” Exception to the Apprendi Rule Takes a Very Large Step toward Its Impending Demise

Shepard v. United States, No. 03-9168 (U.S. March 7, 2005): In a much anticipated case finally decided today, the Supreme Court (by Justice Souter for a 5-justice majority) ruled that in determining whether a prior conviction qualified as a predicate felony for the Armed Career Criminal Act, 18 U.S.C. § 924(e), when the statute of conviction is sufficiently broad to include both qualifying and non-qualifying offenses, a sentencing court “is generally limited to examining the statutory definition [of the prior offense of conviction], charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Although the holding of the case is important in itself, it is the decision’s uncertain ramification for the continuing viability of the “prior conviction” exception to the Apprendi rule that has generated the most interest.

In Shepard, the Government attempted to rely …

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District Court Retains Inherent Authority to Interpret Ambiguities in Its Own Orders, Regardless of Rule 35 / 36 Constraints

United States v. Silvio Spallone, Docket No. 03-1791 (2d Cir. March 4, 2005) (Sack, Raggi, and Hall) (Op. by Raggi): In this case, the Second Circuit clarifies that a district court retains the power to interpret ambiguities in its own sentencing orders, even outside the temporal and other limits set for correction of sentences found in Rules 35 & 36 of the Federal Rules of Criminal Procedure.

Here, the defendant pled guilty to tax evasion and was originally sentenced to 30 months’ imprisonment, 3 years’ supervised release, and $2.45 million in restitution. Following a Rule 35(b) motion by the Government (in exchange for the defendant’s cooperation while in prison), the district court entered an order stating that “the defendant [] be sentenced to time served.” The defendant was promptly released.

After his release, the defendant claimed that neither the supervised release nor the restitution portions of his sentence were …

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Friday, February 25th, 2005

The Circuit Weighs In — Again — on the Plain Error Question in Booker/Fanfan Cases

United States v. Williams, Dkt. No. 04-2882-cr (2d Cir. February 23, 2005)

In Williams the Circuit, with Judge Newman writing, has added further comment on its plain error approach in Booker/Fanfan cases, as set out in United States v. Crosby, noted here. The Court reiterated the two types of errors in Booker and Fanfan — mandatorily enhancing a sentence based on facts not found by the jury and, as in Fanfan, “mandatorily imposing a Guidelines sentence even though it is based only on facts found by the jury.” And it once again held that the proper response to such errors was to remand to the district court, not for resentencing, but to determine whether a materially different sentence would initially have been imposed under Booker and Fanfan, and if so, to conduct a resentencing.

The major portion of the opinion consists of the Court’s response to …

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Thursday, February 24th, 2005

The Attorney Client Privilege Extends to Communications Between Government Officials and Their Government Lawyers

In re Grand Jury Investigation (United States v. John Doe), Dkt. No. 04-2287-cv (2d Cir. February 22, 2005)

Creating a circuit split, but in a case that may not be reviewable in the Supreme Court, the Circuit holds that the attorney-client privilege operates with respect to government officials and their government lawyers to the same extent that it applies in the private sphere. The opinion, written by Chief Judge Walker, and joined by Judges Leval and Jacobs, is a resounding reaffirmation of the “public interest” served by the privilege.

In the investigation of former Governor John G. Rowland of Connecticut, the government had subpoened the former chief legal counel to the Office of the Governor to testify to communications concerning the receipt of gifts by officials and the “meaning of related state ethics laws.” The Office of the Governor (both before and after Governor Rowland’s resignation) asserted the privilege, but …

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