United States v. Watson, Docket No. 03-1709 (2d Cir. April 12, 2005) (Kearse, Cabranes, Korman) (Op. by Cabranes): In Watson, the Circuit affirms a district court’s denial, pre-hearing, of a defendant’s motion to suppress the fruits of an allegedly illegal search of a residence. The decision is noteworthy for practitioners because it limits a defendant’s ability to challenge a search where he is unwilling (usually for strategic reasons) to claim that he owned or occupied the place where the evidence was seized — i.e., that he had “a legitimate expectation of privacy in the invaded place.” Rakas v. Illinois, 439 U.S. 128 (1978).

The defendant in this case, Roger Watson, was charged with a series of drug and gun offenses based, in part, on evidence seized pursuant to a search of a basement apartment located at 33-18 Fish Avenue in the Bronx. The defendant moved to suppress …

Guzman v. United States, Docket No. 03-2446-pr (2d Cir. April 8, 2005) (Jacobs, Sotomayor, Hall) (Op. by Jacobs): Disappointing though hardly surprising, the Circuit ruled today that Booker does not apply to any cases that became final before January 12, 2005, the day Booker was decided. For those who prefer the jargon, the Court concluded that the rule established in Booker — described simply as calling for an advisory Guidelines system rather than a binding one (following the Seventh Circuit’s similarly slanted characterization in McReynolds) — is (1) new (i.e., was not “dictated by” either Apprendi or Blakely); (2) procedural (rather than substantive); and (3) not within the “watershed” exception to Teague‘s bar against retroactive application of a new procedural rule to cases that became final before the rule was announced. Little new ground is trod by the opinion; it largely relies on earlier …

United States v. Doe, Docket No. 04-1973 (2d Cir. April 5, 2005) (Wesley, Hall, and Mukasey, D.J.): In this unpublished summary order, the Circuit vacates a sentence as unreasonable under Booker. This is, to my knowledge, the first instance of a post-Booker reversal under the reasonableness standard in the Second Circuit.

Because it is merely a summary order, only a few facts can be gleaned. The defendant was convicted of two counts of making false statements on a passport application. He refused to disclose his true name throughout the proceedings, including to the Probation Office. The PSR determined that the applicable Guidelines range was 6 to 12 months, and recommended a sentence of “time served” since defendant had been in custody for nearly 18 months by the time of sentencing. Defendant had no apparent criminal history.

Judge Duffy — no great surprise — imposed a 10-year sentence …

Abdul-Malik v. Hawk-Sawyer, Docket No. 04-3877-pr (2d Cir. April 5, 2005) (Jacobs, Calabresi, Rakoff, D.J.) (Op. by Jacobs): As anyone who has ever had a client serving both a federal and a state term of imprisonment knows, federal law concerning how to account for concurrency between (or, god forbid, among …) these sentences is a complicated and irrational mess. In this decision, the Circuit confronts this shameful area of law and calls out to Congress to clean up the mess it created. While affirming the district court’s order dismissing the petitioner’s § 2241 petition — which challenged the Bureau of Prison’s refusal to designate his state prison facility as the place for service of his federal sentence under 18 U.S.C. § 3621(b) — the Court concludes by directing the Clerk of Court to transmit a copy of the opinion to the “Chairs and Ranking Members of the House and …

DeBerry v. Portuondo, Docket No. 03-2418 (2d Cir. April 4, 2005) (Walker, Oakes, and Pooler) (Opinion by Pooler) (Concurrence by Walker): In this case, the Second Circuit affirms the district court’s denial of a § 2254 petition filed by a state prisoner claiming that the prosecutor violated the rule of Batson v. Kentucky, 476 U.S. 79 (1986), in using his peremptory challenges to strike African-Americans from the jury at petitioner’s murder trial. Readers interested in the Batson issue should read the opinion for themselves. This Blog will focus on another issue touched upon by this case: What is the effect on a subsequent habeas petition when the claim advanced in the habeas was originally rejected by a state appellate court simply as “either” unpreserved for appellate review “or” without merit?

This is an issue that has been kicking around for awhile in the Circuit, and there is clearly …

Johnson v. United States, No. 03-9685 (U.S. April 4, 2005) : In a 5-4 decision, the Supreme Court by Justice Souter ruled that when a petitioner files a § 2255 petition based on a claim that his federal sentence was improperly enhanced by a state conviction that was vacated subsequent to the federal sentencing, AEDPA’s one-year statute of limitations starts running as of the date that the petitioner receives notice of the state court order vacating the predicate state conviction. However, the Court also ruled that a petitioner can take advantage of this rule only if he has sought vacatur of his state conviction with due diligence after the district court has entered judgment in the federal case. Because the petitioner Johnson waited more than 3 years after entry of judgment in the federal case to file a motion in state court to vacate the predicate convictions, and proffered …

United States v. Rubenstein, Docket No. 03-1721 (2d Cir. March 31, 2005) (Cardamone, Jacobs, and Cabranes) (Op. by Jacobs):

Introduction: In this case, the Court rejects a legal challenge to the defendants’ conviction for improperly removing asbestos under the Clean Air Act, but vacates their sentences because of an improperly imposed 4-level enhancement. In so doing, the Court “express[ed] no opinion as to whether an incorrectly calculated Guidelines sentence could nonetheless be reasonable” and thus affirmed on appeal regardless of the error, Opinion at 13, but chose to vacate the pre-Booker sentence anyway (rather than engage in Booker‘s reasonableness analysis) “because we think that the influence of this error is likely to be so pronounced that it could cause resentencing after remand to be unreasonable.” Op. at 19.

In a concurrence, Judge Cardamone tantalizingly opines that “it is entirely possible that a correctly calculated Guidelines sentence …

Rhines v. Weber, No. 03-9046, 544 U.S. ___ (March 30, 2005) (Op. by O’Connor): In this case, the Supreme Court addressed the question of the proper procedure a district court should employ when faced with a mixed habeas petition — i.e., one containing both exhausted claims and unexhausted claims — given 28 U.S.C. § 2254(b)(1)(A)’s command that no writ can “be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State.” The Court reversed the decision below from the Eighth Circuit, which ruled that “a district court has no authority to hold a habeas petition containing unexhausted claims in abeyance absent truly exceptional circumstances.” Under the Eighth Circuit rule, a district court must generally dismiss mixed petitions, even in cases where AEDPA’s one-year clock has already run, see 28 U.S.C. § 2244(d)(2), and thus where dismissal essentially …

United States v. Lewter, Docket No. 04-2546 (2d Cir. March 24, 2005) (Meskill, Jacobs, and Straub) (Op. by Jacobs): In this case, the Court upheld the defendant’s conviction against a sufficiency challenge on two gun charges — one for possessing a gun in furtherance of drug trafficking (18 U.S.C. § 924(c)(1)(A)) and the other for possessing a gun with an obliterated serial number (18 U.S.C. § 922(k)). The Court also found that while the district court erred in refusing to disclose the defendant’s pretrial services report to the defendant for use at trial, the error was harmless.

The facts are simple. Government agents executed a search warrant on defendant’s apartment, and found him sitting on his bed. Under the bed was a loaded .357 magnum revolver. On a nearby dresser was a scale with white powder on it. Inside the dresser were 71 grams of crack and a …

United States v. Brown, No. 04-3137-cr (March 22, 2005 )(McLaughlin, Sotomayor, C.J.J. and Cedarbaum, D.J., Op. by McLaughlin). Inthis opinion, the Court considered the imposition of special conditions of supervised release relating to the defendant’s finances where the defendant was not convicted of a financial crime, and where no fine or restitution was imposed. It upheld a condition requiring the defendant provide his probation officer with any requested financial information, but vacated one prohibiting him from incurring any new debts without the officer’s permission.

Facts: In November of 2003, Kenneth Brown pled guilty to distributing crack cocaine. His presentence report revealed that he had sustained drug-related convictions in 1995, 1997, 1998 and 2001. In addition, his employment history between 1996 and 2001 was “sparse, sporadic, and could not be verified.” Brown was sentenced in May of 2004 to 70 months’ imprisonment and five years of supervised release. The court …

United States v. Angelo Ramos, No. 04-2004-cr (March 14, 2005)(Newman, Sack and Parker, op. by Sack). In this case, the Court of Appeals rejected a claim that a delay of several years between the time the defendant violated his supervised release by committing a new state crime and the time the violation was actually adjudicated either deprived the court of jurisdiction or amounted to a due process violation.

Facts

The relevant facts can be reduced to a simple timeline:

September 18, 1996: Defendant Angelo Ramos is sentenced in federal court to 36 months’ imprisonment and one year of supervised release.

May 1, 2000: Ramos begins his supervised release term.

November 24, 2000: Ramos is arrested and detained in an unrelated state case.

November 29, 2000: Ramos’ probation officer notifies the federal court of the arrest and seeks a warrant, but the court does not order one.

April 21, 2001: …