Some additional comments regarding Fleming (No. 04-1817-cr) to supplement David’s excellent post below on the “Booker Trilogy” issued by the 2d Circuit on February 2nd.

Though Crosby is clearly the Big Daddy of the bunch, Fleming must not be overlooked because it answers two critical questions left somewhat unanswered in Crosby — (1) what does it mean that judges have to “consider” the Guidelines range in imposing sentence, post-Booker? and (2) what does “reasonableness” mean on appellate review? Fleming (also by Judge Newman, and argued two days after Booker was decided — the same day as Crosby) is, essentially, the first appeal of a post–Booker sentencing. This is because it involved the appeal of a sentence imposed upon revocation of supervised release, and the sentencing phase of a revocation proceeding, even in the pre-Booker world, was basically the same as a sentencing phase …

United States v. Crosby, No. 03-1675 (February 2, 2005)

United States v. Fleming, No. 04-1817-cr (February 2, 2005)

United States v. Green, No. 04-6564-cr (February 2, 2005)

In one remarkable opinion in Crosby and its two sidekicks, Fleming and Green, the Circuit discusses, if not settles, many of the issues involved in carrying out the Booker remedy. Crosby in particular is a must-read, since no summary can do it justice. It makes a fine addition to Judge Newman’s long line of distinguished sentencing opinions. It considers the implications of Booker broadly, as well as with reference to the case at hand, and in doing so covers a broad swath of sentencing law.

In considering the application of Booker to future cases, one noteworthy theme of the Crosby opinion is that the Guidelines have not become merely “a body of casual advice.” A somewhat contrasting theme, however, is that to …

United States v. Schneider, No. 03-1764 (January 14, 2005)

Background

Jeffrey Schneider was an accountant at a company that funded residential loans, and was implicated in a fraudulent scheme on the part of some of the company’s principals to skim funds from escrow accounts. There were several years of contententious pretrial proceedings, some of the highlights of which included: (1) a failed proffer session at which defense counsel balked at some of the terms of the agreement, which led the prosecutor to tell Schneider that his attorney was “making a very big mistake;” and, (2) a decision by different prosecutors more than a year later not to pursue criminal charges, even though an indictment had been filed.

Schneider went to trial and was acquitted. He then moved in the district court for attorney’s fees under the Hyde Amendment, which has been codified as a statutory note to 18 U.S.C. § …

In United States v. Scott, No. 04-937-cr (January 11, 2005), the Court considered several important questions relating to collateral challenges to the deportation underlying an illegal reentry prosecution.

Background

Kevin Eric Scott had previously appealed the district court’s denial of his motion to dismiss the indictment, and the Court had remanded the case to the district court to consider the effect of United States v. Perez, 330 F.3d 97 (2d Cir. 2003), which was decided while Scott’s appeal was pending. On remand, the Scott again challenged his deportation, asserting that his immigration attorney’s failure to seek 212(c) relief amounted to a due process voilation. The district court rejected this argument, and again denied the motion to dismiss.

The Court’s Ruling

In this second appeal, the Court again held that, as in Perez, ineffective assistance of counsel at a deportation hearing could be the basis for a collateral …

Frank Locascio v. United States of America, Docket No. 03-2485 (2d Cir. Jan. 12, 2005) (Walker, Winter, and Jacobs) (Op. by Winter)

Facts: In October 2000, Frank Locacio filed a Section 2255 petition, alleging that he was not afforded the effective assistance of counsel at his 1992 trial with co-defendant John Gotti. The petition was based on counsel’s alleged failure to pursue certain lines of cross-examination in order to protect Gotti.

Two years later, while the petition was still pending, Locacio filed a motion to amend the petition based on new allegations contained in an affidavit from habeas counsel, who claimed that Locacio’s trial counsel, Anthony Carnivale, had revealed that Gotti had threatened to kill him if he “individualized the interest of Locacio at Gotti’s expense.” As a result of the threat, the affidavit alleged that Carnivale was, among other things, (1) prevented from (1) cross-examining the Government’s main …

Jose Rosa v. Frank McCray, Docket No. 04-2188 (2d Cir. Jan. 27, 2005) (Miner, Cabranes, and Straub) (Op. by Miner) (Dissent Op. by Straub)

Facts: On September 5, 1997, the victim (“V”) was robbed at gunpoint by two men. V subsequently went to the police and described one of the robbers — the one carrying the gun –as having “brown hair, with the ends slightly lighter.”

The following day, V saw petitioner Rosa standing on the sidewalk. Though Rosa’s hair appeared to be blonde, V identified him as the man who robbed her at gunpoint. V called the police, who promptly arrested Rosa.

At the police station, the same detective who had interviewed V the previous day asked Rosa a series pedigree questions while completing the on-line booking form. These questions were not preceded by Miranda warnings. “As to Rosa’s hair color, [the detective] — noticing that Rosa’s …

United States v. Peterson, No. 03-1454 (2d Cir. Jan. 10, 2005):



Summary:



Government bloodsuckers may not force a probationary defendant to submit a DNA sample under the old DNA Act where his original conviction was for bank larceny. At the time Peterson was sentenced, the DNA Act required that all persons convicted of a “qualifying federal offense” were to submit a DNA sample while on supervised release, parole or probation (the Act was subsequently amended on October 30, 2004 making “any felony” a qualifying offense). The district judge dismissed the government’s petition to summon Peterson to a probation violation hearing, finding that bank larceny was not a qualifying federal offense. The appeal raised two issues: (1) whether the government was authorized to appeal a district court’s ruling dismissing a petition for a probation violation hearing; and (2) was bank larceny a qualifying federal offense? The answers were (1) yes …

(By guest blogger Darrell Fields, Associate Counsel, Appeals Bureau of the Federal Defender Division):

In Galdamez v. Keane, No. 03-2595, 2005 WL 15136 (2d Cir. Jan. 4, 2005) (Op. by Sotomayor), the Second Circuit held that a New York prisoner seeking habeas corpus relief (28 U.S.C. § 2254) had exhausted all of the claims he had raised in his Appellate Division briefs simply by asking the New York Court of Appeals for leave to appeal and then sending his Appellate Division briefs to that Court. His lawyer accomplished this by sending two cryptic letters to New York’s highest court. The lawyer’s first letter noted that he was enclosing a copy of the Appellate Division decision affirming Galdamez’s conviction and stated that “appellant hereby requests leave to appeal to this Court.” The second letter merely stated that he was enclosing “the briefs submitted to the Appellate Division together with the …

United States v. Sash, No. 04-0499 (2d Cir. Jan. 26, 2005) (Walker, Miner, and Cabranes) (Op. by Miner).

In this opinion, issued two weeks after the Supreme Court’s decision in Booker (see entry below), the Second Circuit engages in a detailed analysis of Section 2B1.1(b)(9)(C)(ii) of the Guidelines, which calls for a 2-level enhancement when the offense “involved . . . the possession of 5 or more means of identification that unlawfully were produced from, or obtained by the use of, another means of identification.” The Court rejected the defendant’s argument that his conduct — replicating police badges for police officers — did not trigger the enhancement because it did not involve true identify theft, holding that the plain language of the Guideline controlled.

What’s interesting about the opinion is not what it discusses, but what it doesn’t discuss — namely, Booker (or even Blakely). The original sentencing …

Murray v. Greiner and Arce v. Fischer, Nos. 01-3833, 02-3574 (2d Cir. Jan. 5, 2005) (Leval & Cabranes, and Garaufis, D.J.) (Op. by Leval) :



This decision simply extends Villanueva v. United States, 346 F.3d 55 (2d Cir. 2003), holding that dismissal of a § 2255 petition on grounds of untimliness under § 2244(d) (establishing 1-year period to file such a petition) renders subsequent petitions “second or successive” within the meaning of § 2244(b) (and thus subject to its nearly impossible to satisfy gatekeeping requirements), to § 2254 petitions filed by state prisoners. The reasoning is that (1) the dismissal of a habeas petition will render subsequent petitions “second or successive” if the petition was “adjudicated on the merits”; (2) dismissal of a prior petition on grounds that presented a “permanent and incurable” bar to federal review qualifies as an adjudication on the merits; and (3) dismissal of …

Michael B. Ross, by next friend Gerard A. Smyth, v. Theresa Lantz, No. 05-8900 (2d Cir. Jan. 25, 2005) (Sack, Katzmann, and Hall) (per curiam)



FACTS: Michael Ross, convicted of murder in Connecticut, was scheduled to be executed on Wednesday, January 26, 2005, at 2 a.m. Ross (a so-called death penalty “volunteer”) has declined to challenge his death sentence, but lawyers from the state public defender’s office filed a habeas petition pursuant to 28 U.S.C. § 2254 on his behalf as “next friend.” The public defender’s office contends that Ross is not mentally competent to surrender his post-conviction rights. It presented testimony to Chief Judge Chatigny (of the District of Connecticut) from a psychiatrist indicating that Ross may not have been competent when he decided to forgo further challenges to his conviction and sentence due to years of seclusion on death row.

Yesterday, January 24th, Chief Judge …