Jackson v. Edwards, Docket No. 03-2805 (2d Cir. April 14, 2005) (Newman, Sack, Parker) (Op. by Parker): In this case, the Circuit affirms a grant of habeas by Judge Weinstein, and in so doing clarifies an issue regarding exhaustion. The substantive issue is fact specific — it concerns whether the defendant was entitled to a justification charge during his state trial for homicide and criminal possession of a weapon. Readers interested in that issue should consult the opinion. Suffice it to say that the Second Circuit concluded that, under the specific facts of this case, the state trial court violated the defendant’s Due Process right when it refused to give a justification charge.

The exhaustion question concerned whether the defendant’s brief to the Appellate Division “fairly presented” the federal Due Process claim — the subject of the instant habeas petition — when it “argued only that the trial …

United States v. Capanelli, Docket Nos. 03-1376 & 03-1439 (2d Cir. April 14, 2005) (Oakes, Jacobs & Cabranes) (Op. by Jacobs): In this opinion, the Circuit — as it did recently in United States v. Rubenstein, No. 03-1721 (see Blog, below) — vacates an erroneously imposed 5-level Guidelines enhancement; exercises its discretion to correct the error and remand for resentencing without conducting Booker‘s reasonableness review; and leaves open (again) the question of whether a sentence imposed pursuant to an erroneously calculated Guideline range could nonetheless be reasonable. Thus, the Big Question posed by Rubenstein — whether a sentence imposed upon an erroneously calculated Guidelines range could nonetheless be upheld on appeal as reasonable (and, conversely, whether a sentence imposed pursuant to a correctly calculated range could nonetheless be vacated on appeal as unreasonable) — remains unanswered.

Defendant was convicted after trial of conspiring to rob a federal …

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 …