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 … Read more
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 … Read more
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 … Read more
(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 … Read more
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 … Read more
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 … Read more
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 … Read more
United States v. Carlos Goiry and Luz Marina Munoz, Nos. 02-1010, 03-1061 (2d Cir. Jan. 24, 2005) (No. 02-1010: Walker, Cardamone, and Straub) (No. 03-1061: Winter, Straub, and Lay) (Opinion by Straub). FACTS: In two cases consolidated on appeal, the defendants-appellants both entered guilty pleas and were sentenced by Judge Shirley Kram of the Southern … Read more
I. The Holding: 1. Stevens for a 5-justice majority: The rule of Apprendi and Blakely – that the maximum sentence a judge may impose is the maximum sentence authorized on the basis of facts reflected in the jury verdict or admitted by the defendant – applies to the Sentencing Guidelines. A. That is, Booker holds … Read more
US v. PABON-CRUZ, Case No. 03-1457 (12/03/04). Defendant’s conviction for receiving or distributing child pornography is affirmed, however, his sentence is vacated where the district court has discretion to sentence defendant to either a fine or a term of imprisonment of not less than ten years or both, a ruling which was not clear at … Read more