United States v. Rowe, Docket No. 04-1142-cr (2d Cir. July 5, 2005) (Walker, Feinberg, Wesley) (Op. by Feinberg): This case primarily holds, in an issue of first impression in the Circuit, that in a prosecution for the crime of advertising to receive, exchange, or distribute child pornography, in violation of 18 U.S.C. § 2251(d) (formerly … Read more

Hernandez v. Greiner, Docket No. 04-1517-pr (2d Cir. July 1, 2005) (Newman, Leval, Cabranes) (Op. by Newman): This case presents the very narrow question of whether a defendant has a Sixth Amendment right to counsel at a discretionary second-tier appeal (specifically, an appeal to the New York Court of Appeals) after leave-to-appeal has been granted. … Read more

Wilson v. McGinnis, Docket No. 04-4125 (2d Cir. July 5, 2005) (Feinberg, Cardamone, Sack) (Op. by Feinberg): The Circuit rejects on habeas review a petitioner’s claim that his guilty plea was not knowing and voluntary because he was not told by the judge, at the plea proceeding, that the sentence he would receive in that … Read more

Love v. McCray, Docket No. 03-2307-pr (2d Cir. July 1, 2005) (Walker, Jacobs, Wesley) (per curiam): It’s hard to know what to make of this very short opinion, since it’s very light on the relevant facts. The gist of it is that the Court denies appointed counsel’s motion (filed pursuant to Anders v. California) to … Read more

United States v. Weisser, Docket No. 01-1588 (2d Cir. 2005) (Decided June 20, 2005; Amended July 5, 2005): Two weeks ago, this Blog pointed out that in this opinion, the Court stated in significant dicta that certain facts concerning a defendant’s criminal history do not fall within the Almendarez-Torres exception to the Apprendi–Blakely rule, thus … Read more

Smith v. Duncan, Docket No. 04-0604-pr (2d Cir. June 21, 2005) (Meskill, Calabresi, Wesley) (Op. by Wesley): This is yet another habeas petition, raising potentially meritorious substantive claims, that is dismissed by the Court because of defense counsel’s failure to preserve or present the relevant issues to the state courts. No new rule is established … Read more

United States v. Bermudez, Docket No. 02-1699 (L) (2d Cir. June 29, 2005) (Walker, Pooler, Wesley) (per curiam): Let this be a warning to all the kids out there: You launder money, you lose something even more precious than your freedom — your Miami condo and even your Swiss bank account. In this short opinion, … Read more

Credit must be given to Professor Berman for spotting some great language from the Supreme Court’s recent decision in Halbert v. Michigan (link here for his discussion) that seriously undermines the Second Circuit’s decision in Morgan, which enforced an appellate waiver entered into by the defendant before Blakely was decided. Justice Ginsburg’s opinion for the … Read more

United States v. Tesoriero, Docket No. 04-2017 (2d Cir. June 28, 2005): The Government is apparently still quite sore about Crosby (and likely even more so about Fagans) and its holding that all plain-error cases pending on direct review must be remanded to the district court for a determination of whether the defendant’s “substantial rights” … Read more

McCullough v. Bennett, Docket No. 04-0081-pr (2d Cir. June 24, 2005) (Meskill, Newman, Cabranes) (Op. by Newman): The question presented in this case is whether, as Judge Newman succinctly puts it, “convictions and consecutive sentences on two counts of criminal possession of a weapon [in the second degree under N.Y. Penal Law § 265.03] violate … Read more