In Ethridge v. Bell, 2d Cir. No. 20-1685-pr (Sep. 20, 2022), a Panel of the Court (Lynch, Bianco, and Nardini), in an opinion by Judge Bianco, ruled that the district court erred when it sua sponte dismissed Ethridge’s § 2254 petition, challenging his New York drug and weapons conviction on the ground that state courts erroneously denied his motion to suppress a gun seized during an allegedly unlawful search, without giving him any notice or an opportunity to be heard. Before sua sponte dismissing a petition on procedural grounds, the Circuit ruled, a district court must give the petitioner notice of its contemplated decision as well as a genuine opportunity to respond.

The district court erred in dismissing Ethridge’s petition sua sponte by invoking Stone v. Powell, 428 U.S. 465 (1976), which “held that a petitioner may not obtain [federal] habeas relief under the Fourth Amendment on the …

In United States v. Sealed Defendant One, 2d Cir. No. 21-118 (Sep. 21, 2022), a Panel of the Court (Newman, Chin, and Sullivan), in an opinion by Judge Sullivan, principally ruled that a sealed sentencing proceeding, which occurred via Skype videoconferencing during the COVID-19 pandemic, did not violate Rule 53’s bar on the “broadcasting” of judicial proceedings. See Fed. R. Crim. P. 53 (“Except as otherwise provided by statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”). This is so because the term “broadcasting” “clearly entails ‘public’ distribution to make something ‘widely’ known.” Op. 16-17 (emphases in original) (quoting Merriam-Webster’s online entry for “broadcast”). Because the sealed sentencing here occurred through a “closed” Skype call, which “no one other than Sealed Defendant, his wife, and …

The 2010 New York trial at issue in McCray v. Capra, 18-2336 (2d Cir. Aug. 17, 2022), an appeal of a state habeas corpus denial, was a pure credibility contest: the complainant testified she was violently raped; McCray testified the encounter was consensual but the two struggled afterward when she tried to steal from him; and both parties had injuries.

Prior to trial, however, and as often occurs in New York, after the prosecution disclosed the complainant’s psychiatric history, the trial judge examined her mental health records in camera for Brady material. Although there were over 5,000 pages of records, the judge only turned over 28 pages to the defense. McCray’s ensuing first-degree rape conviction was affirmed in the Appellate Division and New York Court of Appeals, both of which were closely-divided on the Brady non-disclosure issue he raised.

On appeal of the denial of McCray’s N.D.N.Y. habeas…

Yesterday, in United States v. Cherimond, the Second Circuit remanded a sentence for the defense to make a fuller objection.

Here’s what happened: at sentencing, the district court upwardly departed based on pending and dismissed charges. Defense counsel objected to the departure and added that the defense was “not consenting or conceding to the allegations of fact in any of those cases.” Counsel said this in a few different ways: it was “not conceding any of the factual recitations are accurate,” and later that the defense had “said repeatedly we’re not conceding.” It seems clear, right? The defense objected. But – at one point, counsel said that “certainly the Court can take [the allegations] into account if it wants.” Counsel then again said that it “wouldn’t be appropriate” to do so.

On appeal, the Circuit discussed counsel’s comments at some length, saying counsel “signaled an objection,” but also “appeared …