United States v. Fairclough, Docket No. 05-2799-cr (2d Cir. Feb. 17, 2006) (Jacobs, Leval, Straub) (per curiam): The Circuit holds in this short opinion that (1) there is no Ex Post Facto problem when the Booker remedy (i.e., the advisory Guidelines regime) is used to sentence a defendant who committed his offense before Booker was … Read more
U.S. District Court for the Western District of New York v. Darnyl Parker, Docket No. 04-5175-cr (2d Cir. Feb. 21, 2006) (Walker, Wesley, Hall): In a lengthy opinion touching on rarely encountered issues, the Court concludes that (1) the district court did not err in denying the defendant’s mid-case request that his retained counsel be … Read more
Sash v. Zenk, Docket No. 04-6206-pr (2d Cir. Feb. 22, 2006) (denial of petition for rehearing) (Sotomayor, Wesley, Brieant (by desig’n)): The Circuit denies Sash’s petition for rehearing in this published opinion. In its earlier opinion, Sash v. Zenk, 428 F.3d 132 (2d Cir. 2005) (click here for this Blog’s discussion), the Circuit upheld as … Read more
Rodriguez v. Miller, Docket No. 04-6665-pr (2d Cir. Feb. 17, 2006) (Cardamone, McLaughlin, Parker): In this opinion, the Circuit reverses the district court’s denial of Rodriguez’s § 2254 petition and grants the writ. The Court concluded that the state trial court violated Rodriguez’s 6th Amendment right to a public trial when it excluded his mother … Read more
This Blog now returns after a short vacation. We will catch up with the three or four criminal and habeas cases decided by the Court during our break — none earth-shattering, on first glance — in the next several days.
United States v. Dmitry Proshin, Docket No. 04-5308-cr (2d Cir. Feb. 16, 2006) (Kearse, Cardamone, Cabranes) (per curiam): Sometimes one reads a decision and wonders, “Why in the world did the Court decide to publish this?” This opinion is a good example. The Circuit upholds a 6-level enhancement under U.S.S.G. § 2L2.1(b)(2), concluding that the … Read more
United States v. Titemore, Docket No. 05-1380-cr (2d Cir. Feb. 9, 2006) (Walker, Calabresi, Straub): In an opinion of little use to us city folks (and perhaps of only slightly greater relevance to our rural kin given its highly fact-specific nature), the Court rejects Titemore’s effort to suppress evidence (a rifle) seized after a state … Read more
United States v. Osama Awadallah, Docket No. 05-2566-cr (2d Cir. Jan. 26, 2006) (Feinberg, Parker, Cudahy (by desig’n)): A very fine opinion by Judge Parker that (1) upholds Judge Scheindlin’s pretrial ruling limiting the testimony of grand jurors the Government proposed to call as witnesses at Awadallah’s perjury trial, and (2) rejects the Government’s request … Read more
United States v. Song, Docket No. 05-1802-cr (2d Cir. Jan. 27, 2006) (Cabranes, Sack, Amon (by desig’n): The Circuit upholds Song’s conviction for transporting illegal aliens in this short opinion. The Court agreed with Song that the district court erred — badly, badly erred — when it precluded him from testifying about certain statements made … Read more
United States v. Holguin, Docket No. 04-5277-cr (2d Cir. Jan. 26, 2006) (Winter, Straub, Raggi): In this opinion, the Circuit finally and unsurprisingly slams the door on Booker-based challenges to the district court’s determination of a defendant’s eligibility for the safety valve under 18 U.S.C. § 3553(f). Here, Holguin argued inter alia that in light … Read more