Category: Section 2255
In Rare En Banc Ruling, Second Circuit Holds that Manslaughter is a Categorically Violent Felony, Including Cases of Omission, Potentially Triggering Mandatory Minimums
On March 2, 2021, in a rare en banc decision, United States v. Scott, 18-163-cr, the Second Circuit held in a divided 9-5 opinion that New York first-degree manslaughter is categorically a “violent felony” under the Armed Career Criminal Act—subjecting qualifying defendants to the statute’s mandatory minimum sentences— and a “crime of violence” under the Career Offender provision of the Sentencing Guidelines, despite the fact that manslaughter can be carried out by omission.
On March 1, 2021 the Second Circuit (Carney, Koetl) issued a decision in Collier v. United States, affirming the district court’s denial of Keith Collier’s habeas petition to vacate his conviction and sentence for an attempted robbery of a federal bank in the late 1990s and for using a firearm during the commission of a crime of violence, i.e., during the attempted robbery. The core issue presented was whether attempted federal bank robbery was categorically a “crime of violence” as that phrase is used in the relevant federal statute and Sentencing Guidelines. The application of the categorical approach in sorting out whether a myriad of state and federal crimes fall within the statutory definition of a “crime of violence” has been a major focus of federal criminal litigation over the past decade and a familiar focus of this blog.
In McCloud v. United States, the Second Circuit (Walker, Raggi, Nardini) rejected the petitioner’s contention that a development in Circuit law following a defendant’s conviction constitutes a newly-discovered fact extending the deadline for a defendant to file a habeas petition under 28 U.S.C. § 2255. In so holding, the Second Circuit reached the same conclusion as the three other circuits to have addressed the question. It effectively limits the reach of a recent favorable decision to pending and future cases.
In Mata v. United States, the Second Circuit (Park, Nardini, Menashi) issued a per curiam opinion denying the petitioner’s motion for leave to file a second motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255(h). Proceeding pro se, Mata argued that his conviction under 18 U.S.C. § 922(g) should be vacated in light of the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), which clarified what the government must prove in order to meet the “knowingly” mens rea requirement of § 922(g). Consistent with prior decisions issued by the Third and Eleventh Circuits, the Second Circuit held that Rehaif concerned an issue of statutory interpretation and did not announce a new rule of constitutional law. Accordingly, Mata’s motion did not meet the requirements of 28 U.S.C. § 2255(h).
On April 15, 2020, the Second Circuit (Rakoff, by designation, Sack, Hall) vacated the conviction of Ralph Nolan, who was convicted of conspiracy and attempt to commit a Hobbs Act robbery, on ineffective assistance of counsel grounds. The panel ruled that Nolan’s trial counsel’s failure to challenge the introduction of eyewitness identification evidence against him or to call an expert witness to guide the jury on evaluating that evidence departed from the standard of reasonable professional care. The case, United States of America v. Ralph Nolan, No. 16-3423, represents a significant endorsement by the Circuit of research showing that in certain circumstances, such as those present here, eyewitness identification evidence will often be unreliable. Nolan will be cited frequently by defendants pressing forward to seek post-conviction relief and it will also serve as a wake-up call for defense counsel who might have been unfamiliar with this research or on the fence about whether to call an expert witness to testify on the subject of eyewitness identification.
Circuit Rejects Request for Rehearing After Reinstating Defendant’s Original Sentence Incorporating 15-Year Mandatory Minimum Pursuant to the ACCA
On April 26, 2019, the Second Circuit issued another decision in Shabazz v. United States (Katzmann, Leval, Berman by designation) and denied Al-Malik Shabazz’s request for rehearing in connection with the Court’s January 4, 2019 decision, which reversed the district court’s decision granting Shabazz’s habeas petition to set aside his sentence imposed under the Armed Career Criminal Act (“ACCA”). Our prior coverage of that decision can be found here.
Circuit Grants Cooperating Witness Writ of Coram Nobis Based on Failure of Trial Counsel to Accurately Advise of Immigration Consequences
In Doe v. Unites States, the Second Circuit (Katzmann, Kearse, and Chin) reversed the district court’s denial of Doe’s petition for a writ of coram nobis. In a partially redacted opinion (we do not even know the district from which this appeal emanated), the panel took the government to task for inconsistent legal positions and recognized the right of a defendant to make plea decisions with knowledge about the immigration consequences. Therefore, granted the Court granted this “extraordinary remedy.”
On January 31, 2019, the Second Circuit issued a per curiam decision in United States v. Thrower (Wesley, Chin, and Cote, by designation) reversing a 2017 judgment from the Eastern District of New York that reduced the defendant’s sentence from 180 months to 120 months, which resulted in the defendant’s immediate release. The district court issued that order after concluding that Thrower’s prior New York convictions for robbery in the third degree and attempted robbery in the third degree do not qualify as predicate “violent felonies” under the Armed Career Criminal Act (“ACCA”). The Second Circuit concluded that those determinations were incorrect, vacated the district court’s judgment, and remanded with instructions that the district court reinstate Thrower’s original mandatory 180-month sentence.
In Shabazz v. United States, the Second Circuit (Katzmann, Leval, Berman by designation) again addressed the meaning of “violent felony” under the Armed Career Criminal Act (“ACCA”), this time under its “force clause.” As readers of this blog will recall, ACCA has been the subject of many appeals during the past year. See Jacqueline L. Bonneau & Harry Sandick, The Second Circuit Counts to Three: How One Defendant Became a Career Criminal Over the Course of an Hour (Apr. 2, 2018); Joshua Kipnees & Harry Sandick, In Split Decision, Court Again Applies Castleman To Interpret the “Force Clause” of the Armed Career Criminal Act (July 18, 2018); D. Brandon Trice & Harry Sandick, Court Regrets Allowing Successive 2255 Petition in Massey v. United States (July 16, 2018). At issue in this case was whether Shabazz’s convictions for first and second-degree robbery under Connecticut law constitute violent felonies. The Circuit held that all convictions for robbery in Connecticut inherently involve the use or threatened use of violent force, and therefore reversed the District Court’s grant of Shabazz’s habeas petition. Interestingly, the Court based its holding not on an interpretation of the elements of robbery by the Connecticut Supreme Court, but on the inherent danger of violent force associated with the act of robbery. Given the breadth of this holding, any robbery offense that is similar to the common law definition now likely qualifies as an ACCA predicate offense in the Second Circuit, perhaps cutting off future appeals arising out of convictions for robbery in other jurisdictions.
Second Circuit Rejects “Miscarriage of Justice” Challenge to Sentence Based on Vacated Underlying Conviction, but Declines to Establish Categorical Rule
In United States v. Hoskins, the Court (Hall, Jacobs, Raggi) rejected a collateral challenge to a sentence where an underlying predicate offense was vacated based on procedural error.
In Split Decision, Court Again Applies Castleman To Interpret the “Force Clause” of the Armed Career Criminal Act
In Villanueva v. United States, the Second Circuit held by a 2-1 vote (Newman and Leval, with Pooler dissenting) that a conviction for first degree assault under Connecticut law qualifies as a violent felony under the Armed Career Criminal Act of 1984 (“ACCA”). The question before the Court was whether the Connecticut statute, analyzed under the “modified categorical approach,” is a violent felony that requires the use of physical force. The Court reversed the district court’s decision to grant the petition under Section 2255 and remanded the case for resentencing.
On July 11, 2018, the Court of Appeals issued a short per curiam opinion (Wesley, Chin, Furman D.J. by designation) in Massey v. United States, affirming the sentence imposed on an individual who was convicted of possession of a firearm after a felony conviction pursuant to 18 U.S.C. § 922(g). Massey had committed three prior felonies in New York: third-degree robbery, second-degree assault, and second-degree attempted assault. Each of these was deemed a crime of violence under the “force clause” of the Armed Career Criminal Act (“ACCA,” codified at 18 U.S.C. § 924(e)). The question presented to the Court of Appeals was whether Massey’s sentence pursuant to the ACCA should be affirmed in light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551, 2563 (2015) (Johnson II), holding that the “residual clause” of the ACCA was unconstitutionally vague.
District Court Must Consider Significant Disparity Between Plea Offer and Ultimate Sentence When Assessing Ineffective Assistance Claims
In Reese v. United States, 16-516, the Second Circuit (Pooler, Wesley, Carney) vacated by summary order the order of the U.S. District Court for the Southern District of New York (Marrero, J.) denying Reese’s petition to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. Reese claimed that his counsel had provided ineffective assistance, an argument the district court rejected on the grounds that Reese could not establish prejudice because the evidence of guilt presented at trial was “overwhelming.”