Circuit Affirms Grant of Habeas, and Clarifies the Exhaustion Standard

Jackson v. Edwards, Docket No. 03-2805 (2d Cir. April 14, 2005) (Newman, Sack, Parker) (Op. by Parker): In this case, the Circuit affirms a grant of habeas by Judge Weinstein, and in so doing clarifies an issue regarding exhaustion. The substantive issue is fact specific -- it concerns whether the defendant was entitled to a justification charge during his state trial for homicide and criminal possession of a weapon. Readers interested in that issue should consult the opinion. Suffice it to say that the Second Circuit concluded that, under the specific facts of this case, the state trial court violated the defendant's Due Process right when it refused to give a justification charge.

The exhaustion question concerned whether the defendant's brief to the Appellate Division "fairly presented" the federal Due Process claim -- the subject of the instant habeas petition -- when it "argued only that the trial court's refusal to instruct the jury on the defense of justification violated New York law and failed to cite the federal Constitution, federal case law, or state law employing federal constitutional analysis." Op. 9. After surveying recent Supreme Court and Second Circuit case law relevant to the issue, the Court explained that it was an open question whether a defendant needed to "indicate [a] claim's federal nature [where] the standards for adjudicating the state and federal law claims were identical." Op. at 11. The Court then concluded that the defendant did in fact "fairly present" the Due Process issue even though he raised only state-law claims to the Appellate Division.

The reason for this seems rather obvious: Where state and federal claims "share the same legal standard," as here, the rationale underlying the exhaustion requirement -- the desire to let state courts have the first opportunity to correct their own errors -- are easily met by a presentation of "only" the state claim to state courts. As the Second Circuit explained, the defendant "did not explicitly have to tell the state court that he was presenting a federal due process claim because, by raising his state law claim, he necessarily gave the Appellate Division a fair 'opportunity to pass upon and correct alleged violations of [his] federal rights.'" Op. at 14.

Circuit Again Vacates an Erroneous Enhancement without Conducting Reasonableness Review

United States v. Capanelli, Docket Nos. 03-1376 & 03-1439 (2d Cir. April 14, 2005) (Oakes, Jacobs & Cabranes) (Op. by Jacobs): In this opinion, the Circuit -- as it did recently in United States v. Rubenstein, No. 03-1721 (see Blog, below) -- vacates an erroneously imposed 5-level Guidelines enhancement; exercises its discretion to correct the error and remand for resentencing without conducting Booker's reasonableness review; and leaves open (again) the question of whether a sentence imposed pursuant to an erroneously calculated Guideline range could nonetheless be reasonable. Thus, the Big Question posed by Rubenstein -- whether a sentence imposed upon an erroneously calculated Guidelines range could nonetheless be upheld on appeal as reasonable (and, conversely, whether a sentence imposed pursuant to a correctly calculated range could nonetheless be vacated on appeal as unreasonable) -- remains unanswered.

Defendant was convicted after trial of conspiring to rob a federal credit union, a conspiracy that was foiled long before the actual robbery was to have occurred. The main question on appeal was whether a 5-level enhancement for possessing or brandishing a firearm during a robbery was applicable. Although no actual firearm was used (since the robbery never occurred), the district court imposed the enhancement on the theory that it was "reasonably foreseeable" to the defendant that a firearm would be used by one of the conspirators in furtherance of the robbery. See U.S.S.G. § 1B1.3(a)(1)(B).

The Circuit concluded that this was the wrong legal standard where the conduct supporting the enhancement did not actually occur. Relying on § 2X1.1's specific language (that in a conspiracy offense, a court should include "any adjustments . . . for any intended conduct that can be established with reasonable certainty") and the application note explaining this language (A.N. 2 to 2X1.1: "The only specific offense characteristics ... that apply are those that are determined to have been specifically intended or actually occurred"), Judge Jacobs ruled that the 5-level enhancement is applicable only "where it can be established with reasonable certainty that the conspirators specifically intended that a firearm be brandished or possessed, although it is unnecessary that any brandishing or possessing actually occurred." Op. at 8 (emphases in original). The language in 1B1.3 relied upon by the district court -- that a conspirator is liable for all "reasonably forseeable" acts "that occurred" in furtherance of the conspiracy by a co-conspirator -- was not relevant here, the Court explained, because no firearm was actually possessed or brandished. And although the facts in this case may well have supported an enhancement even under the correct standard (i.e., that there was a "reasonable certainty" that the conspirators specifically intended to possess or brandish a firearm during the contemplated robbery), the Court remanded to allow the district court to determine in the first instance whether the enhancement is appropriate under the correct legal standard. Op. at 11-12.

And, as noted already, the Court cautioned that its decision in this case to correct the error & remand for resentencing without conducting reasonableness review does not foreclose the possibility that a sentence resulting from an incorrectly calculated range can nonetheless be upheld as reasonable under Booker. Op. at 12. It simply notes that because "the influence of this error is likely to be so pronounced that it could cause resentencing after a remand to be unreasonable," citing Rubenstein, it would remand for imposing of a new sentence under a correctly calculated Guidelines range. Id.

Circuit Rejects Defendant's Effort to Assert Standing to Challenge Search of Stash House by Relying Only on Government's Allegations

United States v. Watson, Docket No. 03-1709 (2d Cir. April 12, 2005) (Kearse, Cabranes, Korman) (Op. by Cabranes): In Watson, the Circuit affirms a district court's denial, pre-hearing, of a defendant's motion to suppress the fruits of an allegedly illegal search of a residence. The decision is noteworthy for practitioners because it limits a defendant's ability to challenge a search where he is unwilling (usually for strategic reasons) to claim that he owned or occupied the place where the evidence was seized -- i.e., that he had "a legitimate expectation of privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128 (1978).

The defendant in this case, Roger Watson, was charged with a series of drug and gun offenses based, in part, on evidence seized pursuant to a search of a basement apartment located at 33-18 Fish Avenue in the Bronx. The defendant moved to suppress the evidence seized during the apartment search, claiming that the search warrant was deficient in some respect (the opinion doesn't spell out how). But rather than having the defendant allege in his affidavit that he owned or lived in the Fish Avenue apartment -- something he presumably wasn't keen to fess up to given what was found there -- the defense tried to rely exclusively on the government's theory of the case to establish his standing to challenge the search. The defense explained in an attorney affirmation that the warrant itself stated that the apartment was used by an individual named "J.D. Scullarchi," and that (1) the superceding indictment listed "Skilarchie" as an a/k/a for Watson, and (2) a Marshal's form provided to the defendant in discovery listed the Fish Avenue apartment as one of Watson's prior residences. Finally, the attorney affirmation made the general claim that "Roger Watson would have an expectation of privacy and, as such standing to contest a search pursuant to a search warrant which authorized the search of his person as well as his residence or former residence."

The defendant was in something of a catch 22, obviously: He wanted to challenge the propriety of the search of a stash house, which the government was going to claim belonged to him, without admitting under oath that it was his. The district court rejected the defendant's effort, holding that a hearing wasn't necessary because the defendant had failed to meet his burden of proving that he had an expectation of privacy in the place searched. The Circuit agreed, noting that the factual claims in the attorney affirmation were insufficient: "That the search warrant listed a person who may be defendant among those who 'utilized' 33-18 Fish Avenue does not come close to showing that defendant 'owned the premises or that he occupied them and has dominion and control over them by leave of the owner.'" (Quoting United States v. Villegas, 899 F.2d 1324, 1333 (2d Cir. 1990)). The panel also seemed distressed by the fact that, at trial, the defendant offered testimony to the effect that he did not reside at the Fish Avenue apartment; in other words, that he was trying to have his cake and eat it too.

The take-away is that a defendant cannot "challenge the search of a residence merely because he anticipated that the Government will link the objects recovered in that search to defendant at trial." But while a defendant cannot have it both ways, the government can. Here, the government presumably opposed the suppression motion on the ground that the defendant had not alleged that he used the apartment, even though the government intended to prove at trial that he had. Because the defendant has the burden of proof in establishing standing, he is the one who has to make the choice.

Circuit Slams the Habeas Door: Booker Not Applicable to Cases that Became Final before January 12, 2005

Guzman v. United States, Docket No. 03-2446-pr (2d Cir. April 8, 2005) (Jacobs, Sotomayor, Hall) (Op. by Jacobs): Disappointing though hardly surprising, the Circuit ruled today that Booker does not apply to any cases that became final before January 12, 2005, the day Booker was decided. For those who prefer the jargon, the Court concluded that the rule established in Booker -- described simply as calling for an advisory Guidelines system rather than a binding one (following the Seventh Circuit's similarly slanted characterization in McReynolds) -- is (1) new (i.e., was not "dictated by" either Apprendi or Blakely); (2) procedural (rather than substantive); and (3) not within the "watershed" exception to Teague's bar against retroactive application of a new procedural rule to cases that became final before the rule was announced. Little new ground is trod by the opinion; it largely relies on earlier decisions reaching the same result.

Guzman is a particularly loud slam of the habeas door. A good argument could be made, for instance, that it was Blakely that announced the new rule (which Booker simply applies to the Guidelines), and thus that anyone whose case became final after June 24, 2004, could make a Blakely argument in a habeas petition. The universe of such defendants is, granted, small. Under Guzman, however, it becomes practically nonexistent: The only defendants who can benefit from Booker are those whose cases became final after January 12, 2005, and there are likely few among this crowd who suffer a Booker error.

A Post-Booker First? Circuit Vacates a Sentence as Unreasonable under Booker

United States v. Doe, Docket No. 04-1973 (2d Cir. April 5, 2005) (Wesley, Hall, and Mukasey, D.J.): In this unpublished summary order, the Circuit vacates a sentence as unreasonable under Booker. This is, to my knowledge, the first instance of a post-Booker reversal under the reasonableness standard in the Second Circuit.

Because it is merely a summary order, only a few facts can be gleaned. The defendant was convicted of two counts of making false statements on a passport application. He refused to disclose his true name throughout the proceedings, including to the Probation Office. The PSR determined that the applicable Guidelines range was 6 to 12 months, and recommended a sentence of "time served" since defendant had been in custody for nearly 18 months by the time of sentencing. Defendant had no apparent criminal history.

Judge Duffy -- no great surprise -- imposed a 10-year sentence (the statutory maximum). Apparently, the good judge upwardly departed to the statutory maximum because of the defendant's refusal to disclose his true identity.

The Circuit concluded that this sentence was unreasonable, "[i]n light of the crime charged, the sentencing range recommended, Doe's lack of any provable criminal history (based on fingerprint checks), and the district court's inadequate balancing of these factors against the perceived threat posed by Doe." The Circuit specifically noted that although Doe's intransigence regarding his name was "vexing" and "potentially obstructive" of the immigration process, it did not justify a 10-year sentence. Finally, the Circuit remands the case to a different judge for resentencing. Lucky Mr. Doe.

Comment: Too much should not be made of this decision. Apart from being non-precedential, the case almost certainly involved a pre-Booker sentencing. And even under pre-Booker law, Judge Duffy's draconian sentence -- representing a 10-fold increase over the top of the Guidelines range -- would likely have been vacated as unreasonable under 18 U.S.C. § 3742(e)(3)(C) (no longer in effect after Booker).

The Concurrency Mess

Abdul-Malik v. Hawk-Sawyer, Docket No. 04-3877-pr (2d Cir. April 5, 2005) (Jacobs, Calabresi, Rakoff, D.J.) (Op. by Jacobs): As anyone who has ever had a client serving both a federal and a state term of imprisonment knows, federal law concerning how to account for concurrency between (or, god forbid, among ...) these sentences is a complicated and irrational mess. In this decision, the Circuit confronts this shameful area of law and calls out to Congress to clean up the mess it created. While affirming the district court's order dismissing the petitioner's § 2241 petition -- which challenged the Bureau of Prison's refusal to designate his state prison facility as the place for service of his federal sentence under 18 U.S.C. § 3621(b) -- the Court concludes by directing the Clerk of Court to transmit a copy of the opinion to the "Chairs and Ranking Members of the House and Senate Judiciary Committees," with the hope that Congress can at long last inject some sense into this critical but overlooked area of law.

Abdul-Malik was arrested by the state of New York in 1992 and held in custody pending trial. While in state custody, he was indicted federally on unrelated charges. While the state case was still pending, Malik was writted into federal court ("borrowed" by the feds pursuant to a writ of habeas corpus ad prosequendum) to face the federal charges. Eventually, he was convicted and sentenced in federal court to 30 years' imprisonment. At sentencing, the federal court did not indicate whether the sentence would run concurrently with or consecutive to any future state sentence.

Abdul-Malik was then returned to state custody. He was eventually convicted and sentenced to 17 years' imprisonment. The state court indicated that this sentence was to run concurrently with the federal sentence. And because the state had "primary jurisdiction" over Malik (since it arrested him first), he began serving his sentence in state custody.

Because the state court's desire for concurrency has no effect on the BOP's calculations, and because the federal judge did not indicate concurrency, however, the end result was that the sentences would run consecutively to each other. Thus, Abdul-Malik asked the BOP to designate the state prison where he was serving his state sentence as the place for service of his federal sentence as well. The BOP possesses such authority under 18 USC § 3621(b). See McCarthy v. Doe, 146 F.3d 118 (2d Cir. 1998).

Unfortunately for Malik, the BOP turned him down in an exercise of discretion. The result of this decision was stark: After Abdul-Malik served his 17-year state sentence, he would be taken to a federal prison to begin service of his 30-year federal sentence. Although the state judge wished for the state sentence to run concurrently with the federal sentence, this desire would not be realized.

Abdul-Malik then filed a § 2241 petition challenging the BOP's determination. The district court dismissed the petition, and the Second Circuit affirmed, finding that the law was clear in vesting the BOP with discretion over § 3621(b) designations.

In so doing, however, Judge Jacobs reviewed the law in this area and noted numerous problems surrounding it -- including serious federalism concerns (because the feds refuse to abide by the state court's desire for concurrency) and separation of powers concerns (because the executive (in the form of the BOP) both prosecutes and decides the length of the sentence). Thus, Judge Jacobs asks the Clerk to send Congress a copy of the opinion, as the law in this area "raises fundamental questions that may warrant congressional attention."

Those interested in additional legal details should read the opinion. Suffice it to say that the mess Abdul-Malik found himself in is not unique. Indeed, there are numerous permutations on this problem, depending on at least the following considerations: (1) Who has primary jurisdiction over the defendant? (2) Which court sentences first? and (3) What did the courts say when they imposed the sentences? The only commonality among the diverse array of situtations is a lack of rationality.

Had Abdul-Malik been arrested by the feds first but all the other facts remained the same, for instance, he would be in his desired situation: He would first serve his 30-year federal sentence in a federal prison, and at the completion of this sentence, he would be taken to state custody and likely released shortly thereafter.

Similarly, if all facts remained the same except for the ordering of the sentencings -- i.e., had Abdul-Malik been sentenced first in state court, and then in federal court (and assuming that the second sentencing court (here, the federal court) again indicates that the federal sentence should run concurrently with the earlier state sentence) he would also be in the desired situation. Abdul-Malik would serve the 17-year state sentence first, but the BOP would start credit him with all of this time to give effect to the federal court's desire for concurrency.

Finally, even on the facts as given, a simple procedure could have yielded the state judge's desire for concurrency: Surrender primary jurisdiction over Abdul-Malik to the feds. After sentencing Malik, the state judge could have ordered him released on his own recognizance (or on a one-dollar bail), at which time the federal detainer (arising from the previously imposed federal sentence) would be triggered. Abdul-Malik would then be taken to federal custody to begin service of his federal sentence in a federal prison. And because the state judge ordered the state sentence to run concurrently, the state authorities would credit him with this time. (Caveat: It may be necessary in such a situation to somehow have the defendant's state bail / ROR "revoked", so that he can get state prison credit immediately).

There is, of course, no rational distinction between these hypotheticals and Abdul-Malik's actual situation. Abdul-Malik will nonetheless end up doing an extra 17 years in prison as a result of the irrelevant fact that he was first arrested by the state, or the equally fortuitous fact that he was sentenced first by the federal court. Let's hope that Congress heeds the Circuit's call to clear up this irrational and unfair mess.

Update: It has been brought to my attention (courtesy of Jennifer Brown) that the mess in Abdul-Malik could have been avoided if the federal district judge at the original federal sentencing simply stated, at the time that sentence is imposed, that it is his (or her) intent that the federal sentence commence immediately (i.e., as of the date of the federal sentencing). Apparently, where the judge includes this magic language at sentencing and in the judgment, the BOP will begin running the defendant's federal sentence, even if he is held in state custody (as in Abdul-Malik's case). Moreover, there is a possibility that the same result can be achieved even now: The federal judge can state on the record and include in an amended judgment that, when s/he imposed sentence imposed years ago, s/he intended for Abdul-Malike's federal sentence to begin running as of that date.

Deductive Logic Comes to the Second Circuit: The Meaning of an "Either/Or" Adjudication by a State Appellate Court for a Subsequent Habeas Petition

DeBerry v. Portuondo, Docket No. 03-2418 (2d Cir. April 4, 2005) (Walker, Oakes, and Pooler) (Opinion by Pooler) (Concurrence by Walker): In this case, the Second Circuit affirms the district court's denial of a § 2254 petition filed by a state prisoner claiming that the prosecutor violated the rule of Batson v. Kentucky, 476 U.S. 79 (1986), in using his peremptory challenges to strike African-Americans from the jury at petitioner's murder trial. Readers interested in the Batson issue should read the opinion for themselves. This Blog will focus on another issue touched upon by this case: What is the effect on a subsequent habeas petition when the claim advanced in the habeas was originally rejected by a state appellate court simply as "either" unpreserved for appellate review "or" without merit?

This is an issue that has been kicking around for awhile in the Circuit, and there is clearly a tension between cases issued by different panels. DeBerry unfortunately does not resolve the dispute, which is highlighted by Chief Judge Walker's fascinating concurrence. A warning may be necessary at this point: This is seriously soporific stuff, likely of interest only to those concerned with habeas minutiae.

A very brief discussion of the facts is required. DeBerry and a co-defendant were convicted at trial of murder, and they appealed to the Appellate Division, raising among other things a Batson claim. The Appellate Division affirmed the convictions, stating with respect to the Batson claim only that it was "either unpreserved for appellate review (citing cases) or [] without merit." The New York Court of Appeals denied leave to appeal.

DeBerry subsequently filed a § 2254 petition in federal court, raising a Batson argument. After conducting a reconstruction hearing, the district court denied the petition.

Judge Pooler wrote for the Court and affirmed the lower court's dismissal of the habeas. In so doing, she made two interesting procedural determinations, both of which flow from the Appellate Division's terse "either / or" rejection of the Batson claim. First, Judge Pooler rejected the state's argument that the Batson claim was procedurally defaulted, concluding that there was no clear statement by the Appellate Division that it was rejecting this claim on the basis of New York's claim-preservation rule. Second, Judge Pooler concluded that AEDPA deference was not warranted on the Batson claim, because it was also not clear that the Appellate Division had adjudicated this claim "on the merits." In his concurrence, Judge Walker finds no fault with the first determination, but argues that the second conclusion is logically inconsistent with the first. Although this argument has surface appeal ("If the state court did not dismiss the claim on procedural grounds, it must have done so on the merits!"), it is ultimately wrong.

The first consequence of the Appellate Division's "either / or" adjudication for the habeas case creates little controversy: It means that the habeas court cannot conclude that the claim has been procedurally defaulted. As the Supreme Court has held, for a federal court to dispose of a habeas claim as procedurally defaulted, the state appellate court’s reliance on the independent state procedural bar must be "clear from the face of the opinion." Coleman v. Thompson, 501 U.S. 722, 735 (1991). In other words, "federal habeas review of a state court’s rejection of federal claims is allowed where the state has not ‘clearly and expressly state[d] that its judgment rests on a state procedural bar.’" Fama v. Commissioner, 235 F.3d 804, 809 (2d Cir. 2000), quoting Harris v. Reed, 489 U.S. 255, 263 (1989). Indeed, Fama -- cited by Judge Pooler on this very point -- specifically addressed the effect of the Appellate Division's terse "either / or" rulings: "[W]hen a state court uses language such as '[t]he defendant’s remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." 235 F.3d at 809; see Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1992) (concluding that where the Appellate Division opined only that a claim was either unpreserved or meritless, "[t]he state court did not clearly and expressly state whether it had examined the merits of the missing witness claim or had relied on a procedural default . . . [and so the] claim is properly subject to federal habeas corpus review").

It is the second consequence of the Appellate Division's "either / or" ruling that generated the dispute between Judge Pooler and Judge Walker in this case -- its effect on AEDPA's deferential standard of review. Thus, after determining that a claim made in a habeas petition has not been procedurally defaulted, the habeas court must then determine whether AEDPA’s standard of review is applicable. As § 2254(d)(1) explicitly states, AEDPA's deferential standard (permitting a grant of habeas only where, inter alia, the state court's decision "involved an unreasonable application of clearly established federal law as determined by the Supreme Court) is triggered only when a claim had been "adjudicated on the merits in State court proceedings." If the claim had not been "adjudicated on the merits" by the state court, then no AEDPA deference is warranted and the habeas court will simply review the claim de novo.

In several cases, the Second Circuit has held that where it is impossible to discern from either the language of the state court opinion or from the record itself whether the court rejected the claim on procedural or merits-based grounds, "a federal court should not give AEDPA deference to the state appellate court’s ruling." Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003). Indeed, Miranda specfically analyzed a claim rejected by the Appellate Division using the same, terse "either / or" language used in this case, and concluded that "[w]here it is 'impossible to discern the Appellate Division's conclusion on the [] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Id. at 178. Miranda left open the possibility that in some cases, even where the Appellate Division employed its cryptic "either / or" language to reject the claim raised in the habeas petition, "the record [will] make[] it clear [] that a given claim had been properly preserved for appellate review." Id. In such cases, the habeas court should "conclude that it fell into the 'without merit' part of the disjunct even if it was not expressly discussed by the Appellate Division," id., and thus apply AEDPA deference in evaluating the habeas claim.

Relying on Miranda, Judge Pooler concluded that AEDPA deference was not warranted in this case because (1) the Appellate Division simply stated that the Batson claim was "either" procedurally defaulted "or" meritless, and (2) nothing in the record "makes it clear [] that [the Batson] claim had been properly preserved." Op. at 16-17. Unfortunately, Judge Pooler then went on to say that she did not need to resolve this issue, since the habeas petition was correctly dismissed using either the pre-AEDPA de novo standard or AEDPA's deferential standard, since there was no Batson violation. Op. at 18.

Judge Walker's concurrence focuses on Judge Pooler's conclusion that AEDPA deference was not applicable, and claims that this is logically inconsistent with her determination that the Batson claim was not procedurally defaulted. Judge Walker uses truth-function deductive logic to illustrate his argument, an effort that warms the heart of this former philosophy graduate student.

Judge Walker argues thus. Concurrence at 24. First, the Batson claim raised in the habeas petition was either (A) rejected on procedural grounds or (B) rejected on the merits, by the Appellate Division. Second, Judge Pooler's finding that the claim was not procedurally defaulted is tantamount to a finding of "not A". Q.E.D., the conclusion must be "B" -- i.e., the claim was rejected on the merits. And, therefore, AEDPA deference is warranted. [For those keeping score at home, this argument would be written as follows in standard truth function logic: Premise I: A v B; Premise II: ~A; Conclusion: B]. As Judge Walker puts it in plain English,

"The state court says its decision is based on either A (claim unpreserved) or B (fails on the merits). Fama creates a presumption that where the record provides no further indication of whether it was A or B, then the habeas court should presume it is not A (the claim is not unpreserved). Logic compels the conclusion that the state court must have decided the claim on the basis of B (the claim fails on the merits)."

Concurrence at 24. And, thus, AEDPA deference is warranted. Judge Walker cites to Ryan v. Miller, 303 F.3d 231 (2d Cir. 2003), for support. There, the Court broadly opined that if the claim was not procedurally defaulted, it must have been adjudicated on the merits for AEDPA purposes.

Clever as it is, the argument fails. The failure stems from a mis-statement of one of the premises. Specifically, while Judge Walker claims that Fama requires a habeas court confronted with an "either / or" ruling from the Appellate Division to "presume that . . . the claim is not unpreserved," this is not an accurate characterization. Rather, Fama simply applies Coleman's clear statement rule concerning procedural default: A habeas court should conclude that a claim has been procedurally defaulted only where the state court has "clearly and expressly state[d] that its judgment rests on a state procedural bar." Harris, 489 U.S. at 263. Thus, a conclusion that the Batson claim was not procedurally defaulted in the habeas proceeding is tantamount only to a determination that no clear statement demonstrates that the state court rejected this claim on procedural grounds. Such a conclusion is not equivalent to a finding that the state court in fact rejected the claim on the merits.

A similar "clear statement rule" governs whether AEDPA deference is triggered. As noted, the Second Circuit held in cases such as Miranda that where it is impossible to determine whether the state court adjucated the claim on the merits or on procedural grounds, AEDPA deference is not warranted. Thus, a conclusion that AEDPA deference is not warranted is not equivalent to a finding that the claim was in fact rejected on procedural grounds by the state court. Rather, it simply means that the state court did not clearly and expressly reject the claim on the merits.

That is the flaw in Judge Walker's seemingly airtight argument. While it is true that a habeas claim must have been (in some metaphysical sense) either (A) rejected on procedural grounds or (B) rejected on the merits by the state court, a conclusion that the claim is not procedurally defaulted in a subsequent habeas proceeding is not equivalent to a conclusion that the claim was in fact not rejected by the state court on procedural grounds. Rather, it is merely a finding that no clear statement exists demonstrating that the state court rejected the claim on procedural grounds. Conversely, when a habeas court rules that AEDPA deference is not warranted, this conclusion means only that no clear statement exists demonstrating that the state court rejected the claim on the merits; it does not mean that the claim was rejected on procedural grounds.

Looked at in this light, Judge Pooler's seemingly inconsistent conclusions are in fact perfectly consistent (and, dare we say, logical). Where no clear statement exists to demonstrate the basis of the state court's rejection of the habeas claim, the claim is not procedurally defaulted and AEDPA deference is not warranted.

Yet Another Supreme Court Decision on AEDPA's One-Year Clock

Johnson v. United States, No. 03-9685 (U.S. April 4, 2005) : In a 5-4 decision, the Supreme Court by Justice Souter ruled that when a petitioner files a § 2255 petition based on a claim that his federal sentence was improperly enhanced by a state conviction that was vacated subsequent to the federal sentencing, AEDPA's one-year statute of limitations starts running as of the date that the petitioner receives notice of the state court order vacating the predicate state conviction. However, the Court also ruled that a petitioner can take advantage of this rule only if he has sought vacatur of his state conviction with due diligence after the district court has entered judgment in the federal case. Because the petitioner Johnson waited more than 3 years after entry of judgment in the federal case to file a motion in state court to vacate the predicate convictions, and proffered no excuse for the delay apart from his status as a pro se litigant, the Court concluded that "Johnson fell far short of reasonable diligence in challenging the state conviction" and thus that his § 2255 was untimely.

Justice Kennedy dissented, joined by the very odd line-up of Justices Stevens, Scalia, and Ginsburg. The dissent agreed with the majority that AEDPA's one-year clock should begin running as of the date that petitioner receives notice of the state court order vacating the state conviction, but rejected the additional requirement of due diligence in seeking the state remedy.

The lesson of Johnson is relatively simple. Defendants sentenced under a statute (e.g., 18 U.S.C. § 922(e), the Armed Career Criminal Act) or a Guidelines provision (e.g., §4B1.1, the Career Offender Guideline) that call for an enhancement of the federal sentence based on a prior state conviction (or convictions) who wish to eventually challenge their federal sentences under § 2255 must exercise "reasonable diligence" in seeking to vacate the predicate convictions once judgment has been entered by the district court. The key point to remember is that due diligence is measured from when the federal judgment of conviction is entered, not when the judgment becomes final (i.e., when the appeal has been affirmed and cert. has been denied).

Can an Incorrectly Calculated Guidelines Sentence Be Reasonable under Booker (or Vice-Versa)? Second Circuit Asks, but Does Not Answer, the Question

United States v. Rubenstein, Docket No. 03-1721 (2d Cir. March 31, 2005) (Cardamone, Jacobs, and Cabranes) (Op. by Jacobs):

Introduction: In this case, the Court rejects a legal challenge to the defendants' conviction for improperly removing asbestos under the Clean Air Act, but vacates their sentences because of an improperly imposed 4-level enhancement. In so doing, the Court "express[ed] no opinion as to whether an incorrectly calculated Guidelines sentence could nonetheless be reasonable" and thus affirmed on appeal regardless of the error, Opinion at 13, but chose to vacate the pre-Booker sentence anyway (rather than engage in Booker's reasonableness analysis) "because we think that the influence of this error is likely to be so pronounced that it could cause resentencing after remand to be unreasonable." Op. at 19.

In a concurrence, Judge Cardamone tantalizingly opines that "it is entirely possible that a correctly calculated Guidelines sentence might nonetheless be found unreasaonble upon consideration of other factors" listed under Section 3553(a), concurring Op. at 2 (emphasis added). He further suggests that in future cases where sentencing occurred after Booker, vacatur will not be automatic even where the Guidelines range was miscalculated because "[t]hose sentences will be reviewed for reasonableness, and [] an incorrectly calculated Guidelines sentence might nonetheless be reasonable . . . ." Id.

Discussion: The defendants -- a father and son -- are Hasidic Jews who "live in an insular religious community of Hasidic Jews." Op. at 3. They owned and operated a building in Brooklyn. After a third party signed a 49 year, $50 million lease for the building, the defendants began removing asbestos located throughout the building. They simply asked a few men who worked for them to do the removal and did not tell the workers that the material was asbestos. The workers removed the asbetos without any safety equipment and then improperly disposed of the asbestos.

At the defendants' trial for violating the Clean Air Act for improper removal of asbestos, 42 U.S.C. § 7413(c)(1), defense counsel asked the court to charge the jury that the defendants can be found guilty only if they were aware of the existence of regulations governing asbestos removal. The trial court rejected this request, since the Second Circuit has held that "the government need only prove that a defendant knew that the material being removed was asbestos" to sustain a conviction under this section (and need not prove that a defendant was aware of laws and regulations governing asbestos removal). Op. at 10 (discussing United States v. Weintraub, 273 F.3d 139, 151 (2d Cir. 2001)). The defendants nonetheless argued below and on appeal that because "they belong to an insular religious community of Hasidic Jews in which asbestos is not a subject of interest," there should be an exception to Weintraub for them. Op. at 10.

The Court quickly rejected this argument, holding that Weintraub's "presuppos[ition] [of] knowledge that asbestos is a regulated material" is not "a rebuttal presumption." Op. at 10-11. One violates § 7413(c)(1) if s/he removes asbestos improperly and knows that the material is asbestos, regardless of whether s/he is aware of the illegality of his or her own conduct. Alternatively, the Court looked to the facts of the case and ruled that even if some sort of good-faith defense were available, these particular defendants were not entitled to a charge to this effect because the evidence adduced at trial clearly showed that the Rubensteins were well aware that asbestos was a closely regulated substance. Op. at 11.

The Court vacated the defendants' sentences, however, after concluding that the district court improperly imposed a 4-level enhancement under § 2Q1.2(b)(4) (applicable if "the offense involved transportation, treatment, storage, or disposal" of a hazardous substance "without a permit or in violation of a permit"). The Court ruled that the enhancement was improper because the "offense" at issue -- the Clean Air Act -- did not require the defendants to obtain a permit for the disposal of asbestos. Op. at 18. It was irrelevant that New York State regulations required a permit for the transportation and disposal of asbestos, since the enhancement is triggered only where the "'offense involve[d]' activity in violation of a permit." Id.

What is more interesting than this substantive holding is the Court's discussion of why it decided to vacate the sentences rather than simply evaluate them for reasonableness, in accordance with Booker. (Of course, since the sentencing predated Booker, a remand would be required pursuant to Crosby in any event, but that's another story). Indeed, the Court specifically "express[ed] no opinion as to whether an incorrectly calculated Guidelines sentence could nonetheless be reasonable," which determination would obviate the need for vacatur and remand. Op. at 13. The Court decided to vacate the sentences in this case because it concluded that "the influence of [the erroneous imposition of the 4-level enhancement] is likely to be so pronounced that it could cause resentencing after remand to be unreasonable." Op. 19.

In a concurrence, Judge Cardamone criticized the majority for suggesting (at one point) that vacatur is somehow "necessary" -- rather than merely discretionary -- when the Guidelines range is miscalculated. Post-Booker, Judge Cardamone pointed out, a correctly calculated Guidelines range "is but one factor to be considered under 18 U.S.C. § 3553 in reviewing [the] reasonableness" of a sentence on appeal. Concurrence at 1. Thus, "it is entirely possible that a correctly calculated Guidelines sentence might nonetheless be found unreasonable upon consideration of other factors" under § 3553(a). Id. at 2. Conversely, "[b]y the same token, an incorrectly calculated Guidelines sentence might nonetheless be reasonable." Id. Judge Cardamone thus concluded that because sentences imposed after Booker "will be reviewed for reasonableness, and because an incorrectly calculated Guidelines sentence might nonetheless be reasonable, vacatur of a sentence based on Guidelines errors would not automatically be warranted." Id.

Comment: This case discusses, but does not settle, a critical question left open in the wake of Booker (and Crosby). That question is either (1) whether a sentence imposed upon an incorrectly calculated Guidelines range is necessarily unreasonable, or (conversely) (2) whether a sentence imposed upon a correctly calculated Guidelines range is necessarily reasonable. The majority opinion does not answer the question, but suggests that reasonableness review on appeal is not entirely dependent upon whether the Guidelines range was correctly calculated in the first place. Judge Cardamone's concurrence does indeed answer the question: A correctly calculated Guidelines range is but one factor to consider under reasonableness analysis, and thus a sentence could be upheld as reasonableness even where the Guidelines range was incorrectly calculated (and, conversely, a sentence could be vacated as unreasonable even where the Guidelines range was correctly calculated). The concurrence, however, is of course not binding on future panels.

Supreme Court Modifies the Second Circuit's Rule Concerning the Staying of Mixed Habeas Petitions

Rhines v. Weber, No. 03-9046, 544 U.S. ___ (March 30, 2005) (Op. by O'Connor): In this case, the Supreme Court addressed the question of the proper procedure a district court should employ when faced with a mixed habeas petition -- i.e., one containing both exhausted claims and unexhausted claims -- given 28 U.S.C. § 2254(b)(1)(A)'s command that no writ can "be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State." The Court reversed the decision below from the Eighth Circuit, which ruled that "a district court has no authority to hold a habeas petition containing unexhausted claims in abeyance absent truly exceptional circumstances." Under the Eighth Circuit rule, a district court must generally dismiss mixed petitions, even in cases where AEDPA's one-year clock has already run, see 28 U.S.C. § 2244(d)(2), and thus where dismissal essentially forecloses future federal habeas review of the petitioner's claims.

The Supreme Court did not, however, adopt the Second Circuit's contrary position in such situations. In Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001), Judge Newman ruled that when a district court is confronted with a mixed petition, and where an outright dismissal of the petition "[w]ould jeopardize the timeliness of a collateral attack" due to AEDPA's one-year statute of limitations, id. at 380, a stay of the habeas proceedings (holding the exhausted claims in abeyance while the petitioner returned to state court to exhaust the unexhausted claims) "will be the only appropriate course." Id.

Instead, Justice O'Connor ruled for a unanimous Court that "stay and abeyance should be available only in limited circumstances." Op. at 7. The Court explained, first, that "stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Id. (emphasis added). Second, even where there is good cause for the failure to exhaust, a district court should not employ the stay-and-abeyance procedure "when [the petitioner's] unexhausted claims are plainly meritless." Id.

Finally, the Court adopted Zarvela's requirement that even when a district court stays a mixed petition to allow the petitioner to exhaust the unexhausted claims in state court, it "should place reasonable time limits on a petitioner's trip to state court and back." Op. at 7. Indeed, the Court specifically cited Zarvela's requirement that when a habeas petition has been stayed, the petitioner must file a state petition (to exhaust the unexhausted claims) "within a brief interval, normally 30 days, after the stay is entered and [must] return[] to federal court wihin a similarly brief interval, normally 30 days after state court exhaustion is completed." Id. (citing Zarvela, 254 F.3d at 381.

As a last point, the Court emphasized that even where a stay is not appropriate, "the court should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims . . . ." Op. at 8.

Justice Stevens and Justice Souter each wrote a short, one-paragraph concurrence. The gist of each is similar in downplaying the opinion's "good cause" requirement. As Justice Stevens wrote, "While I join the Court's opinion, I do so on the understanding that its reference to 'good cause' for failing to exhaust state remedies more promptly . . . is not intended to impose the sort of strict and inflexible requirement that would 'trap the unwary pro se prisoner."

Comment: Rhines is obviously not a great decision for those who practice in the Second Circuit. Of course, much will depend on how courts will construe the "good cause" requirement created by this case, something not at all fleshed out by Justice O'Connor. But regardless of how much teeth courts put into this requirement, the plain fact is that, often, habeas petitioners have no excuse whatsoever for failing to exhaust certain claims -- other than the fact that they are not lawyers and were acting pro se when they filed their state petitions or motions. Simply being pro se is of course insufficient to satisfy the "good cause" requirement, so it is quite possible that Rhines will result in many more dismissals of mixed petitions. Where the Rhines test cannot be met, the petitioner should obviously opt for the choice of deleting the unexhausted claims and proceed on the exhausted ones.

Gun Convictions Upheld on Sufficiency Challenge, and District Court's Error in Failing to Disclose Pretrial Services Report to Defendant Was Harmless

United States v. Lewter, Docket No. 04-2546 (2d Cir. March 24, 2005) (Meskill, Jacobs, and Straub) (Op. by Jacobs): In this case, the Court upheld the defendant's conviction against a sufficiency challenge on two gun charges -- one for possessing a gun in furtherance of drug trafficking (18 U.S.C. § 924(c)(1)(A)) and the other for possessing a gun with an obliterated serial number (18 U.S.C. § 922(k)). The Court also found that while the district court erred in refusing to disclose the defendant's pretrial services report to the defendant for use at trial, the error was harmless.

The facts are simple. Government agents executed a search warrant on defendant's apartment, and found him sitting on his bed. Under the bed was a loaded .357 magnum revolver. On a nearby dresser was a scale with white powder on it. Inside the dresser were 71 grams of crack and a small amount of heroin. Upon being read his Miranda rights, the defendant allegedly stated that "the drugs were in the dresser" and that "he was not just your ordinary drug dealer."

At trial, counsel sought to review the report prepared by the pretrial services office after Lewter was arrested, on the theory that the report contained a statement indicating that he was high on PCP at the time and thus that his alleged post-arrest statements were not reliable. The district court refused to do so, and the defendant was convicted of possessing with intent to distribute crack and heroin, as well as the 924(c) charge and the 922(k) charge. The opinion does not disclose the sentence ultimately imposed, but it undoubtedly was a substantial one given the nature of the charges.

On appeal, Lewter raised sufficiency challenges to the two gun convictions, and argued as well that the trial court's refusal to disclose the pretrial report to him was error. The Circuit affirmed.

1. Regarding the 924(c) count, the Circuit declined to adopt (as some other Circuits have) a list of factors relevant to the determination of whether a gun was possessed "in furtherance of" the drug trafficking charges, "since each case has its own wrinkles." Rather, "the test is [simply] whether a reasonable jury could ... find beyond a reasonable doubt that possession of the firearm facilitated a drug trafficking crime . . . ," keeping in mind that " 'in furtherance' means that the gun afforded some advantage (actual or potential, real or contingent) relevant to the vicissitudes of drug trafficking." Op. at 6. And because the evidence was sufficient to find that the defendant possessed a gun to "defend [his] drug stash, [which] clearly furthers the crime of possession with intent to distribute," the Court upheld the 924(c) conviction.

2. Regarding the 922(k) count, the Court rejected the defendant's argument that because the serial number on the gun was so neatly obliterated, it was not self-evident from the appearance of the gun that a serial number had ever been there. The Court concluded that a reasonable jury could have found that Lewter knew that the serial number had been obliterated, relying on the fact that the gun was in the defendant's apartment and within arm's reach (thus suggesting his familiarity with it); that he was a drug trafficker, and thus would want an untraceable gun; and that the gun was valuable (worth $500 - $600), and thus that he would likely have inspected it carefully before purchasing it. The Court also pointed out that the jury inspected the gun during deliberations, and was thus competent to decide whether the defendant would have realized that the serial number had been obliterated.

3. Regarding the district court's refusal to disclose the pretrial report to the defense at trial, the Court concluded that this was error, citing 18 U.S.C. § 3153(c)(1) ("Each pretrial services report shall be made available to the attorney for the accused ..."). The Court found the error harmless, however, since (1) the probative value of the testimony sought was minimal, given that "this line of attack on the reliability of Lewter's statements [i.e., his post-arrest statements were not reliable because he was high on PCP] was unpersuasive", given the other evidence; and (2) "Lewter was [in any event] allowed to marshal other evidence at trial suggesting that he was intoxicated at the time of his arrest." Op. at 13.

Court Considers Conditions of Supervised Relase Regulating Defendant's Finances in Drug Case Where Neither a Fine nor Restitution Was Imposed

United States v. Brown, No. 04-3137-cr (March 22, 2005 )(McLaughlin, Sotomayor, C.J.J. and Cedarbaum, D.J., Op. by McLaughlin). Inthis opinion, the Court considered the imposition of special conditions of supervised release relating to the defendant’s finances where the defendant was not convicted of a financial crime, and where no fine or restitution was imposed. It upheld a condition requiring the defendant provide his probation officer with any requested financial information, but vacated one prohibiting him from incurring any new debts without the officer’s permission.

Facts: In November of 2003, Kenneth Brown pled guilty to distributing crack cocaine. His presentence report revealed that he had sustained drug-related convictions in 1995, 1997, 1998 and 2001. In addition, his employment history between 1996 and 2001 was "sparse, sporadic, and could not be verified." Brown was sentenced in May of 2004 to 70 months’ imprisonment and five years of supervised release. The court imposed neither a fine nor restitution, but did impose the mandatory $100 special assessment, which was to be paid through the Bureau of Prisons’ Inmate Financial Responsibility Program. It also imposed several special conditions of supervised release that had not been recommended by the Probation Department. The two at issue on appeal were that Brown provide the Probation Department with "access to any requested personal and/or business financial information" (the "financial information condition") and that he obtain approval from the Probation Office before incurring "any form of debt, including, but not limited to, use of existing credit cards, new credit cards, lines of credit, mortgages or private loans" (the "no-new-debts condition").

The Court of Appeals’ Decision: The Court upheld the financial information condition but vacated the no-new-debts condition.

Covering well-trod ground, the Court began by observing that special conditions of supervised release are reviewed for abuse of discretion, and that such conditions must be "reasonably related" to the nature and circumstances of the offense and the history and characteristics of the defendant, and the need for the sentence to protect the public, afford adequate deterrence, and address the defendant’s rehabilitative needs. In addition, a special condition must involve no greater deprivation of liberty than is reasonably necessary to achieve those ends.
Under these standards, the Court upheld the financial information condition, even though it was not necessary to ensure the payment of a fine or restitution. Brown’s "criminal record and sparse employment history" demonstrated a proclivity to support himself through criminal activity and thus the financial monitoring condition would be an "effective tool[] to ensure that [he] did not return to drug dealing after his release from prison."

Brown fared somewhat better with respect to the no-new-debts condition. The Court first observed that there was no "readily apparent" connection between Brown’s offense and the condition, since the offense did not involve the incursion of debt and he was not in debt to any large degree. Similarly, the Court did not believe that the condition would deter future criminal conduct, protect the public or assist in Brown’s rehabilitation. The Court also found that it was a greater restriction on Brown’s liberty than was reasonably necessary. Since he was indigent, the use of credit cards or other forms of credit might be "necessary to facilitate his reintegration into society" after prison. While the government had argued that the condition would guard against the possibility that Brown could accumulate excessive debt, which could make him more susceptible to relapsing into criminal behavior, the Court rejected this, remarking that this justification would render "a bar on debt accumulation ... appropriate in almost every case."

Although the Court vacated the no-new-debts condition, it did not strike it from the judgment. Since neither Brown nor the government had notice that the district court was going to impose such a condition, the Court was concerned that the record was not fully developed as to this issue. It therefore remanded the case for further findings with instructions to either "enter a more tailored condition regarding debt accumulation, or drop the condition entirely."

Court Upholds Long Delay Between Issuance of Supervised Release Violation Warrant and Its Adjudication

United States v. Angelo Ramos, No. 04-2004-cr (March 14, 2005)(Newman, Sack and Parker, op. by Sack). In this case, the Court of Appeals rejected a claim that a delay of several years between the time the defendant violated his supervised release by committing a new state crime and the time the violation was actually adjudicated either deprived the court of jurisdiction or amounted to a due process violation.

Facts

The relevant facts can be reduced to a simple timeline:

September 18, 1996: Defendant Angelo Ramos is sentenced in federal court to 36 months’ imprisonment and one year of supervised release.

May 1, 2000: Ramos begins his supervised release term.

November 24, 2000: Ramos is arrested and detained in an unrelated state case.

November 29, 2000: Ramos’ probation officer notifies the federal court of the arrest and seeks a warrant, but the court does not order one.

April 21, 2001: Probation officer again seeks a warrant, this time the court orders one.

May 5, 2001: Warrant for Ramos’ arrest is filed.

December 11, 2001: Ramos is convicted in state court, after trial.

February 1, 2002: Ramos receives concurrent four and 12 year terms of imprisonment in his state case.

October 17, 2002: Ramos is brought to federal court for supervised release violation proceedings.

November 1, 2002: Violation hearing is adjourned at Ramos’ request.

July 7, 2003: Ramos moves to dismiss the violation petition claiming, inter alia, that: (1) the delay in seeking revocation unreasonably and unnecessarily prolonged the court’s jurisdiction, in violation of 18 U.S.C. § 3583(i), and (2) the delay deprived him of due process.

February 27, 2004: District court denies Ramos’ motion to dismiss.

March 25, 2004: Court revokes Ramos’ supervised release and sentences him to one year, consecutive to his state sentence.

The Court of Appeals' Decision

On appeal, Ramos advanced largely the same claims he made in the district court, but to no avail.

First, in a decision of apparent first impression in this Circuit, the Court recognized that the delay between the filing of the petition for a supervised release violation warrant and the execution of that warrant could result in a due process violation "if the delay does in fact prejudice the defendant by substantially limiting the ability to defend against the charge that the conditions of supervised release were violated." Here, Ramos had alleged that the delay prejudiced him by rendering a particular witness unavailable; the Court rejected this as "entirely unsupported in the record."

Next, the Court rejected Ramos’ claim under 18 U.S.C. § 3583(i), which extends the district court’s jurisdiction to adjudicate supervised release violations beyond the expiration of the supervised release term "for any period reasonably necessary for the adjudication of matters arising before its expiration." The Court divided the relevant events into three distinct periods, each of which it deemed reasonably necessary, giving that term a quite liberal construction. First, the Court held that the period of time during which the state was adjudicating the new criminal charges was reasonably necessary and was in any event caused by Ramos’ own conduct. Second, the period between Ramos’ state conviction and the execution of the federal arrest warrant, which was about 10 months, was also reasonably necessary "for the same reason that this period is not overlong under a due process analysis." Since Ramos was in state custody anyway, his liberty interests were not infringed, and he suffered no tactical prejudice with respect to the violation proceeding itself. Finally, the 17-month period during which the federal proceeding was pending was also reasonably necessary. Much of the delay was occasioned by Ramos’ own request for an adjournment and the adjudication of his motion to dismiss and, again, he was not prejudiced.

This is a curious decision. Mr. Ramos would appear to have a valid claim that the 10 months that he waited for the federal authorities to execute the warrant after he was convicted in state court (the second of the three periods identified by the Court) was far too long to be reasonable. And yet, the Court was not troubled by this at all, even though there was apparently no valid explanation for why the simple execution of the warrant took so long. The upshot of Ramos seems to be that the Court will approve of any delay in adjudicating a supervised release petition, no matter how long or unexplained, unless the defendant can show that he was prejudiced. This seems like a curious outcome, since the statute says nothing at all about prejudice, but nevertheless it is now the law in this Circuit.

"Prison Mailbox" Rule Applies to State Coram Nobis Petition for Tolling Purposes under § 2244(d)(1)

Fernandez v. Artuz, Docket No. 03-2541 (2d Cir. March 17, 2005) (Jacobs, Sotomayor, Hall) (Op. by Jacobs): In this interesting opinion, the Circuit ruled that the "prison mailbox rule", which deems a document filed by a pro se prisoner "filed" as of the time the prisoner delivers it to prison authorities for mailing (rather than the time it is received by the court), can be applied to New York State coram nobis petitions for purposes of tolling § 2254's 1-year statute of limitations. I will spare everyone the details of the case, which boil down to the fact if the prison mail box rule does not apply to petitioner's coram nobis petition, his subsequent § 2254 petition would be untimely.

Although the Second Circuit has applied the prison mailbox rule in a variety of contexts, it had not done so to determine when a coram nobis petition was "properly filed" pursuant to AEDPA's tolling provisions. And because New York State generally does not apply the prison mailbox rule, see 22 N.Y.C.R.R. § 600.2(a)(6) (a motion "shall be considered filed only upon receipt"), and because some circuits have interpreted the term "properly filed" as synonymous with "filed in accordance with state law," this case presented a close question.

The Court ultimately ruled in favor of applying the prison mailbox rule here because New York State prescribes no deadline for filing coram nobis petitions. E.g., People v. Langfelt, 249 N.Y.S.2d 949 (App. Div. 1964). And "[w]ithout a time limitation, a prisoner's state coram nobis petition will always be timely regardless of when it is delivered to prison authorities or received by the court." Op. at 13. Because "[t]here is no and can be no real conflict between state law and federal law where there is no state deadline for filing the petition that tolls the AEDPA limitations period," the Court thus applied the federal prison mailbox rule to determine when a coram nobis petition is "properly filed" for purposes of tolling AEDPA's statute of limitations. Id. at 13-14.

An Unappealed Conviction Becomes "Final" for § 2255 Purposes When the Time for Filing a Notice of Appeal Expires

Moshier v. United States, Docket Nos. 04-5784, 04-5983 (2d Cir. March 17, 2005) (Newman, Straub, and Wesley) (per curiam): The Second Circuit, joining the two other circuits that have decided this question, ruled that an unappealed criminal judgment becomes final for purposes of calculating the one-year limit for filing a § 2255 petition when the time for filing a direct appeal (i.e., 10 days after entry of judgment) expires. Because the petitioner's original judgment of conviction was entered on April 29, 2002, and because he did not file a notice of appeal from that judgment, § 2255's one-year clock began running as of May 9, 2002 (10 days after April 29, 2002). And because the § 2255 petition was not filed until April 1, 2004, it was untimely.

Court finds that Speedy Trial Act Violation May be Harmless, United States v. Zedner, 04-0821-cr (2d Cir. April 28, 2005)

In March 1996, Jacob Zedner walked into several banks and attempted to negotiate bonds issued by "The Ministry of Finance of U.S.A." from the "Onited States" and with an expiration date of "forevev." The face value of the bonds was $40 million. Surprisingly, Mr. Zedner was never able to actaully negotiate the bonds. He was, however, able to negotiate some attention from the U.S. government, which found his efforts less than amusing. Indeed, the soundness and security of the United States financial system was preserved when Mr. Zedner was arrested by the U.S. Secret Service.

After 7 years of on-again/off-again institutionalization and conflicting competency evaluations, Mr. Zedner was found fit to stand trial whereupon he was convicted. At sentencing, Judge Platt rejected departure motions based on diminished capacity and overstated loss amount and sentenced him to 63 months in jail.

In a lengthy, fact-intensive opinion, the Court: (1) rejected Mr. Zedner's numerous Speedy Trial challenges; (2) rejected his 404(b) challenges; and (3) rejected his challenge to a conscious avoidance charge. Despite all this rejection, Mr. Zedner will receive a resentencing because the district court may have misunderstood its discretion to depart.

Speedy Trial Issues

Mr. Zedner challenged two different periods of time as having violated the Speedy Trial Act. The Court analyzed both periods as though no order of exclusion had been granted because the only order was one "for all time" that the trial judge entered at the beginning of the case which the Court found ineffectual.

The first time period at issue was a three-month period near the beginning of the case when defense counsel requested additional time to prepare for trial. The Court analyzed several other circuits' views on the balance between the interests of the public and the defendant in a speedy trial and held that even where no order of exclusion is entered, "when a defendant requests an adjournment that would serve the ends of justice [as the Second Cir. found], that defendant will not be heard to claim that her Speedy Trial rights were violated by the court's grant of her request, regardless whether the court made an 'ends of justice' finding under 3161(h)(8)."

The second time period was a seven month period of time in which, according to the Court, Mr. Zedner could not have been tried because of his lawyer's medical problems and because he himself had been found incompetent to stand trial during that time. The Court found that despite the mandatory language in the Speedy Trial Act that an indictment "shall be dismissed" where a defendant is not tried within the applicable period, the error in failing to exclude time during this period was harmless because Mr. Zedner could not have been tried. [This issue -- whether harmless error doctrine can in fact be applied to the Speedy Trial Act -- may conflict with other circuits and may create an interesting question for SCOTUS].

Yet another Speedy Trial claim was also rejected -- this one brought under the 6th Amendment -- based on the 7 year delay between indictment and trial. The Court balanced the factors set forth in Barker v. Wingo and determined that aside from the length of time itself, the factors weighed against a 6th A. violation, i.e., the Court found that the reasons for the delay were largely caused by Mr. Zedner, that he often requested continuances, and that he was not prejudiced by the delay.

Rule 404(b) Claim

Mr. Zedner challenged the district court's decision to allow testimony regarding his alleged fraudulent conduct 10 years prior to his arrest in the present case. Two witnesses claimed that he had induced them to sign over deeds to their homes in his name so that he could help them refinance their mortgages. They claimed that they then had to sue him to regain title. The Court found the testimony admissible because contrary to Mr. Zedner's defense that was delusional and lacked the requisite mens rea, the other acts "tended to prove Zedner's financial sophistication, his ability to execute complex schemes, and his ability to form intent to defraud."

Conscious Avoidance

The Court also rejected Mr. Zedner's objection to a conscious avoidance charge. Mr. Zedner argued that the jury could only reasonably find that he either delusional or not and that he therefore either knew the bonds were phony or didn't. Without much explanation, the Court found that the jury could have also concluded that he was aware of the high probability that they were fake and deliberately avoided confirming that fact. The Court then criticized the charge itself as potentially misleading the jury regarding the proper mens reas, but found that it did not rise to the level of plain error when read in light of the charge as a whole.

Downward Departure

Lastly, the Court remanded the case for resentencing because it seemed from the record that Judge Platt misunderstood his ability to depart downwardly based on diminished capacity and an overstated loss amount. Judge Platt seemed to indicate that because the jury found that Mr. Zedner had the requisite mens rea for conviction, he was precluded from granting a departure for diminished capacity. The Second Circuit pointed out that if that were the case, there would be no such thing as a diminished capacity departure -- as sentencing presumes a conviction, which presumes the requisite mens rea. So too, the conviction did not preclude a determination that the intended loss amount overstated the seriousness of the offense.

Circuit Approves Novel Use of Midtrial Superceding Indictment to Allege Missing Jurisdictional Element

United States v. Milstein, No. 01-1499 (March 10, 2005) (Van Graafeiland, Kearse, Wesley, Per Curiam). This case is chock full of interesting legal issues (including whether the defense of "laches" can be applied in a criminal trademark infringement case . . . it can't), but we'll try keep focused on the most salient aspects of the decision. First, the Court approved of the novel procedure employed by the District Court which permitted the government, midtrial, to amend an indictment that had failed to allege a necessary jurisdictional element. Second, the Court found a Fifth Amendment violation with respect to one of the counts of conviction based on what it concluded was a constructive amendment of the indictment. The Court therefore affirmed four counts of conviction, vacated the conviction on the count that was deemed constructively amended, and remanded for further proceedings on the vacated count (in the event sought a retrial) and for resentencing in light of Booker.

Facts: Moshe Milstein, through a number of different buinesses, bought, repackaged, and sold 3 foreign prescription drugs: Eldepryl (a Parksinson's disease treatment), Pergonal and Metrodin (fertility drugs). During the time period of his prescription drug sales, there was only one FDA-approved distributor of Eldepryl, and one for Pergonal and Metrodin. The FDA-approved distributors sold drugs that were made and packaged outside of the United States, but in compliance with FDA standards. The drugs that Milstein purchased were made for distribution outside of the United States, but Milstein stripped them of their original packaging, repackaged them with forged labels and packaging materials to mimic the FDA-approved drugs, and then sold the drugs in the United States to doctors, pharmacists, and pharmaceutical wholesalers.

The drugs Milstein sold were not identical to the FDA-approved variety. For one thing, the fertility drugs came from a different batch of the active ingredient than the drugs approved by the FDA. For another thing, the saline solution packaged with the fertility drugs was contaminated with bacteria and endotoxins and, therefore, was not "sterile" as claimed on the label. The government also offered evidence that Milstein undertook to hide his unlawful conduct: he sold drugs through two different companies which he registered as drug wholesalers in New Jersey, but not in New York (which was required in order to sell drugs in New York); the companies' registrations were filed in the names of other people; and when an investigation was in the offing, Milstein transferred $400,000 to an account in Israel by way of complex transactions routed through Switzerland.

Milstein was charged in a five-count indictment with distributing misbranded drugs in interstate commerce with fraudulent intent (21 USC 331(a) and 333(a)(2)), knowingly distributing wholesale prescription drugs in interstate commerce without a required state license (21 USC 33a(t), 333(b)(1), and 353(e)(2)(A)), knowingly distributing prescription drugs in violation of criminal trademark laws (18 USC 2320(a)), distributing wholeslae prescription drugs without providing a required history of transactions (21 USC 331(t), 333(a)(2), and 353(e)(1)(A)), and conspriacy to commit the first three crimes listed above. He was also charged with a tax count, to which he pled guilty after trial.

On March 8, 2000, immediately after the jury was sworn in at trial, the defense moved for a judgment of acquittal on the count that charged him with selling prescription drugs without a license because the indictment failed to allege the jurisdictional element, which requires that the transactions took place in interstate commerce. The government asked the court to return to the Grand Jury to add such an allegation. In the meantime, the trial continued. On March 17, 2000, Judge Dearie granted a "theoretical . . . mistrial" on the count, prompted by the "manifest necessity" of Milstein's motion for acquittal based on the jurisdictional defect. The government was given permission, however, to return to the Grand Jury to secure an amendment which would add the jurisdictional element to the count in question. Then, Judge Dearie held that the evidenced presented at the trial would be deemed presented in connection with the amended indictment. On March 22, 2000, the Grand Jury returned a superceding indictment, adding "in interstate commerce" where necessary. And as promised, the District Court incorporated all of the prior trial evidence nunc pro tunc ("now for then") into the record of the trial on the superceding indictment. On appeal, Milstein argued that the procedure violated his rights under the Fifth Amendment's Double Jeopardy Clause.

In its count charging Milstein with distributing misbranded drugs in interstate commerce with fraudulent intent, the government specifically alleged in the indictment that "[f]orgery or falsification of any part of the packaging material, including the instructional inserts, lot numbers or expiration dates, renders the drug misbranded under federal law," and charged that Milstein "regularly distributed [the modified drugs] that had been re-packaged using forged materials." It further claimed that Milstein (and others) "sold these re-packaged drugs as if they were the original product from the licensed manufacturers, thus distributing misbranded drugs." At trial, however, the government contended that its proof that the saline for the drugs was contaminated with bacteria and endotoxins was proof relevant to this count because the saline was labled "sterile," when in fact it was not. Indeed, when the government returned, midtrial, to obtain its superceding indictment, it presented evidence of this contamination to the Grand Jury as proof that the drugs were misbranded. But the government did not obtain an amendment of this count to include that specific allegation. Nonetheless, the District Court instructed the jury that it could find Milstein guilty of the misbranding count if the labeling suggestesd, falsely, that the saline was "sterile" when in fact it was contaminated. On appeal, Milstein argued that the instruction allowed him to be convicted of misbranding on the basis of the contamination evidence, constructively amending the indictment.

Court's Rulings: The Court rejected the defense argument that Milstein's Double Jeopardy rights were violated by the midtrial superceding indictment, followed by the District Court's incorporation of all of the prior trial evidence nunc pro tunc. The Court, citing the Supreme Court's decision in Illinois v. Somerville, 410 US 458 (1973), noted that the Fifth Amendment's Double Jeopardy Clause does not prevent retrial where a mistrial was required by "manifest necessity," which includes the need to correct a jurisdictionally defective indictment. The Court concluded that if a retrial is permissible in such circumstances, then the District Court's procedure was simply a way to minimize inefficiency. Given that the defense was on notice of the need for a superceder early on in the trial and did not have to change its strategy after the superceder was obtained, the Court endorsed the District Court's "somewhat unprecedented procedure."

The Court ruled for Milstein, however, on the constructive amendment issue. The government defended the trial court's instruction on the ground that the generally framed indictment covered the more specific theory that the drugs had been misbranded because they were labeled "sterile" when they were not. The Court rejected that argument. The Court held that by alleging that Milstein was charged with misbranding because he "re-packaged the drugs as if they were the original product from the licensed manufacturers" the government did not place Milstein on notice that it would also attempt to prove that the drugs were mislabled "sterile." The Court noted that the government's decision to present the contamination evidence to the Grand Jury when it sought the superceder sure made it look like the government had recognized this problem. But the government had failed to amend the count to include the contamination allegation. Accordingly, the Court vacated that count of the conviction, because "Constructive amendment is a per se violation of the Fifth Amendment," which requires that a defendant be convicted of conduct that was actually the subject of the Grand Jury's indictment. The Court did not accept the defense argument that the constructive amendment problem also required vacatur of the conspiracy count, because that count could be proved by overt acts which were not specified in the indictment, so long as there was no prejudice to the defendant, and the Court found no prejudice on the facts before it.

In addition, the Court rejected a defense argument that the Prescription Drug Marketing Act of 1987 violated the Commerce Clause and the 10th Amendment by requiring states to create a licensing scheme for wholesale distributors of prescription drugs, at least if they wanted wholesalers to be able to distribute drugs to another state. The Court basically found that the statute was merely "encouraging" rather than "coercive" (which is a 10th Amendment no-no) because a state could still choose not to create a licensing framework.

Finally, the Court noted that, even without the vacatur on one count, a Booker remand was required for re-sentencing, but went on to provide guidance to the District Court on two defense arguments relating to the District Court's "vulnerable victim" and loss calculation findings. In both instances, the Court upheld the District Court's approach, finding that victims with fertility problems or Parkinson's disease were "vulnerable" and that no credit from the loss amount should have been given for the value of the drugs sold, given that the medicine was contaminated. Indeed, a subsequent application note was later added to Sentencing Guideline 2B1.1 to make clear that there should be no credit for goods sold without regulatory approval.

Circuit Again Vacates Grant of Habeas by Judge Weinstein

Eisemann v. Herbert, Docket No. 03-2582 (2d Cir. March 11, 2005) (Newman, Sack, and B.D. Parker) (Op. by Newman): Within the span of 3 days, the Second Circuit has twice reversed Judge Weinstein's decision to grant § 2254 petitions brought by state prisoners in two separate cases. The other case, Benn v. Greiner, Docket No. 04-0527 (2d Cir. March 9, 2005), will soon be analyzed on this Blog.

Eisemann deserves a look for this introductory sentence alone: "Demonstrating that truth is often far stranger than fiction, this case involves a father and a son who sodomized the same victim, a trial lawyer who represented both the father and the son, and the disbarment for fraud convictions of both the trial lawyer and the son's state court appellate lawyer." Fortunately, the sole issue on appeal concerned whether trial counsel suffered from an actual conflict of interest that adversely affected his performance by representing both the father and the son. The father pleaded guilty before trial, and the son was subsequently convicted at trial -- while represented primarily by an associate of the infamous trial counsel -- of several counts of sodomy. After exhausting state remedies, the son brought a § 2254 petition in the E.D.N.Y. Judge Weinstein granted the petition.

The appeal turned on whether trial counsel's conflict "adversely affected" his performance. Under Second Circuit law, a defendant "need suggest only a 'plausible' alternative strategy that was not pursued at trial" as a result of the lawyer's conflict, even if the strategy is "not necessarily a 'reasonable' one." Op. at 8-9. This position appears to conflict with the law in several other circuits, which more demandingly requires that the alternative strategy foregone by conflicted counsel be an "objectively reasonable one." Op. at 9-10 (citing cases from the 4th, 8th, and 11th Circuits).

After noting the potential circuit split, Judge Newman went on to hold that even under the Second Circuit's less demanding rule, the petition should not have been granted: The petitioner could not show even a "plausible" trial strategy that was foregone by trial counsel as a result of his representation of the father. The only such strategies proffered by the petitioner were (1) trial counsel's failure to call the father to testify on the petitioner's behalf, and (2) trial counsel's failure to pursue a plea agreement with the state to testify against petitioner's father. The first strategy was not a "plausible" one, the Circuit ruled, because "there is nothing in the record that provides the slightest indication as to what [the father] would have said if called or even that he would have said anything at all." Op. at 11. The second strategy was not "plausible" because "the record does not contain evidence that [a plea] might even have been offered by the prosecutor." Op. at 14. The Circuit thus concluded that because "there is nothing in the record to suggest that [trial counsel]'s conflict caused him to forgo a plausible defense theory," the petition should not have been granted. Id.

Alternatively, the Court ruled that the petition should not have been granted because of the deference to state court rulings demanded by AEDPA. See 28 U.S.C. § 2254 (petition cannot be granted unless the state court's ruling "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court"). Noting the circuit split mentioned above as well as " the absence of a definitive ruling by the Supreme Court as to whether ineffective assistance claims based on a conflict of interest are to be assessed under the 'plausible' strategy standard of this Circuit or the 'objectively reasonable' standard of other circuits," the Court concluded that "it was not unreasonable for the state court to assess and reject [the son's] claim under what appears to have been the slightly more rigorous standard." Op. at 16.

Circuit Again Upholds Terms of Proffer Agreement, Reading Waiver Language Broadly

United States v. Barrow, No. 03-1074 (March 2, 2005)(Sack, Raggi and Hall, Op. by Raggi). In this case, the Court upheld the district court's conclusion that the defense had opened the door to the government' s use of statements that the defendant made at proffer sessions, even though the proffer statements did not directly contradict counsel's assertions at trial.

Facts: Defendant Calvin Johnson was charged with selling crack cocaine either to an informant or an undercover officer on various dates in 2001. Shortly after his arrest, he made the decision to try to cooperate, and attended three debriefings with the government during the first half of 2002. At each proffer session, he executed a proffer agreement that provided that the prosecutors could use the statements that Mr. Johnson made "as substantive evidence to rebut any evidence offered or elicited, or factual assertions made, by or on behalf of [Johnson] at any stage of a criminal prosecution (including but not limited to detention hearing, trial or sentencing)." A few weeks after his third proffer, defense counsel told the government that Mr. Johnson no longer wished to cooperate.

The case went to trial in October of 2002. In his opening statement, defense counsel asserted unequivocally that, as to the first four sales charged in the indictment, "this is a case of mistaken identity." Counsel argued that the true seller was the brother of Mr. Johnson's co-defendant. In addition, when cross-examining a detective about one of those sales, he accused the officer of fabricating testimony about a meeting with the informant on that particular date.

To rebut these arguments, the government sought to introduce proffer statements by Mr. Johnson to the effect that in 2001 he routinely sold crack at the address where the charged sales occurred. The district court held that these statements "fairly rebutted" counsel's assertions, even though Mr. Johnson had not admitted selling on the precise dates charged in the indictment.

The Court's Ruling: The Court of Appeals had no trouble affirming the district court's ruling. It upheld, as it has many times, the proffer agreement's waiver of the privilege that would otherwise apply under F.R.E. 410, under which statements made during plea negotiations are inadmissible.

The Court went on to conclude that defense counsel's conduct had triggered the waiver, rejecting the argument that "only a specific or direct contradiction between [the] proffer statement and an assertion by counsel has this effect." First, the Court examined the language of the waiver itself, noting that it was written in expansive terms, applying to "any evidence" offered by the defense. Clearly both counsel's factual assertion in opening that someone other than the defendant had committed the crime and the assertion implied by his cross-examination that the officer had fabricated events underlying one of the charges were "within the four corners of the waiver provision." The Court also rejected the claim that the proffer statements should not have been admitted because they did not directly contradict the factual assertions made. The Court noted that the agreement indicated that the purpose of admitting proffer statements would be "to rebut," and that proper rebuttal "is not limited to direct contradiction." The waiver language in this case therefore was "fairly construed to apply to any proffer statements that could fairly rebut" defense counsel's factual assertions.

A Few Doors Still Open: This decision leaves a few openings for attorneys struggling to affirmatively defend a case where the defendant has proffered. First, the Court here relied on an exacting reading of the precise wording of the agreement. For example, in a footnote the Court distinguished the agreement here, waiving Rule 410 in broad language, from agreements in other cases where the wording was narrower. Thus, in any case where the disputed agreement is worded differently from the agreement here, there is an argument that this case should not govern. The second opening relates to the definition of "factual assertion." The Court noted that it is easy to conclude that a "factual assertion" has been made where, as here, counsel has unequivocally named someone other than the defendant as the real perpetrator. Where, however, defense counsel's arguments or questions "assert facts implicitly rather than directly," there may not be a "factual assertion" that opens the door to the defendant's proffer statements. Finally, and perhaps most importantly, the Court noted that, even if the trial judge is satisfied that a factual assertion has been made, triggering the Rule 410 waiver, that conclusion permits, but "does not mandate receipt of the proffer statements in evidence." The district court always has "considerable discretion to exclude relevant evidence that may inject 'unfair prejudice' or 'confusion' into the jury's resolution of the issues in dispute." Thus, for example, the trial court might decide to "strike a question or argument" rather than admit the defendant's proffer statements in rebuttal, or might exercise its discretion to exclude proffer statements when it concludes that the triggering event was inadvertent and brief, and counsel agrees not to pursue the matter further.

District Judge Holds That A New York "Y.O" Adjudication Is Not an ACCA Predicate

United States v. Fernandez, No. 04 Cr. 539 (RPP)(S.D.N.Y. January 31, 2005)(Judge Patterson)

In an important ruling for defendants who face a 15-year mandatory minimum under the Armed Career Criminal Act (generally known as "A.C.C.A," and set out in 18 U.S.C. § 924(e)), Judge Patterson recently held that a New York State youthful offender adjudication (a "Y.O.") does not serve as a predicate conviction under this sentence enhancement statute.

Facts

Clint Fernandez, who pled guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)), had the following relevant prior convictions. A 1993 conviction for second-degree robbery, for which he received a Y.O., a 1995 state drug conviction for a Class C felony, and a 1998 state attempted robbery conviction. It was indisputed that the 1995 and 1998 convictions were A.C.C.A. predictates. The only question was whether the 1993 Y.O. was, as well.

The Judge's Ruling

Under A.C.C.A., if Mr. Fernandez had had three qualifying convictions -- that is, for "serious drug offenses," a definiton met by the 1995 conviction, or "violent felonies," such as the 1998 attempted robbery, then his conviction felon in possession conviction would have carried a mandatory minimum of 15 years' imprisonment and a maximum of life, instead of the 10-year maximum (with no mandatory minimum) that ordinarily applies.

Judge Patterson ruled that Mr. Fernandez' 1993 Y.O., although for robbery, was not an A.C.C.A. predicate. In reaching this conclusion, the judge first looked to 18 U.S.C. § 921(a)(20), which provides, in pertinent part, that "[a]ny conviction that has been ... set aside ... shall not be considered a conviction for purposes of this chapter," which includes A.C.C.A. He then noted that under New York law, a Y.O. adjudication "vacate[s] and replace[s]," or "substitute[s] for" the underlying conviction. Finally, the judge looked at several recent Second Circuit cases upholding the use of Y.O.'s for various guideline enhancement purposes, noting those decisions had all concluded that under New York law, the effect of a Y.O. is to "set aside" the conviction, even though it does not "expunge it," a feature necessary for the adjudication to be excluded from the sentencing guidelines. See United States v. Matthews, 205 F.3d 544, 548 (2d Cir. 2000); United States v. Cuello, 357 F.3d 162, 167 (2d Cir. 2004). Since, unlike the sentencing guidelines, the federal statute exempts convictions that have been "set aside," and since New York Y.O. adjudications do in fact "set aside" the underlying conviction, Judge Patterson concluded that a New York Y.O. is not an A.C.C.A. predicate.

This was good news for Mr. Fernandez, who was sentenced to 57 months' imprisonment, instead of 180.

The Fernandez decision, which the government has not appealed -- indeed it agreed in the district court that Y.O.'s are not A.C.C.A. predicates -- is significant for another reason. Under its reasoning, a Y.O. cannot serve as the predicte for a felon in possession conviction at all. Thus, if a person is arrested and charged with being a felon in possession under § 922(g)(1), and his only prior felony resulted in a New York Y.O. adjudication, under Fernandez, he is innocent (legally, if not factually) of the crime with which he is charged because he does not have a felony conviction as defined in the relevant firearms statutes.