Only one published opinion yesterday, United States v. Glen (Winter, Pooler, Charles L. Brieant (S.D.N.Y.)). Mr. Glen, a convicted crack dealer, found the ultimate technicality to get his sentencing undone.
You see, he was sentenced to a mandatory life sentence because he had "two or more prior convictions for a felony drug offense [which had] become final," 21 U.S.C. § 841(b)(1)(A), at least in the opinion of the district court. As per usual, a conviction becomes final when all avenue of appeal are exhausted.
So here’s what happened. Glen was convicted in 1977 (the opinion doesn’t say what for), filed a notice of appeal, but never perfected that appeal. Yada, yada, yada, 28 years go by and the appeal is long forgotten. But they’re still technically pending. Under the relevant rules, an appellant has 60 days from filing a notice of appeal to perfect it, after which the government may move to dismiss the appeal and the court "shall" grant that motion, unless there is a reasonable excuse for the delay. "Under this rule, an avenue of direct appeal from appellant’s 1977 convictions remains open to him. Were the state ever to move to dismiss the appeals, appellant could seek to show a reasonable excuse for the delay; if that excuse were accepted by the court, appellant would then be permitted to perfect his appeals and have them heard. It may also be that, absent a motion to dismiss by the state, appellant could perfect his appeals at any time."
So, on the purest of technicalities, Glen only had one final felony drug conviction at the time of his conviction, and he couldn’t be sentenced under 841(b)(1)(A) to mandatory life. Instead, his sentencing will be subject to a 20 year mandatory minimum instead. Still not good, but quite a windfall nonetheless.
In other news, there was an interesting unpublished summary order today in McCullough v. Bennett (Calabresi, Raggi, J. Garvan Murtha (D.Vt.)), where the CA2 reversed a grant of habeas. The district court granted the writ because, at jury selection in McCullough’s state trial, a juror, when asked whether he "could be fair and impartial in this case," said "no." This, said the district court, was ineffective assistance of counsel. But the CA2 wasn’t buying it: Given the jurors answers to the other voir dire questions, that answer "was at least as likely to be a slip of the tongue, or a mistranscription, as a genuine indicator of partiality."