Antonio Rosario Jose Jeres Antonio Ramirez v. United States, 164 F.3d 729 (2d Cir. 1998). · Go Syfert
Antonio Rosario Jose Jeres Antonio Ramirez v. United States, 164 F.3d 729 (2d Cir. 1998). Cases Citing This Book View Copy Cite
118 citation events (108 in the last 25 years) across 17 distinct courts.
Strongest positive: Dervishaj v. United States (ca2, 2024-08-16)
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Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) Dervishaj v. United States
2d Cir. · 2024 · confidence medium
We assume the parties’ familiarity with the remaining facts and issues on appeal, to which we refer only as necessary to explain our decision to affirm. * * * On “an appeal from the denial of a § 2255 motion, we review the district court’s factual findings for clear error and its legal conclusions de novo.” Rosario v. United States, 164 F.3d 729, 735 (2d Cir. 1998).
discussed Cited as authority (rule) Davis v. United States
2d Cir. · 2024 · confidence medium
Davis v. United States, No. 09-CR-390 2 Pinkerton v. United States, 328 U.S. 640 (1946). 3 Under the prison mailbox rule, a notice of appeal is considered “filed at the time petitioner delivered it to the prison authorities for forwarding to the court clerk.” Houston v. Lack, 487 U.S. 266, 276 (1988). 4 To overcome a procedural bar, a petitioner must show (1) cause for not raising the issue on direct appeal and “prejudice resulting therefrom; or (2) actual innocence.” Sapia v. United States, 433 F.3d 212, 217 (2d Cir. 2005) (quoting Rosario v. United States, 164 F.3d 729, 732 (2d Cir. …
cited Cited as authority (rule) Bonaparte v. United States
S.D.N.Y. · 2023 · confidence medium
This is in part because the Court seeks to “protect the finality of federal criminal judgments.” Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998).
discussed Cited as authority (rule) Price v. United States (2×) also: Cited "see"
E.D.N.Y · 2023 · confidence medium
A claim raised for the first time in a § 2255 petition is forfeited unless the petitioner can show either: “(1) cause for fail- ing to raise the issue, and prejudice resulting therefrom; or (2) actual innocence.” Rosario v. Untied States, 164 F.3d 729, 732 (2d Cir. 1998), “Cause” may be demonstrated by showing that procedural default is the result of ineffective assistance of coun- sel.
cited Cited as authority (rule) Santana v. United States
S.D.N.Y. · 2023 · confidence medium
This is, in part, because the Court seeks to “protect the finality of federal criminal judgments.” Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998).
cited Cited as authority (rule) Martin v. Warden, Belmont Correctional Institution
S.D. Ohio · 2022 · confidence medium
LEXIS 1555, at *15 (6th Cir.2004) (citing Rosario v. United States, 164 F.3d 729, 732-33 (2d Cir.1998)).
discussed Cited as authority (rule) United States v. Castro
5th Cir. · 2022 · confidence medium
Ibid.; see also Brewer v. Marshall, 119 F.3d 993, 999 (1st Cir. 1997); Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998); Sweger v. Chesney, 294 F.3d 506, 520 (3d Cir. 2002); Yeatts v. Angelone, 166 F.3d 255, 261 (4th Cir. 1999); Sowell v. Bradshaw, 372 F.3d 821, 830 (6th Cir. 2004); Kurzawa v. Jordan, 146 F.3d 435, 440 (7th Cir. 1998); King v. Kemna, 266 F.3d 816, 822 (8th Cir. 2001) (en banc); Vang v. Nevada, 329 F.3d 1069, 1073 (9th Cir. 2003); United States v. Wiseman, 297 F.3d 975, 979 (10th Cir. 2002); Moon v. Head, 285 F.3d 1301 , 1315 n.17 (11th Cir. 2002).
discussed Cited as authority (rule) United States v. Castro
5th Cir. · 2021 · confidence medium
Ibid.; see also Brewer v. Marshall, 119 F.3d 993, 999 (1st Cir. 1997); Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998); Sweger v. Chesney, 294 F.3d 506, 520 (3d Cir. 2002); Yeatts v. Angelone, 166 F.3d 255, 261 (4th Cir. 1999); Sowell v. Bradshaw, 372 F.3d 821, 830 (6th Cir. 2004); Kurzawa v. Jordan, 146 F.3d 435, 440 (7th Cir. 1998); King v. Kemna, 266 F.3d 816, 822 (8th Cir. 2001) (en banc); Vang v. Nevada, 329 F.3d 1069, 1073 (9th Cir. 2003); United States v. Wiseman, 297 F.3d 975, 979 (10th Cir. 2002); Moon v. Head, 285 F.3d 1301 , 1315 n.17 (11th Cir. 2002).
discussed Cited as authority (rule) Diaz v. United States
E.D.N.Y · 2020 · confidence medium
A petitioner has procedurally forfeited any claim that was not timely filed on direct appeal, unless he can show “(1) cause for failing to raise the issue, and prejudice resulting therefrom; or (2) actual innocence.” Sapia v. United States, 433 F.3d 212, 216 (2d Cir. 2005) (quoting Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998)).
discussed Cited as authority (rule) Awulye v. United States
S.D.N.Y. · 2020 · confidence medium
To raise this argument for the first time in his § 2255 motion, he must “demonstrate either: (1) cause for failing to raise the issue, and prejudice resulting therefrom; or (2) actual innocence.” Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998).
discussed Cited as authority (rule) Lowe v. United States
S.D.N.Y. · 2019 · confidence medium
See Sapia v. United States, 433 F.3d 212, 217 (2d Cir. 2005) (“Because a motion under § 2255 is not a substitute for direct appeal, [a petitioner] has procedurally forfeited his claim [first raised on the petition] unless he can show ‘(1) cause for failing to raise the issue, and prejudice resulting therefrom; or (2) actual innocence.’”) (citing Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998); see also Robles v. United States, No. 14 Civ. 9311, 2017 WL 1025993 , at *2 (S.D.N.Y.
discussed Cited as authority (rule) United States v. Kenner (2×) also: Cited "see"
E.D.N.Y · 2017 · confidence medium
Accordingly, given this standard, “a defendant may be guilty of. a wire fraud violation under a Pinkerton theory if: “(1) the defendant conspired to commit [wire fraud];' (2) the [substantive wire fraud offense] was committed in furtherance -of the conspiracy; and (3) the offense was a reasonably foreseeable consequence of an act furthering the unlawful agreement.” Rosario v. United States, 164 F.3d 729, 734 (2d Cir. 1998).
discussed Cited as authority (rule) United States v. Whitman
S.D.N.Y. · 2015 · confidence medium
On the other hand, if Whitman’s direct appeal omitted these arguments, then, for the Court to reach the merits, Whitman must show “ ‘cause for failing to raise the issue[s], and prejudice resulting therefrom.’” See Rosario v. United States, 164 F.3d 729, 732 (2d Cir.1998) (quoting Douglas v. United States, 13 F.3d 43 (2d Cir.1993)).
discussed Cited as authority (rule) United States v. Gupta
S.D.N.Y. · 2015 · confidence medium
Thus, where, as here, “a criminal defendant has procedurally forfeited his claim by failing to raise it on direct review, the claim may be raised in a § 2255 motion only if the defendant can demonstrate either: (1) cause for failing to raise the issue, and prejudice resulting therefrom; or (2) actual innocence.” Rosario v. United States, 164 F.3d 729, 732 (2d Cir.1998) (internal quotation marks omitted).
discussed Cited as authority (rule) Hamilton v. United States
2d Cir. · 2015 · confidence medium
On “an appeal from the denial of a § 2255 motion, we review the district court’s factual findings for clear error and its legal conclusions de novo.” Rosario v. United States, 164 F.3d 729, 735 (2d Cir.1998).
discussed Cited as authority (rule) Wolfson v. United States (2×)
S.D.N.Y. · 2012 · confidence medium
Furthermore, a § 2255 motion'is “not a substitute for a direct appeal.” Rosario v. United States, 164 F.3d 729, 732 (2d Cir.1998) (internal quotation marks and citations omitted).
discussed Cited as authority (rule) McLeod v. State (2×)
Ala. Crim. App. · 2012 · confidence medium
Extraordinary-Circumstances Analysis required by Ex parte Clemons Had the majority conducted an extraordinary-circumstances analysis, it could have examined this case in light of the factors listed in Rosario v. United States, 164 F.3d 729 (2d Cir.1998), set out in Ex parte Clemons: “In Rosario v. United States, 164 F.3d 729, 732-33 (2d Cir.1998), the United States Court of Appeals for the Second Circuit dealt with this issue in considerable detail: “‘We may, nevertheless, raise these issues [not asserted below by the government] sua sponte.
discussed Cited as authority (rule) Yannotti v. United States
2d Cir. · 2012 · confidence medium
“Upon an appeal from the denial of a § 2255 motion, we review the district court’s factual findings for clear error and its legal conclusions de novo.” Rosario v. United States, 164 F.3d 729, 735 (2d Cir.1998).
discussed Cited as authority (rule) Martin v. United States
E.D.N.Y · 2011 · confidence medium
Because Martin did.not raise this issue in a direct appeal, he has procedurally forfeited his claim regarding the court’s alleged Section 851 defect unless he can show “(1) cause for failing to raise the issue, and prejudice resulting therefrom; or (2) actual innocence.” Rosario v. United States, 164 F.3d 729, 732 (2d Cir.1998) (internal citations and quotation marks omitted), cert. denied, 527 U.S. 1012 , 119 S.Ct. 2355 , 144 L.Ed.2d 250 (1999).
cited Cited as authority (rule) Bower v. Walsh
E.D.N.Y · 2010 · confidence medium
Doe v. Menefee, 391 F.3d *228 147, 168-69 (2d Cir.2004); Rosario v. U.S., 164 F.3d 729, 734 (2d Cir.1998).
discussed Cited as authority (rule) Regis v. United States (2×) also: Cited "see"
S.D.N.Y. · 2009 · confidence medium
Rosario v. United States, 164 F.3d 729, 734 (2d Cir.1998) (citing, inter alia, Masotto, 73 F.3d at 1241 ).
discussed Cited as authority (rule) Plato v. Morrissey
W.D.N.Y. · 2009 · confidence medium
See also United States v. Torres, 163 F.3d 909 , 912 & n. 15 (5th Cir.1999) (“We apply this ‘reasonable juror’ standard even though the petitioner’s conviction was obtained pursuant to a guilty plea,” citing Bousley ); Rosario v. United States, 164 F.3d 729, 733 (2d Cir.1998) (applies actual innocence standard of reasonable juror to guilty plea, citing Bousley), cert. denied, 527 U.S. 1012 , 119 S.Ct. 2355 , 144 L.Ed.2d 250 (1999).
discussed Cited as authority (rule) United States v. Linder
4th Cir. · 2009 · signal: cf. · confidence medium
See United States v. Metzger, 3 F.3d 756, 758 (4th Cir.1993) (suggesting that, even where Government failed to raise waiver as a procedural bar, “unique interests in judicial efficiency, conservation of scarce judicial resources, and orderly and prompt administration of justice” may sometimes support our consideration of the waiver as a procedural bar (internal quotation marks omitted)); cf. Rosario v. United States, 164 F.3d 729, 732-33 (2d Cir.1998) (holding that, under “the unique circumstances of this case,” consideration of the issue of defendants’ procedural default was "approp…
discussed Cited as authority (rule) United States v. Graziano (2×) also: Cited "see, e.g."
E.D.N.Y · 2008 · confidence medium
Accordingly, given this standard, “a defendant may be guilty of a § 924(c) violation under a Pinkerton theory if: (1) the defendant conspired to commit a crime involving violence or drug trafficking; (2) the § 924(c) offense was committed in furtherance of the conspiracy; and (3) the offense was a reasonably foreseeable consequence of an act furthering the unlawful agreement.” Rosario v. United States, 164 F.3d 729, 734 (2d Cir.1998).
discussed Cited as authority (rule) Schwamborn v. United States
E.D.N.Y · 2007 · confidence medium
Massaro *243 v. United States, 538 U.S. 500, 504 , 123 S.Ct. 1690 , 155 L.Ed.2d 714 (2003); see also Bousley v. United States, 523 U.S. 614, 622 , 118 S.Ct. 1604 , 140 L.Ed.2d 828 (1998) (“In failing to [raise the claim presented in the petitioner’s § 2255 petition on direct appeal], petitioner procedurally defaulted on the claim he now presses on us.”); Sapia v. United States, 433 F.3d 212, 217 (2d Cir.2005) (“Because a motion under § 2255 is not a substitute for direct appeal, Sapia has procedurally forfeited his [§ 2255] claim ... unless he can show ‘(1) cause for failing to ra…
discussed Cited as authority (rule) Ex Parte Clemons (2×)
Ala. · 2007 · confidence medium
Id. " (Emphasis added.) In Rosario v. United States, 164 F.3d 729, 732-33 (2d Cir.1998), the United *355 States Court of Appeals for the Second Circuit dealt with this issue in considerable detail: "We may, nevertheless, raise these issues [not asserted below by the government] sua sponte.
discussed Cited as authority (rule) Anthony Disimone, Petitioner-Appellee-Cross-Appellant v. William E. Phillips, Eliot L. Spitzer, Respondents-Appellants-Cross-Appellees
2d Cir. · 2006 · confidence medium
As the Supreme Court has said, “futility cannot constitute cause if it means simply that a claim was ‘unacceptable to that particular court at that particular time.’ ” Bousley, 523 U.S. at 623 , 118 S.Ct. 1604 (quoting Engle v. Isaac, 456 U.S. 107 , 130 n. 35, 102 S.Ct. 1558 , 71 L.Ed.2d 783 (1982)) (internal quotation marks omitted); accord Jones, 329 F.3d at 295 ; Rosario v. United States, 164 F.3d 729, 733 (2d Cir.1998).
discussed Cited as authority (rule) Scala v. United States
E.D.N.Y · 2006 · confidence medium
If the claim has not been presented on direct review, the procedural bar may be waived only if the petitioner establishes (1) “cause” for the waiver and “actual prejudice” from the alleged violations; or (2) “actual innocence.” Bousley v. United States, 523 U.S. 614, 622 , 118 S.Ct. 1604, 1611 , 140 L.Ed.2d 828 (1998); Rosario v. United States, 164 F.3d 729, 732 (2d Cir.1998); see also Smith v. Murray, 477 U.S. 527, 537 , 106 S.Ct. 2661, 2667-68 , 91 L.Ed.2d 434 (1986); Murray v. Carrier, 477 U.S. 478, 485 , 106 S.Ct. 2639, 2643-44 , 91 L.Ed.2d 397 (1986); Wainwright v. Sykes, 433 …
discussed Cited as authority (rule) Day v. McDonough (2×)
SCOTUS · 2006 · confidence medium
See Brewer v. Marshall, 119 F. 3d 993, 999 (CA1 1997); Rosario v. United States, 164 F. 3d 729, 732 (CA2 1998); Sweger v. Chesney, 294 F. 3d 506, 520 (CA3 2002); Yeatts v. Angelone, 166 F. 3d 255, 261 (CA4 1999); Magouirk v. Phillips, 144 F. 3d 348, 358 (CA5 1998); Sowell v. Bradshaw, 372 F. 3d 821, 830 (CA6 2004); Kurzawa v. Jordan, 146 F. 3d 435, 440 (CA7 1998); King v. Kemna, 266 F. 3d 816, 822 (CA8 2001) (en banc); Vang v. Nevada, 329 F. 3d 1069, 1073 (CA9 2003); United States v. Wiseman, 297 F. 3d 975, 979 (CA10 2002); Moon v. Head, 285 F. 3d 1301, 1315, n. 17 (CA11 2002).
discussed Cited as authority (rule) Joseph Sapia v. United States (2×)
2d Cir. · 2005 · confidence medium
Rosario v. United States, 164 F.3d 729, 735 (2d Cir.1998), cert. denied, 527 U.S. 1012 , 119 S.Ct. 2355 , 144 L.Ed.2d 250 (1999).
discussed Cited as authority (rule) Zhang v. United States
E.D.N.Y · 2005 · confidence medium
If the claim has not been presented on direct review, the procedural bar may be waived only if the petitioner establishes (1) “cause” for the waiver and shows “actual prejudice” from the alleged violations or (2) “actual innocence.” Bousley v. United States, 523 U.S. 614, 622 , 118 S.Ct. 1604, 1611 , 140 L.Ed.2d 828 (1998); Rosario v. United States, 164 F.3d 729, 732 (2d Cir.1998); see also Smith v. Murray, 477 U.S. 527, 537 , 106 S.Ct. 2661, 2667-68 , 91 L.Ed.2d 434 (1986); Murray v. Carrier, 477 U.S. 478, 485 , 106 S.Ct. 2639, 2643-44 , 91 L.Ed.2d 397 (1986); Wainwright v. Sykes,…
cited Cited as authority (rule) United States v. Basciano
E.D.N.Y · 2005 · confidence medium
Rosario v. United States, 164 F.3d 729, 732 (2d Cir.1998).
discussed Cited as authority (rule) Frank Howard v. Barbara Bouchard, Warden (2×)
6th Cir. · 2005 · confidence medium
LEXIS 1555, at *15 (6th Cir.2004) (citing Rosario v. United States, 164 F.3d 729, 732-33 (2d Cir.1998)).
cited Cited as authority (rule) Howard v. Bouchard
6th Cir. · 2005 · confidence medium
Appx. 108, 114 , 2004 U.S. App. LEXIS 1555 , at *15 (6th Cir. 2004) (citing Rosario v. United States, 164 F.3d 729, 732-33 (2d Cir. 1998)).
cited Cited as authority (rule) Rickenbacker v. United States
E.D.N.Y · 2005 · confidence medium
Rosario v. United States, 164 F.3d 729, 732 (2d Cir.1998) (quoting Douglas v. United States, 13 F.3d 43, 46 (2d Cir.1993)).
discussed Cited as authority (rule) Antwi v. United States
S.D.N.Y. · 2004 · confidence medium
A habeas petition brought pursuant to Section 2255 “is not a substitute for an appeal,” and a defendant who did not raise his claims on appeal will be barred from raising them for the first time in a habeas petition unless he “can demonstrate either: (1) cause for failing to raise the issue, and prejudice resulting therefrom; or (2) actual innocence.” Rosario v. United States, 164 F.3d 729, 732 (2d Cir.1998) (citation omitted).
discussed Cited as authority (rule) Coluccio v. United States
E.D.N.Y · 2004 · confidence medium
“A motion under § 2255 is not a substitute for an appeal.” Rosario v. United States, 164 F.3d 729, 732 (2d Cir.), cert. denied, 527 U.S. 1012 , 119 S.Ct. 2355 , 144 L.Ed.2d 250 (1999) (citing United States v. Munoz, 143 F.3d 632, 637 (2d Cir.1998)).
cited Cited as authority (rule) Walker v. United States
N.D.N.Y. · 2004 · confidence medium
Rosario v. United States, 164 F.3d 729, 732 (2d Cir.1998), ce rt. denied, 527 U.S. 1012 , 119 S.Ct. 2355 , 144 L.Ed.2d 250 (1998).
discussed Cited as authority (rule) Santos v. United States
E.D.N.Y · 2003 · confidence medium
DISCUSSION “Where a criminal defendant has procedurally forfeited his claim by failing to raise it on direct review, the claim may be raised in a § 2255 motion only if the defendant can demonstrate either: (1) ‘cause for failing to raise the issue, and prejudice resulting therefrom,’ Douglas v. United States, 13 F.3d 43, 46 (2d Cir.1993); or (2) ‘actual innocence.’ ” Rosario v. United States, 164 F.3d 729, 732 (2d Cir.), cert. denied, 527 U.S. 1012 , 119 S.Ct. 2355 , 144 L.Ed.2d 250 (1999) (citing Bousley v. United States, 523 U.S. 614, 622 , 118 S.Ct. 1604, 1611 , 140 L.Ed.2d 828…
discussed Cited as authority (rule) State v. Amos
La. · 2003 · confidence medium
See Trest v. Cain, 522 U.S. 87, 89 , 118 S.Ct. 478, 480 , 139 L.Ed.2d 444 (1997)("A court of appeals is not 'required' to raise the issue of procedural default sua sponte."); Rosario v. United States, 164 F.3d 729, 732 (2nd Cir.1998)("Having failed to raise the issue before [the district court judge] or in its briefs to this Court, the government ... has forfeited or waived the argument [that defendants procedurally defaulted their claim.]”).
discussed Cited as authority (rule) Brian Jones v. John Keane, Superintendent, Woodbourne Correctional Facility
2d Cir. · 2003 · confidence medium
See Bousley v. United States, 523 U.S. 614, 623 , 118 S.Ct. 1604 , 140 L.Ed.2d 828 (1998) (“ ‘[Futility , cannot constitute cause,’ ” for procedural default because of failure to raise claim on direct review, “ ‘if it means simply that a claim was unacceptable to that particular court at that particular time.’ ”) (quoting Engle v. Isaac, 456 U.S. 107 , 130 n. 35, 102 S.Ct. 1558 , 71 L.Ed.2d 783 (1982) (internal quotation marks in Engle omitted)); Rosario v. United States, 164 F.3d 729, 733 (2d Cir.1998).
examined Cited as authority (rule) Bouyea v. United States (4×) also: Cited "see, e.g."
D. Conn. · 2003 · confidence medium
“Where a criminal defendant has procedurally forfeited his claim by failing to raise it on direct review, the claim may be raised in a § 2255 motion only if the defendant can demonstrate ... cause for failing to raise the issue, and prejudice resulting therefrom.” 1 Rosario v. United States, 164 F.3d 729, 732 (2d Cir.1998).
examined Cited as authority (rule) Bouyer v. United States (4×) also: Cited "see, e.g."
D. Conn. · 2003 · confidence medium
"Where a criminal defendant has procedurally forfeited his claim by failing to raise it on direct review, the claim may be raised in a § 2255 motion only if the defendant can demonstrate ... cause for failing to raise the issue, and prejudice resulting therefrom." [1] Rosario v. United States, 164 F.3d 729, 732 (2d Cir.1998). *409 The reason for this rule is straightforward.
cited Cited as authority (rule) Oelsner v. United States
3rd Cir. · 2003 · confidence medium
E.g., Rosario v. United States, 164 F.3d 729, 732 (2d Cir.1998); United States v. Talk, 158 F.3d 1064, 1067 (10th Cir.1998).
cited Cited as authority (rule) Evans v. Senkowski
E.D.N.Y · 2002 · confidence medium
Rosario v. United States, 164 F.3d 729, 733 (2d Cir.1998), quoting, Bousley v. United States, 523 U.S. 614, 623 , 118 S.Ct. 1604 , 140 L.Ed.2d 828 (1998).
discussed Cited as authority (rule) United States v. Santiago (2×) also: Cited "see"
S.D.N.Y. · 2002 · confidence medium
Rosario v. United States, 164 F.3d 729, 735 (2d Cir.1998) (citing Bailey v. United States, 516 U.S. 137, 144 , 116 S.Ct. 501 ; 133 L.Ed.2d 472 (1995)).
cited Cited as authority (rule) Ida v. United States
S.D.N.Y. · 2002 · confidence medium
Mem. 9-10 (citing Rosario v. United States, 164 F.3d 729, 732 (2d Cir.1998), ce rt. denied, 526 U.S. 1033 , 119 S.Ct. 1284 , 143 L.Ed.2d 376 (1999)). 28 .
discussed Cited as authority (rule) United States v. Willis
5th Cir. · 2001 · confidence medium
See, e.g., Elzy v. United States, 205 F.3d 882, 886 (6th Cir.2000) (noting that it was proper to raise the default sum sponte at the appellate level in part because the procedural default was manifest in the record); Rosario v. United States, 164 F.3d 729, 732-33 (2d Cir.1998) (raising the issue of the defendant’s procedural default sua sponte at the appellate level); Hines v. United States, 971, F.2d 506, 508 (10th Cir.1992) (allowing a district court to raise the procedural default in a § 2255 motion sua sponte, and analogizing it to § 2254’s procedural default rule).
discussed Cited as authority (rule) United States v. Numisgroup Intern. Corp.
E.D.N.Y · 2001 · confidence medium
“Although proof of an express agreement is not required, there must be proof of ‘at least a tacit understanding between the parties to further the violation of the law.’ ” U.S. v. Desena, 260 F.3d 150 , 155 (2d Cir.2001) (quoting U.S. v. Jones, 30 F.3d 276, 282 (2d Cir.1994)). “[S]ince ‘conspiracy by its very nature is a secretive operation,’ the elements of a conspiracy may be established through circumstantial evidence.” U.S. v. Chang An-Lo, 851 F.2d 547 , 554 (2d Cir.1988) (quoting U.S. v. Provenzano, 615 F.2d 37, 45 (2d Cir.1980), cert. denied, 446 U.S. 953 , 100 S.Ct. 2921…
discussed Cited as authority (rule) Kuhali v. Reno (2×) also: Cited "see"
2d Cir. · 2001 · confidence medium
Although we have discretion to raise the issue ourselves, we have emphasized that “appellate courts should not lightly raise the issue of ... procedural default sua sponte.” Id. at 732-33.
Retrieving the full opinion text from the archive…
Antonio ROSARIO; Jose Jeres; Antonio Ramirez, Petitioners-Appellants,
v.
UNITED STATES of America, Respondent-Appellee
Docket 97-2747, 97-2848 and 97-2751.
Court of Appeals for the Second Circuit.
Dec 18, 1998.
164 F.3d 729
1998 U.S. App. LEXIS 32238
Anthony R. Cueto, Pollack, Pollack, Isaac & DeCicco, New York, N.Y., for Petitioner-Appellant Antonio Rosario., James Roth, New York, N.Y., for Petitioner-Appellant Jose Jeres., Arza Rayches Feldman, Roslyn, N.Y., for Petitioner-Appellant Antonio Ramirez., Alexandra A.E. Shapiro, Assistant United States Attorney for the Southern District of New York (Mary Jo White, United States Attorney for the Southern District of New York, Craig A. Stewart, Assistant United States Attorney, of counsel), for Respondent-Appellee.
McLaughlin, Jacobs, Sack.
Cited by 80 opinions  |  Published
Pinpoint authority: bottom 53%

BACKGROUND

McLAUGHLIN, Circuit Judge:

In August 1992, agents of the United States Bureau of Alcohol, Tobacco, and Firearms (“ATF”) learned that crack cocaine was being sold out of Apartment 4B at 54 West 174th Street in the Bronx, New York. The agents provided a confidential government informant (“Cl”) with pre-marked “buy money” to buy cocaine. The Cl entered Apartment 4B and returned five minutes later with a small quantity of crack cocaine.

Three days later, at the behest of ATF officials, the Cl made another purchase at the apartment. The agents then got a search warrant for Apartment 4B. As the agents approached, Antonio Ramirez was exiting the apartment. When the agents identified themselves, Ramirez fled back inside the apartment and slammed the door. Agents maintaining surveillance outside the apartment building spotted Ramirez, Antonio Rosario, and Jose Jeres running down the fire escape from Apartment 4B to Apartment 2B. ATF agents received permission to enter Apartment 2B where they arrested Rainirez, Rosario, and Jeres.

When ATF agents searched Apartment 2B, they discovered cocaine, a wad of currency (including the pre-marked ATF “buy money”), and an Iver Johnson revolver. A search of Apartment 4B uncovered additional narcotics, narcotics paraphernalia, and a Colt .45.

Ramirez, Rosario, and Jeres were indicted in the United States District Court for the Southern District of New York (Sand, /.), for, inter alia, using and carrying firearms in connection with narcotics trafficking, in violation of 18 U.S.C. § 924(c). On December 10, 1992, pursuant to written plea agreements, each defendant pled guilty to all counts of the indictment. Judge Sand later sentenced Jeres to a term of 106 months’ imprisonment, Ramirez to a term of 111 months, and Rosario to a term of 106 months’ incarceration.

Four years later, following the decision of the United States Supreme Court in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), that “use” of a firearm under 18 U.S.C. § 924(c) requires “active employment” of the firearm, Ramirez filed a motion pursuant to 28 U.S.C. § 2255 to vacate his conviction. Rosario and Jeres quickly followed suit. All three claimed that the record did not support their § 924(c) pleas under the new Bailey standard for criminal “use” of a firearm.

On May 28, 1997, Judge Sand held an evidentiary hearing on the § 2255 motions. Relying on his personal observations during the arrest, as well as information obtained from the Cl, ATF agent Robert Cucinelli testified that Rosario and Ramirez had carried firearms during the August 27, 1992 crack cocaine sale. In addition, the government introduced several reports containing information provided by the Cl to Cucinelli immediately after the cocaine sales on August 24, 1992 and August 27, 1992.

[*732] By Opinion and Order dated September 29, 1997, the court denied all three motions. Judge Sand initially determined that Agent Cucinelli’s recitation of information obtained from the Cl constituted hearsay evidence which was not admissible at a § 2255 hearing. Accordingly, Judge Sand expressly declined to consider the hearsay portions of Agent Cucinelli’s testimony. However, Judge Sand believed that the information contained in the defendants’ plea allocutions and Presentence Reports (“PSR”), coupled with Agent Cucinelli’s non-hearsay testimony, provided an adequate factual basis to support each defendant’s conviction. Judge Sand held that: (1) Rosario and Ramirez were “carrying” firearms while the sale of crack cocaine was taking place in violation of § 924(c); and (2) Rosario’s and Ramirez’ visible display of firearms during the narcotics sale was criminally attributable to Jeres, a participant in the criminal conspiracy.

Ramirez, Rosario, and Jeres now appeal, arguing that Judge Sand erred (a) by relying on the hearsay information contained in their PSRs and (b) by finding that there was an adequate factual basis for their § 924(c) convictions.

DISCUSSION

I. Procedural Bar

Significantly, neither Rosario, Ramirez, nor Jeres appealed their convictions following their pleas of guilty. “A motion under § 2255 is not a substitute for an appeal.” United States v. Munoz, 143 F.3d 632, 637 (2d Cir.1998) (citations omitted); see Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 1610, 140 L.Ed.2d 828 (1998) (“And even the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review.”). Where a criminal defendant has procedurally forfeited his claim by failing to raise it on direct review, the claim may be raised in a § 2255 motion only if the defendant can demonstrate either: (1) “cause for failing to raise the issue, and prejudice resulting therefrom,” Douglas v. United States, 13 F.3d 43, 46 (2d Cir.1993); or (2) “actual innocence.” Bousley, 118 S.Ct. at 1611.

The defendants, however, are not the only ones who have to hurdle the doctrine of forfeiture or waiver. Having failed to raise the issue of defendants’ procedural default either before Judge Sand or in its briefs to this Court, the government too has forfeited or waived the argument. See, e.g., Trest v. Cain, 522 U.S. 87, 118 S.Ct. 478, 480, 139 L.Ed.2d 444 (1997); United States v. Canady, 126 F.3d 352, 359-60 (2d Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1092, 140 L.Ed.2d 148 (1998). We may, nevertheless, raise these issues sua sponte. See, e.g., United States v. Talk, 158 F.3d 1064, 1067 (10th Cir.1998); see also Washington v. James, 996 F.2d 1442, 1448 (2d Cir.1993) (raising defendant’s procedural default sua sponte on state prisoner’s § 2254 petition). We believe that consideration of these issues is appropriate here for three reasons.

First, it is necessary to protect the finality of federal criminal judgments. See United States v. Allen, 16 F.3d 377, 379 n. 2 (10th Cir.1994) (“the important interests served by the principle of finality [of criminal judgments] cannot always be foreclosed by waiver”); see also United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Raising the issue of defendants’ procedural default is particularly appropriate where, as here, the movants pled guilty. We recognize that “the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas.” United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979); see Bousley, 118 S.Ct. at 1610. “The impact of inroads on finality is greatest in the context of guilty pleas because the vast majority of criminal convictions result from such pleas and because the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea.” Lucas v. United States, 963 F.2d 8, 14 (2d Cir.1992) (internal quotation omitted).

In addition, the unique circumstances of this ease compel the conclusion that the government was not blameworthy in failing to raise this issue. Because dictum in Triestman v. United States, 124 F.3d 361, 369 n. 8[*733] (2d Cir.1997), indicated that a § 2255 mov-ant’s Bailey claim could easily hurdle a procedural bar challenge, the government may well have concluded that it would be subject to criticism for raising a frivolous argument. It was only in May 1998 — one month after the government submitted its brief in this appeal — that the Supreme Court suggested in Bousley that the Triestman dictum might be incorrect. See De Jesus v. United States, 161 F.3d 99, 102-03 (2d Cir.1998).

Finally, the procedural default is manifest from the record and, hence, resolution of this defense does not require further fact-finding. Thus, additional scarce judicial resources need not be expended by remanding this case to the district court. See Washington, 996 F.2d at 1449.

Granted, appellate courts should not lightly raise the issue of a defendant’s procedural default sua sponte. We are aware that prisoners seeking habeas corpus relief lack the resources available to the government. We should hesitate to lend the weight of the judiciary to this already uneven fight, lest we be east in the role of a second line of defense, protecting government prosecutors from their errors. We are satisfied, however, that this appeal warrants the exercise of our inherent power to raise the previously unaddressed issue. [1] We now turn to it.

A. Cause and Prejudice

Ramirez, Rosario, and Jeres cannot now show “cause” for their failure to raise their claims on direct appeal. True it is that in Triestman, 124 F.3d at 369 n. 8, we indicated in dictum that a § 2255 movant could be forgiven for his failure to challenge on appeal the loose pre-Bailey definition of “use” under § 924(c). This was because “the broad definition of ‘use’ that was subsequently rejected by the Supreme Court in Bailey was well-established in this circuit” and an appeal would have been doomed. Id. As we recently noted in De Jesus, however, the Supreme Court’s decision in Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), rejects the Triest-man dictum. See De Jesus, 161 F.3d at 102-03. In Bousley, the § 2255 movant made the same argument that Ramirez, Rosario, and Jeres now urge, i.e., the guilty plea to “using” a firearm was not knowing and voluntary because at the plea allocution the district court did not provide correct information about what constituted “use.” 118 S.Ct. at 1608, 1611. The Bousley defendant contended that: (1) “the legal basis for his claim was not reasonably available to counsel at the time his plea was entered,” and (2) “before Bailey, any attempt to attack [his] guilty plea would have been futile.” Id. at 1611 (quotations omitted).

The Supreme Court was not impressed by the argument that his claim regarding “use” was novel. The Court noted that “at the time of [movant’s] plea, the Federal Reporters were replete with cases involving challenges to the notion that ‘use’ is synonymous with mere ‘possession.’ ” Id. The Court also rejected the fundamental premise that it would have been futile to raise the claim before Bailey, reasoning that “ ‘futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time.’ ” Id. (quoting Engle v. Isaac, 456 U.S. 107, 130 n. 35, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)); see De Jesus, 161 F.3d at 102-03.

B. Actual Innocence

None of the defendants can establish “actual innocence.” “To establish actual innocence, [the movant] must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Bousley, 118 S.Ct. at 1611 (internal quotation marks omitted). This means “factual innocence, not mere legal insufficiency.” Id.

[*734] 1. Criviinal Liability under Section 92i(c)

Section 924(c) is violated if the defendant either used or carried a firearm during and in relation to drug trafficking or a crime of violence. See 18 U.S.C. § 924(c). A defendant “carries” a firearm under § 924(c) if “during and in relation to the drug trafficking crime, [the defendant] either (1) had physical possession of the firearm, ... or (2) moved the firearm from one place to another.” Canady, 126 F.3d at 358 (citations omitted). Similarly, a conviction under the “use” prong requires the government to establish “active employment of the firearm.” Bailey, 516 U.S. at 144, 116 S.Ct. 501. “Active employment” includes, inter alia, “brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire” the weapon. Id. at 148, 116 S.Ct. 501. However, a “defendant cannot be charged under § 924(c)(1) merely for storing a weapon near drugs or drug proceeds,” or for “placement of a firearm to provide a sense of security or to embolden.” Id. at 149, 116 S.Ct. 501.

(a). Rosario and Ramirez

Rosario and Ramirez clearly cannot show that they are “actually innocent” of their § 924 convictions. Rosario admitted during his plea allocution that he “carried]” a firearm “[i]n connection with selling crack.” Similarly, Ramirez, in response to Judge Sand’s questioning during his plea allocution, stated that he “use[d] and earr[ied]” a Colt .45 in connection with the sale of drugs. In the glaring light of these inculpatory statements, any reasonable juror could only conclude that both Rosario and Ramirez “carried” firearms in violation of § 924(c). See Salas v. United States, 139 F.3d 322, 325 (2d Cir.1998), cert. denied, — U.S. -, 118 S.Ct. 2377, 141 L.Ed.2d 744 (1998); see also Muscarello v. United States, — U.S. -, -, 118 S.Ct. 1911, 1915, 141 L.Ed.2d 111 (1998)(“[n]o one doubts that one who bears arms on his person ‘carries a weapon’ ”).

(b). Jeres

Jeres’ case is somewhat different but he too cannot show that he is actually innocent of his § 924(c) conviction. A reasonable jury would find that, under a Pinkerton theory of liability, the facts admitted by the movants at their plea allocutions support the criminal liability of all three defendants for using or carrying a firearm in violation of § 924(c).

Under the test for co-conspirator liability announced in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), “a coconspirator who does not directly commit a substantive offense may be liable for that offense if it was committed by another coconspirator in furtherance of the conspiracy and was a reasonably foreseeable consequence of the conspiratorial agreement.” United States v. Pimentel, 83 F.3d 55, 58 (2d Cir.1996) (citations omitted). If a firearm “was carried by, or was within reach . of, one defendant but not another, that other defendant may be found liable for carrying the gun ... on a Pinkerton theory.” United States v. Giraldo, 80 F.3d 667, 676 (2d Cir.1996) (citations omitted). Thus, a defendant may be guilty of a § 924(c) violation under a Pinkerton theory if: (1) the defendant conspired to commit a crime involving violence or drug trafficking; (2) the § 924(c) offense was committed in furtherance of the conspiracy; and (3) the offense was a reasonably foreseeable consequence of an act furthering the unlawful agreement. See United States v. Masotto, 73 F.3d 1233, 1241 (2d Cir.1996); United States v. Romero, 897 F.2d 47, 51 (2d Cir.1990). Jeres’ statements during his plea allocution, as well as the plea allocutions of his co-conspirators and the non-hearsay testimony of Agent Cucinelli at the § 2255 evi-dentiary hearing, provide an ample basis under Pinkerton to conclude that Jeres cannot show that he is “actually innocent.”

The existence of a conspiracy is obvious. When Judge Sand asked Jeres whether “[i]n connection with your sale of drugs, were there other people with whom you were engaged in drug sales?”, Jeres said that both Rosario and Ramirez were involved in the drug transactions. Ramirez and Rosario also admitted during their plea allocutions that they were participants, along with Jeres, in a plan to sell crack cocaine. This evidence clearly demonstrates “a tacit understanding [between the conspirators] to carry out the[*735] prohibited conduct.” United States v. Wardy, 777 F.2d 101, 107 (2d Cir.1985).

Similarly, it cannot fairly be doubted that Rosario and Ramirez committed the § 924(c) violations in furtherance of the drug conspiracy. Rosario and Ramirez admitted during their plea allocutions that they carried guns during the cocaine sales. Jeres himself admitted that a gun was present during the drug transactions. Carrying a firearm during the drug sale easily suffices to establish that the firearm violation was committed in furtherance of the drug conspiracy. See Salas, 139 F.3d at 325; Pimentel, 83 F.3d at 58-59.

Finally, Ramirez’ and Rosario’s carrying of firearms during the crack cocaine sales was reasonably foreseeable. Indeed, as already noted, Jeres acknowledged at his plea allocution that there “was a gun” present at the August 27th sale. Agent Cueinelli recovered a loaded Iver Johnson revolver in the apartment where Rosario, Ramirez, and Jeres were apprehended after their futile attempt to evade arrest. A loaded Colt .45 was discovered in the apartment where the drug deals occurred. Recognizing that in the drug culture, “firearms are the tools of the trade,” United States v. Wilson, 105 F.3d 219, 221 (5th Cir.), cert. denied, — U.S. -, 118 S.Ct. 133, 139 L.Ed.2d 82 (1997), any reasonable juror would conclude that the § 924(c) violations were a reasonably foreseeable concomitant to the drug sales. See Romero, 897 F.2d at 51-52; United States v. Bruno, 873 F.2d 555, 560 (2d Cir.1989).

II. Factual Basis Supporting Their Guilty Pleas

Upon an appeal from the denial of a § 2255 motion, we review the district court’s factual findings for clear error and its legal conclusions de novo. See Scanio v. United States, 37 F.3d 858, 859-60 (2d Cir.1994).

Even if Rosario’s, Ramirez’, and Jeres’ claims were not procedurally barred, Judge Sand properly found that there was an adequate factual basis for their § 924(c) pleas. [2]

A. Rosario and Ramirez

Judge Sand found sufficient evidence for Ramirez’ and Rosario’s pleas in that: (1) the PSRs indicated that both Rosario and Ramirez were carrying firearms during the August 27, 1992 cocaine sale; (2) Rosario stated during his plea allocution that he “carrfied]” a firearm “[i]n connection with selling crack”; and (3) Ramirez, in response to Judge Sand’s questioning during the plea allocution, stated that he “use[d] and carr[ied]” a Colt .45 in connection with the sale of drugs. Ramirez and Rosario contend that Judge Sand’s reliance on their plea allocutions and the PSRs was misplaced.

1. Plea Allocutions

Rosario and Ramirez contend that their admissions during their plea allocutions that they “carried” firearms do not establish that they “carried” firearms within the meaning of § 924(c). They assert that, at the time of their pleas, the word “carry” was synonymous with “use” under this Circuit’s pre- Bailey interpretation of § 924(c). We are not convinced by their linguistic legerdemain.

First, the meaning of “carry” under § 924(c) was, at the time of Rosario’s and Ramirez’ pleas, consistent with the commonsense meaning of the word and was not synonymous with “use.” The common-sense meaning of carry is “1. to take or support from one place to another; convey; transport ... 2. to wear, hold, or have around one.” The Random House Dictionary of the English Language (2d ed.1987); see Canady, 126 F.3d at 358 (common-sense and dictionary definitions of “carry” suggest that object is held on one’s person or transported[*736] from one place to another); see also Muscarello, 118 S.Ct. at 1914-16 (discussing “ordinary English” meaning of “carry” under § 924(c)). In 1993, the year that Ramirez and Rosario entered their pleas, this Court defined “carry” under § 924(e) to require “at least a showing that the gun is within reach during the commission of the drug offense.” United States v. Feliz-Cordero, 859 F.2d 250, 253 (2d Cir.1988). Rosario’s and Ramirez’ statements during their plea allocutions that they “carried” firearms should be given the common-sense meaning of the term, a meaning sufficient to justify Judge Sand’s denial of their motions. See Salas, 139 F.3d at 324; see also United States v. Muscarello, 106 F.3d 636, 639 (5th Cir.1997) (per curiam) (rejecting identical argument as a “legal non sequitur”), aff'd, — U.S. -, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998).

B. Jeres

Judge Sand, relying on the PSRs and Jeres’ plea allocution, held that the evidence supported his conviction under § 924(c) as a eoconspirator. Jeres contends that the statements in his plea allocution do not establish criminal liability. We disagree.

The information adduced during the plea allocutions is sufficient to sustain Jeres’ conviction under a Pinkerton theory. During Jeres’ allocution, Judge Sand asked him: “Tell me in your own words, Mr. Jeres, what you did that leads you to believe that you are guilty of [using and carrying firearms in relation to a drag trafficking crime].” Jeres responded that he “sold crack and there was a gun and there was a witness.” He also admitted that there were both a Colt .45 and an Iver Johnson revolver involved in the drag transaction. Jeres’ admissions, in light of Ramirez’ and Rosario’s admissions that they were carrying guns during the crack sales, are sufficient on a Pinkerton theory of liability to establish that Jeres too was guilty of carrying a firearm under § 924(c). See, e.g., Pimentel, 83 F.3d at 58-59.

C. Information in the PSRs

All three defendants contend that Judge Sand improperly relied on hearsay statements contained in the PSRs about the Cl’s observations of the guns carried by Rosario and Ramirez. They argue that the Due Process Clause and the rules governing proceedings under § 2255 prohibit reliance on hearsay to sustain their convictions. We need not reach this issue because the movants’ plea allocutions, in and of themselves, provide an adequate factual basis to support their guilty pleas.

CONCLUSION

We have considered all the arguments raised by movants and find them to be without merit. Accordingly, the judgment of the district court is Affirmed.

1

. Judge Jacob’s concurrence suggests that we are applying a looser standard to forgive a government’s failure to raise an argument than we apply when the defendant commits the identical sin. The difficulty with this argument is that the sins are different. In the defendants’ case, they took no appeal whatsoever. In the government's case, the government at all times vigorously contested the defendants' habeas motion, but neglected to raise a single point-for what we conclude was an understandable reason. There is no inequity here. Indeed, the surest way to inequity is to treat unequal thing equally.

2

. Judge Jacobs concurs in the result solely for the reasons set forth in this section of the opinion. In this case, the defendants failed to raise a Bailey argument on direct appeal (perhaps because of this Court’s repeated rejections' of such an argument at the time), and therefore procedurally defaulted the issue. The government, however, failed to address the defendants’ procedural default (perhaps, as suggested supra, because of this Court's dictum in Triestman v. United States, 124 F.3d 361, 369 n. 8 (2d Cir.1997)), and therefore waived the argument. Judge Jacobs is unwilling to enforce the defendants' default while indulging the government’s waiver when both sets of circumstances essentially mirror each other, and the waiver cancels out the default.