Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

Case 3:00-cr-00140-EBB

Document 44

Filed 12/07/2004

Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA v. HYDAR HUSMAN aka "Indian" Criminal No. 3:00CR140(EBB)

December 6, 2004

UNITED STATES' RESPONSE TO THE DEFENDANT'S MOTION TO VACATE & CORRECT SENTENCING On or about November 24, 2004, the defendant filed a motion pursuant to 28 U.S.C. § 2255. The defendant claims that his sentence should be vacated because of the Supreme Court's decision in Blakely v. Washington, 124 S. Ct. 2531 (2004). On March 5, 2002, the Court imposed sentence on the defendant. On June 23, 2003, the defendant filed a motion pursuant to Section 2255. On June 27, 2003, the Court denied the motion. On July 8, 2003, the defendant renewed his motion, and again it was denied. Thus, the defendant's present motion is a second or successive motion. See Villanueva v. United States, 346 F.3d 55, 58 (2d Cir. 2003) ("a habeas or § 2255 petition that is properly dismissed as time-barred under AEDPA constitutes an adjudication on the merits for successive purposes.") Before a defendant may file a second or successive motion pursuant to Section 2255, he must obtain certification from the Court of Appeals. See 28 U.S.C. § 2255, ¶ 8. The Second Circuit recently held that it will not issue such certification for petitions raising Blakely issues, unless and until the Supreme Court makes Blakely retroactive on collateral review. Carmona v. United States, Doc. No. 04-4994 (2d Cir. Nov. 29, 2004) (per curiam).

Case 3:00-cr-00140-EBB

Document 44

Filed 12/07/2004

Page 2 of 2

Accordingly, the defendant's petition should be denied because (a) he has failed to obtain certification from the Second Circuit as required; and (b) such certification will not be issued, absent further decision by the Supreme Court. Respectfully submitted, KEVIN J. O'CONNOR UNITED STATES ATTORNEY

DAVID A. RING ASSISTANT U. S. ATTORNEY 157 Church Street P.O. Box 1824 New Haven, Connecticut 06510 (203) 821-3700 Federal Bar No. CT14362

CERTIFICATION OF SERVICE This is to certify that the within and foregoing has been sent via first-class mail this ___th day of December to:

Brian J. Woolf, Esq. Law Offices 50 Founders Plaza East Hartford, Connecticut 06108

DAVID A. RING ASSISTANT UNITED STATES ATTORNEY

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