Dewar v. United States of America

Dewar v. United States of America

Plaintiff:	Donahue Dewar
Defendant:	United States of America
Case Number:	7:2017cv02330
Filed:	March 30, 2017
Court:	US District Court for the Southern District of New York
Office:	White Plains Office
Presiding Judge:	Kenneth M. Karas
Nature of Suit:	Motions to Vacate Sentence
Cause of Action:	28 U.S.C. § 2255
Jury Demanded By:	None

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Date Filed	Document Text
April 4, 2020	Filing 36 ORDER: For the reasons discussed above, the Court dismisses Petitioner's Petition for Writ of Habeas Corpus on every ground except the allegation that counselnamely, Barketwas ineffective for failing to communicate whether a plea offer had b een extended by the Government. As neither the Government nor the Court has the records available to confirm whether a plea offer was given at the stage of the case during which Barket was involved, this Court cannot confirm that counsel was not c onstitutionally ineffective on this ground. Accordingly, although the Petition is dismissed on all the other grounds, it is hereby ORDERED that the Government contact Bruce Barket, Esq. and notify him of this Order; ORDERED that Bruce Barket, Esq. turn over his case file regarding Petitioner's underlying federal criminal case to the Government within 30 days, at which point, the Government should also provide a copy of the files to Petitioner; ORDERED that the Government, within 30 day s of receipt of the case file, submit a supplemental memorandum to the Court summarizing the contents of the file and demonstrating whether they are indicative of any constitutionally ineffective assistance of counsel; ORDERED that Petitioner must submit any response to the Government's memorandum within 30 days of receiving such memorandum; and ORDERED that the Government submit any reply to Petitioner's memorandum within 14 days of receiving it. Because Petitioner has not yet m ade a substantial showing of the denial of a constitutional right and because the Petition has not yet been dismissed in full, a Certificate of Appealability shall not be issued, see 28 U.S.C. § 2253(c)(2); Lucidore v. N.Y. State Div. of Paro le, 209 F.3d 107, 11112 (2d Cir. 2000), and the Court further certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this judgment on the merits would not be taken in good faith, see Coppedge v. United States, 369 U.S. 438, 445 (1 962) ("We consider a defendant's good faith...demonstrated when he seeks appellate review of any issue not frivolous."); Burda Media Inc. v. Blumenberg, 731 F. Supp. 2d 321, 32223 (S.D.N.Y. 2010) (citing Coppedge and finding that an appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith). SO ORDERED. (Signed by Judge Kenneth M. Karas on 4/3/2020) (jca)

Date Filed

Document Text

April 4, 2020

Filing 36 ORDER: For the reasons discussed above, the Court dismisses Petitioner's Petition for Writ of Habeas Corpus on every ground except the allegation that counselnamely, Barketwas ineffective for failing to communicate whether a plea offer had b een extended by the Government. As neither the Government nor the Court has the records available to confirm whether a plea offer was given at the stage of the case during which Barket was involved, this Court cannot confirm that counsel was not c onstitutionally ineffective on this ground. Accordingly, although the Petition is dismissed on all the other grounds, it is hereby ORDERED that the Government contact Bruce Barket, Esq. and notify him of this Order; ORDERED that Bruce Barket, Esq. turn over his case file regarding Petitioner's underlying federal criminal case to the Government within 30 days, at which point, the Government should also provide a copy of the files to Petitioner; ORDERED that the Government, within 30 day s of receipt of the case file, submit a supplemental memorandum to the Court summarizing the contents of the file and demonstrating whether they are indicative of any constitutionally ineffective assistance of counsel; ORDERED that Petitioner must submit any response to the Government's memorandum within 30 days of receiving such memorandum; and ORDERED that the Government submit any reply to Petitioner's memorandum within 14 days of receiving it. Because Petitioner has not yet m ade a substantial showing of the denial of a constitutional right and because the Petition has not yet been dismissed in full, a Certificate of Appealability shall not be issued, see 28 U.S.C. § 2253(c)(2); Lucidore v. N.Y. State Div. of Paro le, 209 F.3d 107, 11112 (2d Cir. 2000), and the Court further certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this judgment on the merits would not be taken in good faith, see Coppedge v. United States, 369 U.S. 438, 445 (1 962) ("We consider a defendant's good faith...demonstrated when he seeks appellate review of any issue not frivolous."); Burda Media Inc. v. Blumenberg, 731 F. Supp. 2d 321, 32223 (S.D.N.Y. 2010) (citing Coppedge and finding that an appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith). SO ORDERED. (Signed by Judge Kenneth M. Karas on 4/3/2020) (jca)

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