U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog

Civil Procedure, Criminal and Immigration Matters

Rosario v. Ercole, No. 08-5521, involved a murder prosecution in which the trial court denied petitioner's habeas petition.  The court of appeals affirmed, on the ground that the trial court conducted a thorough hearing, assessing the credibility of the potential witnesses first-hand, in denying petitioner's ineffective assistance claim, and petitioner did not rebut those findings by clear and convincing evidence.

Shabaj v. Holder, No. 09-0558, concerned a petition for review of the BIA's order removing petitioner from the U.S.  The Second Circuit denied the petition, on the ground that petitioner's removal order was premised on his entry as an Italian national under the Visa Waiver Program, which waived any defense to removal other than asylum, and his removal was properly administered under that program.

Lora v. O'Heaney, No. 09-3690, involved a 42 U.S.C. section 1983 action based on abuse plaintiff allegedly suffered while in a correctional facility.  The Second Circuit dismissed defendants' appeal from the denial of qualified immunity, on the grounds that 1) the appeal from an untimely motion for reconsideration pursuant to Rule 59(e) of the Federal Rules of Civil Procedure did not bring up for review the merits of the underlying order; and 2) the appeal from a denial of a motion for reconsideration did not satisfy the requirements of the collateral order doctrine.

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