Fernandez v. United States

Opinion

MAHER & PITTELL, LLP Attorneys-At-Law Randa D. Maher Jeffrey G. Pittell 10 Bond Street Tel (516) 487-7460 Suite 389 Fax (516) 977-3003 Great Neck, NY 11021 randalaw@optonline.net November 8, 2021 BY ECF The request is denied. I ruled on the 2255 Motion because of a change in law based on Hon. Alvin K. Hellerstein United States v. Davis, 139 S. Ct. 2319 (2019). United States District Judge There is not a similar basis for adding a claim Daniel Patrick Moynihan U.S. Courthouse challenging the jury charged referenced in 500 Pearl Street - Room 1050 footnote 4 of the Opinion and Order. New York, NY 10007 /s/ Alvin K. Hellerstein November 12, 2021 Re: Joe Fernandez v. USA; USA v. Joe Fernandez 20-cv-5539 (AKH); S2 10-cr-863-05 (AKH) Dear Judge Hellerstein: We represent the Petitioner-Defendant, Mr. Joe Fernandez, on his motion to vacate, set aside or correct his sentence, pursuant to 28 U.S.C. § 2255 (the “2255 Motion”) (see 20-cv-5539, ECF Doc. 1). On November 3, 2021, this Court filed an “Opinion and Order Granting Motion to Vacate Sentence on Count Two of Indictment” (the “Opinion and Order”) (see 10-cr-863, ECF Doc. 245). The Opinion and Order indicate that an Amended Judgment will be filed striking the consecutive life sentence imposed under Count Two. We respectfully request that this Court defer filing an Amended Judgment until December 2, 2021, as we intend to file an application, on Mr. Fernandez’s behalf, to amend the 2255 Motion. We make this request as we seek to add a claim, as noted in footnote 4 of the Opinion and Order, which challenges the jury charge on inferences that can be drawn from an uncalled witness, and a claim of actual innocence. Thank you in advance for considering this request. Respectfully submitted, /s/ Randa D. Maher Randa D. Maher cc: AUSA Russell Capone, by ECF Mr. Joe Fernandez, by U.S. mail