Lassend v. United States

D. Massachusetts

Lassend v. United States

265 F. Supp. 3d 103

CourtDistrict Court, D. Massachusetts

DecidedSeptember 11, 2017

DocketCriminal No. 10-40019-FDS

StatusPublished

Cited by2 cases

This text of 265 F. Supp. 3d 103 (Lassend v. United States) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lassend v. United States, 265 F. Supp. 3d 103 (D. Mass. 2017).

Pincite

Opinion

MEMORANDUM AND ORDER ON MOTION FOR A CERTIFICATE OF APPEALABILITY

SAYLOR, J.

On October 14, 2014, Kirk Lassend filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. The Court denied that petition on July 11, 2017, Las-send now seeks a certificate of appealability (“COA”) in order to appeal the denial of his habeas petition. For the reasons that follow, that motion will be granted.

. To appeal the final order in a proceeding instituted under 28 U.S.C. § 2255, the petitioner. must first obtain a COA from a circuit justice or a district court. See 28 U.S.C. § 2253(c). A COA will issue only-if the petitioner “has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2). This standard is satisfied by “demonstrating that jurists of reason could disagree with the district court’s resolution of [petitioner’s] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)).

Petitioner contends that his sentence under the Armed Career Criminar Act, 18 U.S.C. § 924(e), which was based on a finding that he had three.prior convictions for “violent felonies” under the force clause of the ACCA, violates the constitution in light of the Supreme Court’s decision in Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Petitioner’s contention, while ultimately rejected by this Court, represents a substantial showing of the denial of a constitutional right. Further, a reasonable jurist could disagree with the Court’s conclusions.

Accordingly, a certificate of appealability is GRANTED as to petitioner’s claim that his sentence under the ACCA was imposed in violation of the Constitution.

So Ordered.

Free access — add to your briefcase to read the full text and ask questions with AI

MEMORANDUM AND ORDER ON MOTION FOR A CERTIFICATE OF APPEALABILITY

SAYLOR, J.

On October 14, 2014, Kirk Lassend filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. The Court denied that petition on July 11, 2017, Las-send now seeks a certificate of appealability (“COA”) in order to appeal the denial of his habeas petition. For the reasons that follow, that motion will be granted.

. To appeal the final order in a proceeding instituted under 28 U.S.C. § 2255, the petitioner. must first obtain a COA from a circuit justice or a district court. See 28 U.S.C. § 2253(c). A COA will issue only-if the petitioner “has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2). This standard is satisfied by “demonstrating that jurists of reason could disagree with the district court’s resolution of [petitioner’s] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)).

Petitioner contends that his sentence under the Armed Career Criminar Act, 18 U.S.C. § 924(e), which was based on a finding that he had three.prior convictions for “violent felonies” under the force clause of the ACCA, violates the constitution in light of the Supreme Court’s decision in Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Petitioner’s contention, while ultimately rejected by this Court, represents a substantial showing of the denial of a constitutional right. Further, a reasonable jurist could disagree with the Court’s conclusions.

Accordingly, a certificate of appealability is GRANTED as to petitioner’s claim that his sentence under the ACCA was imposed in violation of the Constitution.

So Ordered.

Cite This Page — Counsel Stack

Bluebook (online)

265 F. Supp. 3d 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lassend-v-united-states-mad-2017.

Opinion

Related

Cite This Page — Counsel Stack