United States v. Cuney

• Court: Court of Appeals for the Second Circuit
• Decided: June 6, 2025
• Docket: 24-592-cr
• Status: Unpublished

Opinion

24-592-cr United States v. Cuney

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER“). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of June, two thousand twenty-five.

PRESENT: AMALYA L. KEARSE, DENNIS JACOBS, RAYMOND J. LOHIER, JR., Circuit Judges. ------------------------------------------------------------------ UNITED STATES OF AMERICA,

Appellee,

v. No. 24-592-cr

JONATHAN CUNEY,

Defendant-Appellant. ------------------------------------------------------------------ FOR APPELLEE: Kingdar Prussien, Nathan Rehn, Assistant United States Attorneys, for Edward Y. Kim, Acting United States Attorney for the Southern District of New York, New York, NY

FOR APPELLANT: Jonathan Cuney, pro se, Port Ewing, NY

Appeal from an order of the United States District Court for the Southern

District of New York (Vincent L. Briccetti, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the order of the District Court is AFFIRMED.

Jonathan Cuney, proceeding pro se, appeals from a February 20, 2024 order

of the United States District Court for the Southern District of New York

(Briccetti, J.) denying his petition for a writ of error coram nobis. Cuney seeks to

vacate his 2015 convictions for selling firearms with obliterated serial numbers,

in violation of 18 U.S.C. § 922(k), and selling firearms to individuals without

required permits or documentation in violation of state law, in violation of 18

U.S.C. § 922(b)(2). Cuney did not file a direct appeal or a petition for habeas

corpus relief under 28 U.S.C. § 2255 before filing this coram nobis petition in 2022.

We assume the parties’ familiarity with the underlying facts and the record of

2 prior proceedings, to which we refer only as necessary to explain our decision to

affirm.

We review de novo whether the District Court applied the proper coram

nobis standard, and review for abuse of discretion its denial of the writ on the

merits. See Doe v. United States, 915 F.3d 905, 909 (2d Cir. 2019). “The writ of

error coram nobis is an extraordinary remedy that issues only in extreme cases.”

United States v. Rutigliano, 887 F.3d 98, 108 (2d Cir. 2018) (quotation marks

omitted). As the District Court understood, “[t]o secure coram nobis relief, a

petitioner must show that (1) there are circumstances compelling such action to

achieve justice, (2) sound reasons exist for failure to seek appropriate earlier

relief, and (3) the petitioner continues to suffer legal consequences from his

conviction that may be remedied by granting of the writ.” Id. (quotation marks

omitted).

The District Court’s ruling that Cuney failed to provide sound reasons for

his nearly seven-year delay in seeking relief was not an abuse of discretion.

Cuney claims that he failed to seek relief earlier because his lawyer misadvised

him about the consequences of his guilty plea and mistakenly counseled that he

could not file a direct appeal or a § 2255 motion. The record belies both claims.

3 To the extent Cuney’s argument rests on general advice he received from counsel

about the appeal waiver in his plea agreement, counsel would have been correct

to inform Cuney of the consequences of that waiver on his ability to appeal or

collaterally attack his convictions or sentence. At his 2015 plea allocution,

Cuney confirmed that he understood that he would be unable to own firearms or

operate as a licensed firearms dealer as a result of his guilty plea. Later at

sentencing, Cuney acknowledged that his career as a licensed firearms dealer

was over; indeed, he relied on that fact to ask for leniency. In addition, the

District Court specifically advised Cuney that he had the right to appeal his

sentence subject to any limitations contained in his plea agreement. The plain

terms of the plea agreement did not prevent Cuney from asserting an ineffective

assistance of counsel claim on appeal or collateral review.

In the alternative, Cuney asserts that he failed to seek earlier relief because

he could not have raised his Second Amendment challenges to the

constitutionality of 18 U.S.C. §§ 922(k) and 922(b)(2) until after the Supreme

Court’s 2022 decision in New York State Rifle & Pistol Association, Inc. v. Bruen, 597

U.S. 1 (2022). We understand this argument to be that Cuney could not have

made his constitutional challenges until after Bruen specifically required that

4 governments identify historical analogues to modern firearms regulations. The

District Court did not err in rejecting this argument. Second Amendment

challenges to federal firearms statutes, including challenges that draw on history

and tradition, were available and indeed raised in other cases well before Bruen

based on the Supreme Court’s 2008 decision in District of Columbia v. Heller, 554

U.S. 570 (2008). See United States v. Marzzarella, 614 F.3d 85, 91 (3d Cir. 2010)

(applying “the historical approach Heller used to define the scope of the [Second

Amendment] right” in a challenge to § 922(k)). The Supreme Court’s historical

approach in Bruen merely followed “the course charted by Heller.” Bruen, 597

U.S. at 27. Cuney thus could have argued pre-Bruen that the statutes under

which he was convicted lacked any historical precedent.

For these reasons, the District Court’s decision that Cuney lacked “sound

reasons” for his delay was not an abuse of discretion. Rutigliano, 887 F.3d at 108

(quotation marks omitted). Because we affirm the District Court’s order on this

basis alone, we need not reach the merits of Cuney’s coram nobis petition.

5 We have considered Cuney’s remaining arguments and conclude that they

are without merit. For the foregoing reasons, the order of the District Court is

AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court