United States of America v. Boyd (Kelvin Burden)
Filing
OPINION, Concurring, by judge ALK, FILED.[2060568] [15-1080, 15-1183]
Case 15-1080, Document 170, 06/19/2017, 2060568, Page1 of 2
15‐1080 (L)
United States v. Burden
KEARSE, Circuit Judge, concurring:
I concur in the majority opinion, although I find it difficult to interpret the
stipulations in which these federal habeas corpus petitioners agreed to forgo
review of their new sentences as not encompassing all facets of their new
sentences. Each petitioner agreed that:
[I]f the Court adopts this stipulation and imposes an incarceration
term within the agreed‐upon guideline range of 262–365 months’
incarceration, the petitioner waives and gives up his right to appeal
and/or collaterally attack any alleged error in connection with the
re‐sentencing itself and waives and gives up any right to raise any
claim on direct appeal or collateral attack related to his remaining,
underlying convictions or anything that occurred in this case prior
to the re‐sentencing itself . . . .
(Emphases added.)
I regard this language—“any alleged error in connection with the re‐
sentencing” and “anything that occurred in this case prior to the re‐
sentencing”—as encompassing everything in connection with petitioners’
resentencings and everything in the case that preceded their resentencings.
However, because in some cases involving stipulations whose language was
slightly less broad, see, e.g., United States v. Cardona, 612 F. App’x 622 (2d Cir.
Case 15-1080, Document 170, 06/19/2017, 2060568, Page2 of 2
2015); United States v. Tourloukis, 558 F. App’x 112, 113, 115 (2d Cir. 2014), we
have found no waiver as to unmentioned aspects of the sentence, I do not
dissent.
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