Latest 2 Cases: Ottey v. Barr (Criminal Law), Davidson v. Desai (Criminal Law)

Trump’s Statue Garden

MICHAEL C. DORF

Cornell law professor Michael C. Dorf comments on a recent Executive Order issued by President Trump calling for the creation of a “National Garden of American Heroes.” Dorf argues that we should recognize the Executive Order for the distraction that it mostly is and points out some of the Order’s fallacies, ambiguities, and inconsistencies.

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Ottey v. Barr

Docket: 18-834

Opinion Date: July 7, 2020

Judge: Amalya Lyle Kearse

Areas of Law: Criminal Law, Immigration Law

In petition No. 18-834, petitioner contends principally that the BIA erred (a) in rejecting his challenge to the IJ's ruling that he failed to carry his burden of showing his procedurally regular admission to the United States, (b) in rejecting his contention that he was denied due process by the IJ's evidentiary rulings minimizing or curtailing evidence to show his procedurally regular admission, and (c) in denying his motion to reopen the proceeding to present newly discovered evidence. In petition No. 19-737, petitioner contends that the BIA erred in rejecting his contention that intervening legal authority requires the conclusion that criminal possession of stolen property was not a crime involving moral turpitude at the time of his conviction. The Second Circuit denied so much of Petition No 18-834 as contends that petitioner was denied due process. The court dismissed the remainder of that petition for lack of jurisdiction. In regard to Petition No. 19-737, the court held that there was no error in the Board's determination that petitioner's conviction for criminal possession of stolen property was a crime involving moral turpitude. Furthermore, the Board did not err by rejecting petitioner's motion to reopen removal proceedings based on petitioner's claim of an intervening change in the law. Therefore, the court denied the petition in No. 19-737.

Davidson v. Desai

Docket: 19-280

Opinion Date: July 7, 2020

Judge: Menashi

Areas of Law: Criminal Law

Plaintiff filed suit alleging claims of deliberate indifference by prison officials to his medical conditions while he was incarcerated in a New York state prison. At the time of trial, plaintiff was on parole and asked the district court to order the New York Board of Parole to allow him to attend his trial in Buffalo and for the district court to pay for his travel. The Second Circuit held that although a parolee has no constitutional right to attend his own civil trial, a district court does have the authority to compel a parolee's attendance by issuing a writ of habeas corpus ad testificandum pursuant to 28 U.S.C. 2241(c)(5). The court explained that plaintiff did not seek such a writ from the district court and the relief he did request differed significantly from that provided by the writ. Therefore, the court reviewed only for plain error and held that the district court did not plainly err in not issuing the writ. The court also held that, even if plaintiff's request were construed as a petition for the writ, the court would still affirm because plaintiff did not not demonstrate that issuing the writ would be "necessary" as required by section 2241(c)(5). Furthermore, even if the district court should have issued the writ, the court held that the failure to do so was harmless because plaintiff has not demonstrated that the outcome of the trial would have been different if he had been physically present. Accordingly, the court affirmed the district court's judgment.