Filed: Dec. 20, 2018
Latest Update: Mar. 03, 2020
Summary: 17-2847 United States of America v. Edward Mighty 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 NOTAT
Summary: 17-2847 United States of America v. Edward Mighty 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 NOTATI..
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17‐2847
United States of America v. Edward Mighty
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 ASUMMARY 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 20th day of December, two thousand eighteen.
PRESENT: DENNIS JACOBS,
GUIDO CALABRESI,
Circuit Judges,
JED S. RAKOFF,*
District Judge.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
UNITED STATES OF AMERICA,
Appellee,
‐v.‐ 17‐2847
EDWARD MIGHTY a/k/a MIGHTY, a/k/a
ANTHONY, a/k/a TONY,
Defendant‐Appellant.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
Judge Jed S. Rakoff, United States District Court for the Southern District of New York, sitting by
*
designation.
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FOR APPELLEE: MARY C. BAUMGARTEN, Assistant
United States Attorney, for James P.
Kennedy, Jr., United States Attorney for
the Western District of New York,
Buffalo, NY.
FOR DEFENDANT‐APPELLANT: JOHN C. PUTNEY, Dansville, NY.
Appeal from a judgment of the United States District Court for the
Western District of New York (Geraci, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Edward Mighty appeals from a judgment of conviction following a guilty
plea in the Western District of New York (Geraci, J.) sentencing him to 300
months’ imprisonment. Mighty was convicted and sentenced for possession
with intent to distribute and distribution of cocaine in violation of 21 U.S.C. § 846
and possession of firearms in furtherance of drug trafficking in violation of 18
U.S.C. § 924(c).
Mighty argues that his plea of guilty was not knowing and voluntary by
reason of his lawyer’s ineffective assistance. Mighty alleges that he met with his
lawyer only twice before pleading guilty, that he had no opportunity to review
the plea agreement prior to entering the courtroom on the day he signed it, that
his lawyer assured him he would receive probation, and that he never had an
opportunity to discuss the strengths of the government’s case against him or any
possible defenses he may have.
When faced with a claim of ineffective assistance of counsel on direct
appeal, this Court has three options. It may:
(1) decline to hear the claim, permitting the appellant to raise the
issue as part of a subsequent petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2255; (2) remand the claim to the district
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court for necessary factfinding; or (3) decide the claim on the record
before us.
United States v. Morris, 350 F.3d 32, 39 (2d Cir. 2003) (citing United States v.
Leone, 215 F.3d 253, 256 (2d Cir. 2000)). The first of these is the preferred method
for handling such claims because “[w]hen an ineffective‐assistance claim is
brought on direct appeal, appellate counsel and the court must proceed on a trial
record not developed precisely for the object of litigating or preserving the claim
and thus often incomplete or inadequate for this purpose.” Massaro v. United
States, 538 U.S. 500, 504–05 (2003).
Here, the record is insufficiently developed regarding the performance of
Mighty’s attorney at the time of his plea or any prejudice that Mighty suffered as
a result of the alleged deficient performance. Recognizing this difficulty, Mighty
asks us to “either decline to hear this appeal, permitting Mighty to pursue a
claim under 18 U.S.C. § 2255; or remand to the district court to create a full
record” for our later consideration. Appellant’s Br. at 8. Accordingly, we decline
to hear the ineffective assistance claim and dismiss it without prejudice to
Mighty raising the claim pursuant to 28 U.S.C. § 2255.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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