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KAMARA v. U.S.

United States District Court, S.D. New York


June 22, 2005.

ABDULAI KAMARA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

The opinion of the court was delivered by: RICHARD BERMAN, District Judge

DECISION AND ORDER

I. Background

By Decision and Order, dated June 6, 2005 ("Order"), the Court denied Abdulai Kamara's ("Kamara" or "Petitioner") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 ("Petition"). By letter dated June 13, 2005, Petitioner moved for reconsideration of the Order, pursuant to Local Civil Rule 6.3 of the Southern District of New York. (Letter from Martin J. Siegel to the Court, dated June 13, 2005 ("Siegel Letter").)*fn1 The United States of America did not submit a response.

  For the reasons set forth below, Petitioner's motion is granted in part and denied in part.

  II. Standard of Review

  A motion for reconsideration may be granted where "the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). A reconsideration motion is "not a motion to reargue those issues already considered when a party does not like the way the original motion was resolved." In re Houbigant, Inc., 914 F. Supp. 997, 1001 (S.D.N.Y. 1996).

  III. Analysis

  On the instant motion for reconsideration, Petitioner argues for the first time that Mungo v. Duncan, 393 F.3d 327, 336 (2d Cir. 2004), which holds that the ruling in Crawford v. Washington, 541 U.S. 36 (2004) does not apply retroactively on collateral review, "does not bar Mr. Kamara's Crawford claim because Crawford was decided before Mr. Kamara's conviction became final," i.e. on March 22, 2004 or ninety days after the United States Court of Appeals for the Second Circuit affirmed Petitioner's sentence. (Siegel Letter at 1-2.) Petitioner also moves for reconsideration of the Court's "dismissal of his Crawford claim as harmless error." (Id. at 2.)

  The United States Court of Appeals for the Second Circuit affirmed Petitioner's sentence on December 23, 2003. See United States v. Kamara, 85 Fed. Appx. 231, 232 (2d Cir. Dec. 23, 2003). The Supreme Court decided Crawford seventy-three days later on March 8, 2004. See Crawford, 541 U.S. at 36. Accordingly, Petitioner is correct and the Court finds that Petitioner's Crawford claim is, in fact, not barred by Mungo. See Clay v. United States, 537 U.S. 522, 527 (2003); Mungo, 393 F.3d at 333 & n. 3. (See Order at 4 ("Petitioner's sentence became final on December 23, 2003. . . . Because the Second Circuit has held that `Crawford should not be applied retroactively on collateral review,' Mungo, 393 F.3d at 336, Petitioner's claim here fails.").)

  At the same time, the Court perceives no basis for reconsidering its holding that any error arising from the admission of Petitioner's co-defendant's plea allocution was harmless. See United States v. McClain, 377 F.3d 219, 222 (2d Cir. 2004); In re Houbigant, Inc., 914 F. Supp. at 1001. (See Order at 5 ("There was more than `ample evidence' of Petitioner's guilt presented to the jury. . . . And, as in McClain, the jury was instructed that it could consider the plea allocution for the limited purpose of establishing that a conspiracy existed, not Petitioner's participation in the conspiracy.").)

  Nor is there any reason to review the Court's denial of a certificate of appealability. See 28 U.S.C. § 2253(c)(2). (See Order at 5 ("Petitioner has not `made a substantial showing of the denial of a constitutional right.'").)

  IV. Conclusion

  For the reasons stated herein, Petitioner's motion for reconsideration is granted in part and denied in part. The Petition is denied and the Court declines to grant Petitioner a certificate of appealability.


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