The opinion of the court was delivered by: RICHARD BERMAN, District Judge
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.
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).
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.'").)
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 ...