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United States v. Yakubova

June 25, 2007

UNITED STATES OF AMERICA,
v.
ARKADY YAKUBOVA, PETITIONER.



The opinion of the court was delivered by: Sifton, Senior Judge.

MEMORANDUM OPINION AND ORDER

On March 10, 2000, pro se petitioner Arkady Yakubova ("Yakubova") pled guilty to conspiring to transport stolen motor vehicles in interstate commerce, in violation of 18 U.S.C. § 371. On October 5, 2000, I sentenced petitioner to a term of six months of imprisonment, followed by three years of supervised release. Six months of petitioner's supervised release was to be served under house arrest.*fn1 I also ordered that petitioner pay $53,259 in restitution, as required by statute.*fn2

On January 10, 2001, shortly before petitioner was scheduled to begin serving his federal sentence, New York City Police arrested defendant for firearms offenses. Petitioner was convicted for these offenses in New York Supreme Court and was sentenced to an indeterminate prison term of three to six years.*fn3 By order dated July 15, 2005, I denied petitioner's request for a sentence modification, in which petitioner requested that I reduce his term of supervised release and revoke the restitution order.*fn4 Petitioner did not appeal the July 15, 2005 order.

On September 23, 2005, petitioner was paroled from state custody to the Department of Homeland Security for deportation proceedings. On February 9, 2006, an Immigration Judge granted petitioner's application for a deferral of his removal for proceedings under the Convention Against Torture.*fn5 Petitioner is not currently in custody and is under the supervision of the United States Probation Department in Central Islip. According to petitioner's February 14, 2007 letter, petitioner now has at least one month left on New York State Parole.*fn6

By letters dated February 14, 2007 and April 11, 2007, petitioner renewed his application requesting the Court to modify his federal sentence. Defendant asks the Court: (1) to reduce the term of his supervised release and (2) to lift his restitution order.*fn7 Defendant also requests that this Court transfer his supervision to Atlanta, Georgia so that he may be with his wife and six-year-old daughter, and that the Court appoint counsel to assist him with this application.*fn8 For the reasons set forth below, petitioner's application is granted in part and denied in part.*fn9

Discussion

Appointment of Counsel

Under 18 U.S.C. § 3006A(c),

A person for whom counsel is appointed*fn10 shall be represented at every stage of the proceedings from his initial appearance before the United States magistrate or the court through appeal, including ancillary matters appropriate to the proceedings.

The Second Circuit has concluded that "ancillary matters . . . does not require the furnishing of Criminal Justice Act counsel in post-appeal motions for reduction of sentence . . . . The provision of counsel for such motions should rest in the discretion of the district court." United States v. Reddick, 53 F.3d 462, 465 (2d Cir. 1995) (citing cases and noting that "even if Section 3006A(c) [were interpreted] to require new appointments whenever such a motion for reduction of sentence was made, it would nonetheless place large burdens of questionable value on the bar and the criminal justice treasury"). The Court of Appeals further noted that "[t]he apparent merits of the motion will no doubt be a significant factor in the exercise of that discretion." Id. at 465 n. 2. Appointment of counsel is not necessary for me to resolve petitioner's application. Because petitioner is pro se, I will read his submissions to raise the strongest claims they suggest. See Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 475-76 (2d Cir. 2006). Accordingly, petitioner's request for counsel is denied.

Modification of Sentence

Petitioner requests that I apply the fifteen months he served in administrative custody awaiting deportation as credit towards his term of supervised release. The government argues that petitioner's request is barred by the law of the case doctrine, which holds that a legal decision made at one stage of litigation, unchallenged in a subsequent appeal when the opportunity to do so existed, becomes the law of the case for future stages of the same litigation, and the parties are deemed to have waived the right to challenge that decision at a later time. United States v. Hussein, 178 F.3d 125, 130 (2d Cir. 1999). Since petitioner did not appeal the July 15, 2005 order denying his request to modify his sentence, the government argues, he waived his right to challenge that order at a later period.*fn11

The law of the case doctrine is discretionary, though the Second Circuit has noted that "the major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Virgin Atlantic Airways v. National Mediation Board, 956 F.2d 1245, 1255 (2d Cir. 1992).

Yakubova's fifteen months of detention constitute new evidence that did not exist at the time the July 15, 2005 order was ...


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