Lassend v. United States, Criminal No. 10–40019–FDS

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtSAYLOR, J.
Citation265 F.Supp.3d 103 (Mem)
Decision Date11 September 2017
Docket NumberCriminal No. 10–40019–FDS
Parties Kirk LASSEND, Petitioner, v. UNITED STATES of America, Respondent.

265 F.Supp.3d 103 (Mem)

Kirk LASSEND, Petitioner,
v.
UNITED STATES of America, Respondent.

Criminal No. 10–40019–FDS

United States District Court, D. Massachusetts.

Signed September 11, 2017


Cory S. Flashner, Karin Michelle Bell, United States Attorney's Office, Worcester, MA, for Respondent.

MEMORANDUM AND ORDER ON MOTION FOR A CERTIFICATE OF APPEALABILITY

SAYLOR, J.

On October 14, 2014, Kirk Lassend filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. The Court denied that petition on July 11, 2017. Lassend now seeks a certificate of appealability ("COA") in order to appeal the denial of his habeas petition. For the reasons that follow, that motion will be granted.

To appeal the final order in a proceeding instituted under 28 U.S.C. § 2255, the petitioner must first obtain a COA from a circuit justice or a district court. See 28 U.S.C. § 2253(c). A COA will issue only if the petitioner "has made a substantial showing of the denial of a constitutional right." § 2253(c)(2). This standard is satisfied by "demonstrating that jurists of reason could disagree with the district court's resolution of [petitioner's] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller–El v. Cockrell , 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack v. McDaniel , 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) ).

Petitioner contends that his sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), which was based on a finding that he had three prior convictions for "violent felonies" under the force clause of the ACCA, violates the constitution in light of the Supreme Court's decision in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Petitioner's contention, while ultimately rejected by this Court, represents a substantial showing of the denial of a constitutional right. Further, a reasonable jurist could disagree with the Court's conclusions.

Accordingly, a certificate of appealability is GRANTED as to petitioner's claim that his sentence under the ACCA...

To continue reading

Request your trial
3 practice notes
  • Lassend v. United States, No. 17-1900
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • August 2, 2018
    ...petition. United States v. Lassend, No. CR 10-40019, 2017 WL 2960518 (D. Mass. July 11, 2017), certificate of appealability granted, 265 F.Supp.3d 103 (D. Mass. 2017). He argues that his sentence as an armed career criminal under the Armed Career Criminal Act ("ACCA") is unconstit......
  • United States v. Marsalis, 13–CR–224 (MKB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • June 7, 2018
    ...and [ section] 160.15(4) is thus a ‘violent felony’ under the force clause of the ACCA."), certificate of appealability granted , 265 F.Supp.3d 103 (D. Mass. 2017).II. ConclusionFor the reasons discussed, the Court denies Defendant's motion to dismiss the indictment.SO ORDERED:--------......
  • Associated Press v. Fed. Bureau of Investigation, Civil Action No. 16–cv–1850 (TSC)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 30, 2017
    ...reasons, Plaintiffs' motion to supplement the record will be GRANTED; the FBI's motion for summary judgment will be GRANTED; and 265 F.Supp.3d 103Plaintiffs' cross-motion for summary judgment will be DENIED.A corresponding order will issue separately.--------Notes:1 Plaintiffs' challenge of......
3 cases
  • Lassend v. United States, No. 17-1900
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • August 2, 2018
    ...petition. United States v. Lassend, No. CR 10-40019, 2017 WL 2960518 (D. Mass. July 11, 2017), certificate of appealability granted, 265 F.Supp.3d 103 (D. Mass. 2017). He argues that his sentence as an armed career criminal under the Armed Career Criminal Act ("ACCA") is unconstit......
  • United States v. Marsalis, 13–CR–224 (MKB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • June 7, 2018
    ...and [ section] 160.15(4) is thus a ‘violent felony’ under the force clause of the ACCA."), certificate of appealability granted , 265 F.Supp.3d 103 (D. Mass. 2017).II. ConclusionFor the reasons discussed, the Court denies Defendant's motion to dismiss the indictment.SO ORDERED:--------......
  • Associated Press v. Fed. Bureau of Investigation, Civil Action No. 16–cv–1850 (TSC)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 30, 2017
    ...reasons, Plaintiffs' motion to supplement the record will be GRANTED; the FBI's motion for summary judgment will be GRANTED; and 265 F.Supp.3d 103Plaintiffs' cross-motion for summary judgment will be DENIED.A corresponding order will issue separately.--------Notes:1 Plaintiffs' challenge of......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT