Petition for Writ of Certiorari — Lairon Graham, Petitioner v. United States

Supreme Court briefNov 26, 2025

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No. ______

IN THE

Supreme Court of the United States

>>>>

LAIRON GRAHAM,

Petitioner,

UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

Lucas Anderson

Counsel of Record

ROTHMAN, SCHNEIDER, SOLOWAY

& STERN, LLP

Attorneys for Petitioner

100 Lafayette Street, Suite 501

New York, New York 10013

212-571-5500

landerson@rssslaw.com

November 26, 2025

(212) 7190990

appeals@phpny.com

QUESTIONS PRESENTED

Whether the right to due process on appeal is violated where, despite a

criminal defendant-appellant’s repeated invocations of the party presentation

principle, an appellate court relies on a dispositive legal argument that was not

presented by the government.

Whether, as an alternative to deciding the first question presented, the

Court should grant certiorari, vacate the Second Circuit judgment, and remand the

case in light of the recent party-presentation-related order in Clark v. Sweeney, 607

U.S. ----, 2025 WL 3260170 (2025).

Whether, as some circuit courts have held, a general appeal waiver set

forth in a signed plea agreement does not apply to appellate claims of ineffective

assistance of counsel, or whether, as the Second Circuit assumed in this case, and

as other circuits have previously determined, appeal waivers that do not mention

ineffective assistance of counsel claims may be interpreted to preclude such claims

on appeal.

RELATED PROCEEDINGS

● United States v. Graham, No. 24-292, U.S. Court of Appeals for the Second

Circuit. Summary Order and Judgment issued April 21, 2025; petition for

rehearing denied July 1, 2025.

● United States v. Graham, et al., No. 1:21 Cr. 195 (LJV), U.S. District Court

for the Western District of New York. Judgment entered January 25, 2024.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED............................................................................................ i

RELATED PROCEEDINGS .......................................................................................... ii

TABLE OF AUTHORITIES ........................................................................................... v

OPINIONS BELOW ....................................................................................................... 1

STATEMENT OF JURISDICTION ............................................................................... 1

STATUTORY PROVISIONS INVOLVED .................................................................... 1

INTRODUCTION ........................................................................................................... 2

STATEMENT OF THE CASE ....................................................................................... 4

District Court Proceedings .................................................................................. 4

A. The Indictment ................................................................................................. 4

B. The Plea Agreement ......................................................................................... 4

C. The § 851 Information and the Plea Proceeding ............................................ 6

D. Sentencing ........................................................................................................ 6

II. Appellate Proceedings ......................................................................................... 8

A. The Parties’ Presented Arguments ................................................................. 8

B. Petitioner’s Invocations of the Party Presentation Principle ...................... 10

C. The Second Circuit’s Summary Order .......................................................... 12

D. The Petition for Rehearing ............................................................................ 13

REASONS FOR GRANTING THE PETITION FOR CERTIORARI ......................... 14

The question of whether, and under what circumstances, an appellate court’s

violation of the party presentation principle amounts to a violation of due

process is exceptionally important. ................................................................... 14

II. As an alternative to deciding the first question presented, a “GVR” would be

appropriate in light of this Court’s recent order in Clark v. Sweeney. ........... 16

III. The federal circuit courts disagree as to which types of appellate or collateral

ineffective assistance of counsel claims are covered by a general appeal

waiver. ................................................................................................................ 18

iii

IV. This case presents an ideal vehicle for the Court to address the questions

presented. ........................................................................................................... 21

A. The party-presentation violation was particularly flagrant. ....................... 21

B. The federal circuits are split with respect to an issue that is determinative

of petitioner’s ability to raise an ineffective assistance of counsel claim on

appeal. ............................................................................................................. 23

C. Petitioner would have succeeded on his underlying Strickland claim. ....... 23

CONCLUSION ............................................................................................................. 27

SUMMARY ORDER OF THE UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT, FILED JULY 8, 2025 .................................................. App. A1

ORDER OF THE UNITED STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT DENYING REHEARING, FILED JULY 1, 2025 ........................ App. A6

STATUTORY PROVISIONS INVOLVED ........................................................ App. A7

TABLE OF AUTHORITIES

Cases

Page(s)

Ahmed v. Holder,

624 F.3d 150 (2d Cir. 2010) .............................................................................. 10

Caperton v. A.T. Massey Coal Co., Inc.,

556 U.S. 868 (2009) .......................................................................................... 16

Carducci v. Regan,

714 F.2d 171 (D.C. Cir. 1983) .......................................................................... 14

Clark v. Sweeney,

607 U.S. ----, 2025 WL 3260170 (2025) ............................................. i, 16-17, 18

Day v. McDonough,

547 U.S. 198 (2006) .......................................................................................... 22

Flowers v. Mississippi,

579 U.S. 913 (2016) .......................................................................................... 17

Garza v. Idaho,

586 U.S. 232 (2019) ................................................................................... 8-9, 18

Greenlaw v. United States,

554 U.S. 237 (2008) .............................................................................. 14, 15, 17

Honda Motor Co. v. Oberg,

512 U.S. 415 (1994) .......................................................................................... 16

In re: Sealed Case,

901 F.3d 397 (D.C. Cir. 2018) ............................................................... 19, 20-21

Ivanhoe Investment Partners, L.P. v. Windsor Securities, LLC,

No. 21-506, 2025 WL 573497 (2d Cir. Feb. 21, 2015) ................................ 10-11

LaChance v. Erickson,

522 U.S. 262 (1998) .................................................................................... 16, 22

Lafler v. Cooper,

566 U.S. 156 (2012) .......................................................................................... 20

TABLE OF AUTHORITIES (cont’d)

Cases

Page(s)

Lawrence v. Chater,

516 U.S. 163 (1996) .................................................................................... 17, 18

McNeil v. Wisconsin,

501 U.S. 171 (1991) .......................................................................................... 14

Norton v. Sam’s Club,

145 F.3d 114 (2d Cir. 1998) .............................................................................. 10

Patel v. United States,

252 Fed. App’x 970 (11th Cir. 2007) ................................................................ 19

People v. Jones,

300 A.D.2d 30, 750 N.Y.S.2d 299 (App. Div. 1st Dept. 2002) ......................... 26

People v. Saia,

112 A.D.2d 804, 492 N.Y.S.2d 306 (App. Div. 4th Dept. 1985) ...................... 26

Portis v. United States,

33 F.4th 331 (6th Cir. 2022) ............................................................................. 19

State v. Bristol,

654 S.W.3d 917 (Tenn. 2022) ........................................................................... 14

Strickland v. Washington,

466 U.S. 668 (1984) .......................................... 2, 3, 8, 12, 18, 20, 21, 22, 23, 24

United States v. Attar,

38 F.3d 727 (4th Cir. 1994) .............................................................................. 20

United States v. Dowdell,

70 F.4th 134 (3d Cir. 2023) .............................................................................. 15

United States v. Edwards,

145 F.4th 774 (7th Cir. 2025) ........................................................................... 19

United States v. Graham,

No. 24-292, 2025 WL 1155918 (2d Cir. Apr. 21, 2025) ..................................... 1

TABLE OF AUTHORITIES (cont’d)

Cases

Page(s)

United States v. Hahn,

359 F.3d 1315 (10th Cir. 2004) ........................................................................ 20

United States v. Johnson,

410 F.3d 137 (4th Cir. 2005) ............................................................................ 20

United States v. Leaverton,

895 F.3d 1251 (10th Cir. 2018) ........................................................................ 25

United States v. Morrison,

449 U.S. 361 (1981) .......................................................................................... 24

United States v. Pemberton,

85 F.4th 862 (7th Cir. 2023) ............................................................................. 25

United States v. Sineneng-Smith,

590 U.S. 371 (2020) ........................................................................ 15, 17, 21, 22

United States v. Teeter,

257 F.3d 14 (1st Cir. 2001) ............................................................................... 19

United States v. Wehmhoefer,

835 Fed. App’x 208 (9th Cir. 2020) .................................................................. 25

United States v. White,

307 F.3d 336 (5th Cir. 2002) ............................................................................ 20

Wellons v. Hall,

558 U.S. 220 (2010) .................................................................................... 17, 18

Constitutional Provisions, Statutes, and Rules

U.S. Const. amend VI ...................................................................................... 19, 20, 24

18 U.S.C. § 1591(a)(1) ................................................................................................... 4

18 U.S.C. § 2111 ...................................................................................................... 8, 24

18 U.S.C. § 2113 ...................................................................................................... 8, 24

vii

TABLE OF AUTHORITIES (cont’d)

Constitutional Provisions, Statutes, and Rules

Page(s)

18 U.S.C. § 2118 ...................................................................................................... 8, 24

18 U.S.C. § 3231 ............................................................................................................ 4

18 U.S.C. § 3559(c)(2) .............................................................................. 8, 9, 24, 25, 26

18 U.S.C. § 3559(c)(3)(A) ............................................................................................. 25

21 U.S.C. § 802(58) ........................................................................................................ 8

21 U.S.C. § 802(59) .................................................................................................. 8, 24

21 U.S.C. § 841(b)(1)(A) ........................................................................ 4, 5, 6, 9, 23, 24

21 U.S.C. § 846 .............................................................................................................. 4

21 U.S.C. § 851 .............................................................................................................. 5

Fed. R. App. P. 28(j) .................................................................................................... 11

Fed. R. Crim. P. 11(c)(1)(C) ....................................................................................... 5, 8

N.Y. Penal Law § 70.00(2)(d) ...................................................................................... 24

N.Y. Penal Law § 155.05(2) ................................................................................... 25-26

N.Y. Penal Law § 160.00(2) ........................................................................................ 25

N.Y. Penal Law § 160.05 ......................................................... 4, 5, 6, 7, 8, 9, 24, 25, 26

Other Sources

Brief of Amici Curiae Second Circuit Federal Defender Organizations, New York

Criminal Bar Association, and Second Circuit Criminal Defense Practitioners

in Support of Petitioner, Adrian Goudelock v. United States, No. 25-5553

(U.S. Oct. 31, 2025) .......................................................................................... 15, 18

Amanda Frost, The Limits of Advocacy, 59 Duke. L.J. 447 (2009) ........................... 14

viii

TABLE OF AUTHORITIES (cont’d)

Other Sources

Page(s)

Eric D. Miller, Judge Silberman, Party Presentation, and the Non-Court Court,

2023 Harv. J.L. & Pub. Pol’y Per Curiam 47 (2023) ........................................ 15-16

Oral Argument, United States v. Graham, No. 24-292 (2d Cir. Apr. 11, 2025),

available at https://ww3.ca2.uscourts.gov/decisions/isysquery/

e881ab4e-9675-4c82-8825-c8b85beb1c90/342/doc/24-292.mp3 ............ 3, 11-12, 21

Petition for Writ of Certiorari, Hunter v. United States, No. 24-1063

(Apr. 4, 2025) ........................................................................................................ 18

Zachary B. Pohlman, The Sineneng-Smith Doctrine,

14 Fed. Cts. L. Rev. 106 (2022) ............................................................................. 14

U.S. Dept. of Justice, Attorney General Holder Announces New Policy to

Enhance Justice Department’s Commitment to Support Defendants’ Right

to Counsel (Oct. 14, 2014), available at https://www.justice.gov/archives/

opa/pr/ attorney-general-holder-announces-new-policy-enhance-justicedepartments-commitment-suppoet. .................................................................. 2, 21

_______________

PETITION FOR A WRIT OF CERTIORARI

_________________

Lairon Graham respectfully petitions the Court for a writ of certiorari.

OPINIONS BELOW

The summary order issued by the Court of Appeals for the Second Circuit

(App. A1) is reported at 2025 WL 1155918 (2d Cir. Apr. 21, 2025). The Second

Circuit’s order denying panel rehearing or rehearing en banc (App. A6) is not

reported.

STATEMENT OF JURISDICTION

The judgment of the court of appeals was entered on April 21, 2025. The

Second Circuit denied a timely petition for rehearing on July 1, 2025. On September

19, 2025, this Court granted petitioner’s request for an extension of time to file a

petition for certiorari on or before October 29, 2025. On October 17, 2025, the Court

granted petitioner’s request for a further extension of time to file a petition for a

writ of certiorari on or before November 28, 2025.

STATUTORY PROVISIONS INVOLVED

Relevant statutory provisions are reproduced in the attached appendix (App.

A7-10).

INTRODUCTION

In 2010, petitioner was convicted of a purse snatching offense in New York

State. Thirteen years later, petitioner was charged with narcotics and sex

trafficking offenses in the Western District of New York and his attorney persuaded

him to accept a plea agreement which included a stipulation that his prior state

conviction qualifies as a “serious violent felony” under federal law. While this

stipulation did not alter the mandatory minimum concurrent period of

imprisonment in this case, it did increase the total minimum period of supervised

release from five to ten years.

As a matter of policy, the U.S. Department of Justice “no longer asks criminal

defendants who plead guilty to waive their right to bring future claims of ineffective

assistance of counsel.”1 The plea agreement in this case contains an appeal waiver

that does not mention Sixth Amendment ineffective assistance of counsel claims

under Strickland v. Washington, 466 U.S. 668 (1984). Rather, by its plain terms the

appeal waiver applies to appellate or collateral challenges to a sentence that

includes a period of life imprisonment or less, “notwithstanding the manner in

which the [district c]ourt determines the sentence.” See App. A3. As such, when

petitioner was assigned substitute counsel on appeal and he raised a Strickland

claim based on his prior attorney’s performance relating to the “serious violent

1 U.S. Dept. of Justice, Attorney General Holder Announces New Policy to Enhance

Justice Department’s Commitment to Support Defendants’ Right to Counsel (Oct.

14, 2014), available at https://www.justice.gov/archives/opa/pr/attorney-generalholder-announces-new-policy-enhance-justice-departments-commitment-suppoet.

felony” sentencing enhancement stipulation, he also argued that the appeal waiver

did not foreclose his claim.

The government subsequently filed a response brief that did not

acknowledge, much less contest, petitioner’s arguments regarding the limited scope

of his appeal waiver. Petitioner then repeatedly invoked the “party presentation

principle” in an effort to prevent his appeal from being determined based on a nonpresented argument. Finally, during its oral argument presentation, the

government was asked to address the scope of the appeal waiver, and it conceded

that criminal defendants who agree to such waivers may still appeal their

sentences, “for example, if there’s something in the record that may suggest

ineffective assistance of counsel.”2 Nevertheless, in a non-precedential “summary

order” that does not mention the party presentation principle or the government’s

position on the waiver issue, the Second Circuit dismissed petitioner’s appeal on the

grounds that his Strickland claim was barred because he “has not argued, much

less shown, that the appeal waiver itself was the result of ineffectiveness of

counsel.” App. A5.

2 Oral Argument at 11:50-12:15, United States v. Graham, No. 24-292 (2d Cir. Apr.

11, 2025), available at https://ww3.ca2.uscourts.gov/decisions/isysquery/e881ab4e9675-4c82-8825-c8b85beb1c90/342/doc/24-292.mp3 (last accessed Nov. 25, 2025).

STATEMENT OF THE CASE

District Court Proceedings

The United States District Court for the Western District of New York had

subject matter jurisdiction pursuant to 18 U.S.C. § 3231.

The Indictment

In a second superseding indictment filed on November 1, 2022, the

government charged petitioner and six other people with an assortment of drug

trafficking, firearms, and sex trafficking offenses. C.A. App. 24-43. As relevant here,

petitioner was charged under Counts One and Two with conspiring to distribute

and possessing with the intent to distribute narcotics. Under an “allegation of prior

conviction for serious violent felony,” the indictment further alleges that:

Before the defendant . . . committed the offenses charged in Counts 1

and 2 . . . [he] had a final conviction for a serious violent felony, that is,

a violation of New York Penal Law § 160.05, for which [he] served

more than 12 months of imprisonment.

Id. at 36.

The Plea Agreement

In April of 2023, the government offered a plea agreement through which

petitioner would plead guilty to one count of drug trafficking, in violation of 21

U.S.C. §§ 846 and 841(b)(1)(A), and four counts of sex trafficking by force or

coercion, in violation of 18 U.S.C. § 1591(a)(1). C.A. App. 46-47. While the plea

agreement contains a stipulated U.S. Sentencing Guidelines calculation consisting

of a total offense level of 41 and a criminal history category of VI, yielding a range of

360 months to life imprisonment, it also states that, “it is the agreement of the

parties[,] pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure[,]

that the Court at the time of sentence [will] impose a sentence of imprisonment

between 180 months and 264 months[.]” Id. at 55. The plea agreement further

provides that “[t]he defendant admits that [he] has a prior serious violent felony

conviction for Robbery in the Third Degree in violation of New York State Penal

Law 160.05, from April 14, 2010, which subjects [him] to the enhanced penalties

provided for in [§] 841(b)(1)(A).” Id. at 47. As a result of this stipulation, the plea

agreement notes that a conviction under § 841(b)(1)(A) would subject petitioner to

an enhanced “term of supervised release of at least 10 years,” while the four sex

trafficking counts would each require a minimum concurrent period of five years’

supervised release. Id. at 46-47.

Under a section titled “Appeal Rights,” the plea agreement states, in relevant

part, that:

The defendant . . . knowingly waives the right to appeal and

collaterally attack any component of a sentence imposed by the Court

which falls within or is less than a term of imprisonment between 360

months and life, a fine of $50,000 to $20,000,000, and a period of

supervised release of 10 years, notwithstanding the manner in which

the Court determines the sentence. . . .

The defendant understands that by agreeing not to collaterally attack

the sentence, the defendant is waiving the right to challenge the

sentence in the event that in the future the defendant becomes aware

of previously unknown facts or a change in the law which the

defendant believes would justify a decrease in the defendant’s

sentence.

C.A. App. 60-61 (emphasis added).

The § 851 Information and the Plea Proceeding

On the morning of petitioner’s April 27, 2023 plea hearing, the government

filed an “information pursuant to 21 U.S.C. § 851” in which it asserted that, if

petitioner were convicted of a violation of 21 U.S.C. § 841(b)(1), he would be subject

to “increased punishment” because he was previously convicted of a “serious violent

felony.” C.A. App. 44. Specifically, the government alleged that, “on or about April

14, 2010,” petitioner was convicted of robbery in the third degree, in violation of

New York Penal Law [“P.L.”] § 160.05. Id. at 44-45.

At the outset of the plea hearing, defense counsel advised that petitioner was

inclined to reject the government’s proposed plea agreement, and the district court

then asked the government to summarize its plea offer for the record. C.A. App. 68.

After reciting the material terms of its proposed agreement, counsel for the

government stated:

This approved plea agreement by the United States Attorney expires

today. And I’m serious as a heart attack, when we walk out of the

courtroom today and the day is over, the plea is gone, the plea will

never be reoffered, no other plea will ever be reoffered.

Id. at 87-89. The court then held a recess for petitioner to speak to his attorney, and

when the case was re-called defense counsel advised that petitioner would sign the

plea agreement and plead guilty. Id. at 89-90.

Sentencing

The presentence investigation report [“PSR”] issued in advance of sentencing

described how petitioner’s guilty plea under § 841(b)(1)(A), which ordinarily carries

a five-year minimum term of supervised release, requires a minimum of ten years’

supervised release in this case because of the stipulation relating to a prior “serious

violent felony.” PSR ¶¶ 1, 167, 172. In recounting the facts of the New York thirddegree robbery conviction underlying this enhancement, the PSR states that:

[O]n November 1, 2009, the defendant forcibly grabbed a purse from

the victim as she was entering a building. The purse contained $282

and personal documents belonging to the victim. The defendant fled

the scene, and officers subsequently apprehended him a short time

later. Upon encountering the defendant, officers observed that he was

still in possession of the stolen money and three (3) of the victim’s

credit cards.

Id. at ¶ 150.

During a sentencing hearing held on January 5, 2024, the district court asked

petitioner to confirm that he was previously convicted of third-degree robbery in

violation of New York P.L. § 160.05, and the following colloquy ensued:

THE DEFENDANT: Excuse me, may I speak with my attorney first

about that before I answer that?

THE COURT: Sure. Absolutely.

[DEFENSE COUNSEL]: His concern, Your Honor, he’s prepared to

make the admission. What the issue is, is that robbery in the third

degree, New York State Penal Law, it’s not a violent felony under New

York State law. We have discussed the fact that it is considered a

violent felony.

THE COURT: Well, all I’m asking right now is, . . . were you convicted

of robbery in the third degree in a New York State court?

THE DEFENDANT: Yes, Your Honor.

C.A. App. 209.

The district court ultimately accepted the terms of the plea agreement,

including the Rule 11(c)(1)(C) stipulation, and imposed a total effective sentence of

264 months’ imprisonment and 10 years of supervised release. C.A. App. 212, 245.

II.

Appellate Proceedings

The Parties’ Presented Arguments

In his opening brief on appeal, petitioner argued that he “received ineffective

assistance of counsel where his [prior] attorney stipulated to the designation of his

2010 purse snatching [conviction] as a ‘serious violent felony.’” C.A. Br. 1. Petitioner

explained that, absent such a stipulation, his prior P.L. § 160.05 conviction would

not qualify as a “serious violent felony” under 21 U.S.C. § 802(59) (formerly

§ 802(58)) or 18 U.S.C. § 3559(c)(2) because it does not “consist of” the essential

elements of the federal robbery crimes chargeable under 18 U.S.C. §§ 2111, 2113, or

2118. Id. at 18. See infra pp. 25-27. Moreover, because “[t]here is no plausible

strategic reason for [defense] counsel to have stipulated to an inapplicable

sentencing enhancement,” and because the existing record confirms that “there is at

least a reasonable probability that the erroneous application of that enhancement

affected the result of the proceeding,” petitioner argued that his Strickland claim

was appropriate for resolution on direct appeal. C.A. Br. 18-19.

Petitioner’s opening brief also explained why the appeal waiver set forth in

his plea agreement does not preclude an appellate challenge to his prior attorney’s

performance. C.A. Br. 34-37. Citing to this Court’s statement in Garza v. Idaho,

that “a valid and enforceable waiver only precludes challenges that fall within its

scope,” 586 U.S. 232, 238 (2019) (cleaned up), petitioner argued, inter alia, that the

waiver set forth in his plea agreement does not mention ineffective assistance of

counsel claims and is expressly limited to challenges based on “the manner in which

the court determines the sentence.” Id. at 34-36 (quoting C.A. App. 60).

The government’s response brief to the Second Circuit did not acknowledge,

much less respond to, petitioner’s argument that his prior attorney’s performance

relating to the “serious violent felony” stipulation resulted in a higher minimum

supervised release period. Indeed, outside of its “statement of jurisdiction,” the

government’s brief did not mention supervised release at all. However, in regards to

the issue of whether it was an error for defense counsel to agree that petitioner’s

prior purse snatching conviction subjected him to any type of sentencing

enhancement under § 841(b)(1)(A), the government repeatedly conceded that the

question of New York P.L. § 160.05’s status as a “serious violent felony” under

§ 3559(c)(2)(F)(i) is “an open one.” C.A. Resp. Br. 16, 19.

With respect to the appeal waiver in the plea agreement, the government’s

response brief did not mention or present any argument in opposition to petitioner’s

claim that the waiver does not extend to ineffective assistance of counsel claims.

Instead, the government falsely characterized petitioner’s primary appellate

argument as a challenge to the district court’s exercise of discretion. See C.A. Resp.

Br. 1 (“Statement of Issues Presented for Review”). See also id. at 7-8 (“Graham is

unable to demonstrate any plain error when the district court accepted that his

prior conviction under New York’s robbery in the third-degree statute served as a

‘serious violent felony’ sentencing enhancement.”); id. at 13-14 & 19-20 (pages of

briefing relating to sentencing “reasonableness” and “plain error” review).3

Petitioner’s Invocations of the Party Presentation

Principle

In his reply brief, petitioner argued that the government had “fail[ed] to

respond to most of [his] presented arguments, thereby waiving its right to do so.”

C.A. Reply Br. 1. “For example,” petitioner emphasized that “the government

decline[d] to recognize” presented arguments “regarding the scope of the appeal

waiver in [the] plea agreement.” Ibid. See id. at 2-5 & 9-10. In support, petitioner

cited prior Second Circuit decisions relating to the principle that “[i]ssues not

briefed on appeal are considered abandoned.” Id. at 4-5 (quoting Ahmed v. Holder,

624 F.3d 150, 153 (2d Cir. 2010), and citing Norton v. Sam’s Club, 145 F.3d 114,

117-18 (2d Cir. 1998)).

Several weeks after petitioner filed his reply brief, the Second Circuit issued

a decision in a civil securities fraud case where “no party question[ed]” whether

“scienter is a required element of a claim brought under § 1-401 of the Pennsylvania

Securities Act.” Ivanhoe Investment Partners, L.P. v. Windsor Securities, LLC, No.

21-506, 2025 WL 573497 at *1 n.1 (2d Cir. Feb. 21, 2015). Although the appellate

panel had identified a Pennsylvania Supreme Court case that specifically

“distinguish[ed] federal securities law and § 1-401(b) with respect to scienter,” it

3 At other points, the government’s response brief falsely suggested that petitioner’s

appeal may have something to do with a collateral attack on the validity of his prior

third-degree robbery conviction. C.A. Resp. Br. 5, 7, 17-18.

invoked the “principle of party presentation” and explained that, based on the

parties’ presented arguments, it would “assume” that proof of scienter was required

under Pennsylvania law. Ibid. Following this decision, petitioner filed a letter,

pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure, in which he

argued that, “[i]n this case, as in Ivanhoe, . . . there is no reason to depart from the

party presentation principle.” C.A. Ltr. 1 (Apr. 2, 2025). “Indeed,” petitioner

asserted, the party presentation principle “is particularly relevant here, where . . .

Graham contends that the government’s response brief is almost entirely nonresponsive to his presented points on appeal, . . . and where a rejection of those

points would therefore require resort to non-presented counter-arguments that [he]

did not have an adequate opportunity to contest.” Id. at 2.

The Second Circuit subsequently heard oral arguments in petitioner’s appeal.

At the outset of his presentation, petitioner’s counsel again requested that the

Second Circuit comply with the party presentation rule and refrain from disposing

of the appeal based on non-presented arguments:

I expect that if the government today raises issues that are relevant to

the claim that we have actually presented this Court in our opening

brief, it will have to rely on arguments that were not set forth in its

response brief, and that we therefore didn’t have a sufficient

opportunity to reply [to]. Appellees, no less than appellants, under this

Court’s precedents, waive arguments by not briefing them, and the

Supreme Court’s decisions relating to the party presentation rule

confirm that, in criminal cases at least, departures from that principle

are ordinarily done to protect a pro se litigant’s rights.

...

The job of this Court is to be, as the Supreme Court puts it, “a passive

instrument of government” that decides presented issues, not one that

says, “ok, there’s a reason here that we can affirm this judgment—the

government didn’t present it to us—but there’s a reason that we can . .

. say, ‘sorry, it’s [] the job of everybody here except for defense counsel

[] to find a reason to affirm a judgment, and if the government doesn’t

do its job and present arguments, we’re going to find arguments.’”

Oral Argument, at 2:50-4:30.

At a later point, during the government’s oral argument presentation, one of

the panel members asked: “Under what circumstances can a defendant, in the

government’s view, challenge a sentence where there’s an appeal waiver but not

also challenge the voluntariness of the plea?” Oral Argument, at 11:50-12:10. In

response, counsel for the government stated that “there may be circumstances, for

example, if there’s something in the record that may suggest ineffective assistance

of counsel[.]” Id. at 12:10-12:15.

The Second Circuit’s Summary Order

The parties were not directed to present supplemental briefing relating to the

scope of the appeal waiver in petitioner’s plea agreement. Nevertheless, in a selfdescribed non-precedential “summary order” issued on April 21, 2025, the Second

Circuit held that “Graham’s appeal waiver precludes his claim for ineffective

assistance of counsel” because he “has not argued, much less shown, that the appeal

waiver itself was the result of ineffectiveness of counsel.” App. A5.

While acknowledging that “Graham does not contends [sic] that his waiver

was unknowing or involuntary,” and that the relevant issue instead is whether his

presented Strickland claim “fall[s] within the scope of the waiver,” App. A4, the

summary order does not mention petitioner’s argument relating to the fact that the

waiver is, by its plain terms, limited to appellate and collateral attacks based on

“the manner in which the [district c]ourt determines the sentence.” See C.A. Br. 36

(quoting CA. App. 60). Nor does the summary order mention petitioner’s invocations

of the party presentation principle or the fact that the government disclaimed

reliance on the argument that, as the court held, “Graham’s appeal waiver

precludes [a] claim for ineffective assistance of counsel.” App. A5. See supra pp. 12.

The Petition for Rehearing

Petitioner filed a timely petition for panel rehearing or rehearing en banc in

which he emphasized that the summary order “relies on an argument the

government did not present and has broadly renounced as a matter of policy[.]” C.A.

Reh’g Pet. at 2-3. In addition, petitioner argued that rehearing was warranted

because the Court’s reasoning “conflicts with the well-reasoned decisions of other

circuits who do not permit criminal defense lawyers to advise their clients to waive

their right to bring claims of ineffective assistance of counsel.” Id. at 3. See id. at 1415.

The petition for rehearing was denied on April 25, 2025. App. A6.

REASONS FOR GRANTING THE PETITION FOR CERTIORARI

The question of whether, and under what circumstances, an

appellate court’s violation of the party presentation principle

amounts to a violation of due process is exceptionally

important.

In an adversarial judicial system, courts should serve as “neutral arbiter[s] of

matters the parties present.” Greenlaw v. United States, 554 U.S. 237, 243 (2008).

Indeed, “[w]hat makes a system adversarial rather than inquisitorial is . . . the

presence of a judge who does not (as an inquisitor does) conduct the factual and

legal investigation himself, but instead decides on the basis of facts and arguments

pro and con adduced by the parties.” McNeil v. Wisconsin, 501 U.S. 171, 181 n.2

(1991). See Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (“The premise of

our adversarial system is that appellate courts do not sit as self-directed boards of

legal inquiry and research, but essentially as arbiters of the legal questions

presented and argued by the parties before them.”); State v. Bristol, 654 S.W.3d 917,

924 (Tenn. 2022) (“The party-presentation principle helps reduce the risk that

judges will exercise power more appropriately reserved for the political branches.”).

In Greenlaw, 554 U.S. at 243, this Court confirmed that, “in both civil and

criminal cases, in the first instance and on appeal, we follow the principle of party

presentation” and “rely on the parties to frame the issues for decision.”4 The Court

4 Scholars have debated whether the party presentation principle does (or should)

apply where a court cites non-presented authorities or legal theories relating to a

presented legal issue, as opposed to the type of wholesale “issue creation” that

occurred here. Amanda Frost, The Limits of Advocacy, 59 Duke. L.J. 447, 456

(2009). See Zachary B. Pohlman, The Sineneng-Smith Doctrine, 14 Fed. Cts. L. Rev.

106, 118-125 (2022).

has also observed that, “[i]n criminal cases, departures from the party presentation

principle have usually occurred ‘to protect a pro se litigant’s rights.’” United States

v. Sineneng-Smith, 590 U.S. 371, 375 (2020) (quoting Greenlaw, 554 U.S. at 244).

See United States v. Dowdell, 70 F.4th 134, 145-46 (3d Cir. 2023) (“[T]he party

presentation principle, the bedrock of our adversarial system[,] . . . supports our

practice of enforcing forfeiture against the government in the same way we do with

defendants.”).

However, in a brief of amici curiae recently filed in this Court, a large group

of experienced Second Circuit criminal practitioners, including every relevant

Federal Defender office, has advised that party-presentation violations in that court

have been “recur[ring] with increasing frequency” in criminal cases. Brief of Amici

Curiae Second Circuit Federal Defender Organizations, New York Criminal Bar

Association, and Second Circuit Criminal Defense Practitioners in Support of

Petitioner, Adrian Goudelock v. United States, No. 25-5553, at 2 (U.S. Oct. 31,

2025). See id. at 9 (“In recent years, the Second Circuit has repeatedly discarded the

party-presentation rule, often with no explanation.”). This case presents a

particularly clear example of how such violations may occur “with no

acknowledgment,” ibid., that a dispositive issue cited in an appellate court decision

was not presented—and may have been affirmatively disclaimed—by the winning

party.

“When courts . . . take it upon themselves to shape the litigation by

developing arguments for the parties, they depart from their role as neutral

arbiters, and they make it easier to indulge in considerations that should have no

place in the judicial process.” Eric D. Miller, Judge Silberman, Party Presentation,

and the Non-Court Court, 2023 Harv. J.L. & Pub. Pol’y Per Curiam 47, at 1-2

(2023). Or, “[t]o put it plainly, courts ‘call balls and strikes’; they don’t get a turn at

bat.” Clark v. Sweeney, 607 U.S. ----, 2025 WL 3260170, at *1 (2025) (per curiam). It

has already been determined that the right to “a fair tribunal” applies to appellate

proceedings, Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 876 (2009); that

“[t]he core of due process is the right to notice and a meaningful opportunity to be

heard,” LaChance v. Erickson, 522 U.S. 262, 266 (1998); and that appellate litigants

have the right to protection against “arbitrary and inaccurate adjudication,” Honda

Motor Co. v. Oberg, 512 U.S. 415, 430 (1994). This Court should now resolve the

first question presented and provide much-needed guidance as to whether, and

under what circumstances, an appellate court’s resort to non-presented arguments

amounts to a violation of the right to due process on appeal.

II.

As an alternative to deciding the first question presented, a

“GVR” would be appropriate in light of this Court’s recent

order in Clark v. Sweeney.

In Sweeney, 607 U.S. ----, 2025 WL 3260170, at *1, the Fourth Circuit

“departed dramatically from the principle of party presentation” where it reversed a

district court’s denial of a criminal defendant’s habeas corpus petition based on “a

claim that [the defendant] never asserted.” In a per curiam order issued on

November 24, 2025, this Court granted the government’s certiorari petition,

remanded Sweeney to the Fourth Circuit, and instructed that court to decide the

defendant’s appeal based on the argument he had in fact presented. Id. at *2.

While this case presents an ideal vehicle for the Court to resolve the first

question presented, see infra pp. 21-23, an order granting the petition for certiorari,

vacating the judgment below, and remanding the case for further consideration

(“GVR”) would be an appropriate alternative disposition in light of this Court’s

order in Sweeney. “A GVR is appropriate when ‘intervening developments . . . reveal

a reasonable probability that the decision below rests upon a premise that the lower

court would reject if given the opportunity for further consideration, and where it

appears that such a redetermination may determine the ultimate outcome’ of the

matter.” Wellons v. Hall, 558 U.S. 220, 225 (2010) (per curiam) (quoting Lawrence v.

Chater, 516 U.S. 163, 167 (1996) (per curiam)). See Flowers v. Mississippi, 579 U.S.

913 (2016) (Alito, J., dissenting) (“This Court often ‘GVRs’ a case . . . when we

believe that the lower court should give further thought to its decision in light of an

opinion of this Court that (1) came after the decision under review and (2) changed

or clarified the governing legal principles in a way that could possibly alter the

decision of the lower court.”).

If the author of the lower court’s summary order in this case had not “rest[ed]

upon a premise” that, despite this Court’s opinions in Greenlaw and SinenengSmith, the party presentation principle may be ignored even when it is

affirmatively and emphatically invoked by an aggrieved party, there is “a

reasonable probability” that “the ultimate outcome” of petitioner’s appeal would

have been different. Wellons, 558 U.S. at 225 (quoting Lawrence, 516 U.S. at 167).

Therefore, because this Court’s order in Sweeney provides the Second Circuit an

opportunity to “further consider[]” its approach, ibid., in this and other criminal

cases where the government does not present (or affirmatively disclaims)

arguments which that court may prefer to decide, see Brief of Amici Curiae, No. 255553, supra p. 15, a GVR would be an appropriate alterative disposition.

III.

The federal circuit courts disagree as to which types of

appellate or collateral ineffective assistance of counsel claims

are covered by a general appeal waiver.

“[N]o appeal waiver serves as an absolute bar to all appellate claims,” and

“all jurisdictions appear to treat at least some claims as unwaiveable.” Garza, 586

U.S. at 238-39 (cleaned up). However, this Court has “ma[de] no statement . . . on

what particular exceptions may be required,” id. at 239 n.6, and the federal courts

of appeals are divided as to when a generic appeal waiver will be enforced to

prohibit appellate or collateral claims of ineffective assistance of counsel.5 For

example, those circuits which have expressly held that Strickland claims may

proceed despite the existence of a valid appeal waiver disagree as to whether the

unprofessional error complained of must have occurred during plea negotiations, in

connection with the appeal waiver itself, or at sentencing.

5 This Court recently granted certiorari in a case arising from the Fifth Circuit

where the first question presented is “[w]hether the only permissible exceptions to a

general appeal waiver are for claims of ineffective assistance of counsel or that the

sentence exceeds the statutory maximum.” Petition for Writ of Certiorari at 1,

Hunter v. United States, No. 24-1063 (Apr. 4, 2025).

The D.C. Circuit has determined that “construing a generic appeal waiver to

extend to ineffective-assistance-of-counsel claims would be inconsistent with [an]

understanding that a defendant must be aware of and understand the risks

involved in his decision.” In re: Sealed Case, 901 F.3d 397, 403 (D.C. Cir. 2018)

(cleaned up).6 The Sixth Circuit likewise “will not enforce” an appeal waiver “if

counsel provided constitutionally ineffective assistance.” Portis v. United States, 33

F.4th 331, 335 (6th Cir. 2022).

The First Circuit applies exceptions to valid appeal waivers in order to

prevent “miscarriage[s] of justice” in situations where “the plea proceedings were

tainted by ineffective assistance of counsel.” United States v. Teeter, 257 F.3d 14, 25

& n.9 (1st Cir. 2001) (emphasis added). Along similar lines, the Seventh Circuit

recently held that “a Sixth Amendment claim of ineffective assistance of counsel is

one of the foremost exceptions to appeal waivers,” but “this exception is limited to

claims that counsel was ineffective during the negotiations of the plea agreement

itself.” United States v. Edwards, 145 F.4th 774, 781 (7th Cir. 2025). In Patel v.

United States, 252 Fed. App’x 970, 975 (11th Cir. 2007), the Eleventh Circuit

likewise determined that an appeal or collateral attack which “explicitly challenges

the validity of [a] guilty plea” may proceed in the face of an appeal waiver. And the

6 The In re: Sealed Case opinion also notes that, “[i]f a generic appeal waiver”

encompassed claims arising from “ineffective assistance of counsel at sentencing,

the waiver then would give rise to a conflict of interest” because “an attorney

generally cannot advise a client about whether to waive a pending claim against the

attorney herself, . . . and the same is necessarily true of advice about whether to

waive a future claim against the attorney.” 901 F.3d at 403-04.

Fifth Circuit has held that “an ineffective assistance of counsel argument survives a

waiver of appeal only when the claimed assistance directly affected the validity of

that waiver or the plea itself.” United States v. White, 307 F.3d 336, 343 (5th Cir.

2002) (emphasis added).7

Like the First Circuit, the Tenth Circuit applies a “miscarriage of justice”

analysis. However, it has found that such miscarriages arise “where ineffective

assistance of counsel in connection with the negotiation of the waiver renders the

waiver invalid.” United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir. 2004) (en

banc) (quotation omitted) (emphasis added). In the Fourth Circuit, by contrast, “a

knowing and voluntary waiver of the right to appeal cannot bar [a] defendant” from

“appeal[ing] his sentence on the ground that ‘the proceedings following entry of the

guilty plea were conducted in violation of his Sixth Amendment right to counsel[.]’”

United States v. Johnson, 410 F.3d 137, 141 (4th Cir. 2005) (quoting United States

v. Attar, 38 F.3d 727, 732 (4th Cir. 1994)) (emphasis added here).

The Court should resolve the second question presented and bring muchneeded uniformity to these divergent standards. “[C]riminal justice today is for the

most part a system of pleas,” Lafler v. Cooper, 566 U.S. 156, 170 (2012), and

criminal defendants who are not themselves experienced federal criminal

practitioners are unlikely to identify viable Strickland claims relating to technical

issues of law unless and until substitute counsel is later appointed or hired to

review their case. See In re Sealed Case, 901 F.3d at 402 (“[A] defendant can

7 See supra n.5.

practically vindicate the right to the effective assistance of counsel at sentencing

only through an appeal or collateral proceeding.”). The reviewability of such claims

based on when an asserted unprofessional error occurred should not depend on the

federal circuit in which a defendant was charged, and the split of circuit authority

relating to this issue is likely to persist in the absence of an intervention from this

Court.

IV.

This case presents an ideal vehicle for the Court to address the

questions presented.

The party-presentation violation was particularly

flagrant.

In this case, as in Sineneng-Smith, the court of appeals concocted and relied

on a dispositive argument that was not presented by either of the parties. Indeed,

the government did not “so much as hint,” 590 U.S. at 377, that the appeal waiver

in petitioner’s plea agreement would preclude review of a meritorious Strickland

claim on appeal. To the contrary, in keeping with the Department of Justice’s policy

of “no longer ask[ing] criminal defendants who plead guilty to waive their right to

bring future claims of ineffective assistance of counsel,” supra n.1, the government

expressly stated, when it was asked to address the issue for the first time at oral

argument, that a criminal defendant may challenge his sentence on appeal,

notwithstanding an appeal waiver, in “circumstances, for example, [where] there’s

something in the record that may suggest ineffective assistance of counsel.” Oral

Argument, at 12:05-12:20.

But the Second Circuit did not only disregard the party presentation

principle and reject petitioner’s appeal based on an issue which the government had

affirmatively declined to present. It did so without providing petitioner notice of,

much less an opportunity to respond to, the court’s sua sponte argument. See Day v.

McDonough, 547 U.S. 198, 210 (2006) (“[B]efore acting on its own initiative, a court

must accord the parties fair notice and an opportunity to present their positions.”).

In this respect, the judicial process employed was far more dismissive of litigants’

interests than the Ninth Circuit process which this Court unanimously found to

constitute an abuse of discretion in Sineneng-Smith. In that case, a circuit panel

improperly appointed amici to present arguments which it had independently

identified, but it then provided the parties an opportunity to respond to those

arguments before the appeal was decided. 590 U.S. at 378-79. Here, on the other

hand, there was no indication prior to the issuance of the summary order that the

Second Circuit would simply reject the government’s concession relating to the

justiciability of Strickland claims in the presence of an otherwise enforceable appeal

waiver. Therefore, beyond the fact that there were no “extraordinary circumstances”

present to “justif[y] the panel’s takeover of the appeal” on the government’s behalf,

id. at 379, the Second Circuit deprived petitioner of the “core” due process right to

“notice and a meaningful opportunity to be heard,” LaChance, 522 U.S. at 266.

It is also relevant that the Second Circuit invoked a non-presented argument

even after petitioner repeatedly and emphatically sought to bring the relevance of

the party presentation principle to its attention. Supra pp. 11-12. Because the panel

affirmatively chose to reject that principle and withhold any candid

acknowledgment of its relevance in the summary order, this case presents a

particularly suitable vehicle for this Court to determine whether, and under what

circumstances, a party-presentation violation also constitutes a violation of due

process.

The federal circuits are split with respect to an issue that

is determinative of petitioner’s ability to raise an

ineffective assistance of counsel claim on appeal.

This case is also an appropriate vehicle for the Court to resolve the existing

circuit split regarding appeal waivers and Strickland claims. Supra pp. 19-21. If the

Second Circuit had followed the D.C. Circuit and the Fourth Circuit in holding that

written appeal waivers do not preclude ineffective assistance of counsel claims

relating to sentencing issues, or if it had joined the First, Fifth, and Seventh

Circuits in upholding appeal waiver exceptions where asserted unprofessional

errors arise during plea negotiations (but not necessarily in connection with an

appeal waiver itself), petitioner’s appeal could not have been dismissed on the

grounds that he “has not argued, much less shown, that the appeal waiver itself

was the result of ineffectiveness of counsel.” App. A5.

Petitioner would have succeeded on his underlying

Strickland claim.

An impartial review of petitioner’s presented Strickland claim would have

resulted in a finding that prior counsel’s stipulation to a “serious violent felony”

enhancement under § 841(b)(1)(A) was an unprofessional error that resulted in a

five-year increase to the mandatory minimum period of supervised release.

In Strickland, 466 U.S. at 688, 694, this Court determined that a Sixth

Amendment ineffective assistance of counsel claim requires a showing that an

attorney’s “representation fell below an objective standard of reasonableness,” and

that “there is a reasonable probability that, but for counsel’s . . . error[], the result of

the proceeding would have been different.” Where such a showing is made, the

remedy “should be tailored to the injury suffered from the constitutional violation.”

United States v. Morrison, 449 U.S. 361, 364 (1981). In this case, petitioner asked

the Second Circuit to determine whether it was “reasonable[] under prevailing

professional norms,” Strickland, 466 U.S. at 688, for his prior attorney to stipulate

to a § 841(b)(1)(A) sentencing enhancement where: (1) there is no binding authority

to indicate that New York P.L. § 160.05, qualifies as a “serious violent felony” under

federal law; (2) the government’s appellate brief repeatedly conceded that there is

an “open” question as to whether P.L. § 160.05 is a “serious violent felony,” see C.A.

Resp. Br. 16, 19; and (3) even a passing review of the relevant statutes confirms

that, absent a stipulation, the enhancement would not apply, see C.A. Br. 31.

Petitioner’s prior purse snatching offense was punishable by a maximum of

seven years’ imprisonment. New York P.L. § 70.00(2)(d). Therefore, it would qualify

as a “serious violent felony” under 21 U.S.C. § 802(59) and 18 U.S.C.

§ 3559(c)(2)(F)(i) only if it “consist[ed] of” the federal robbery crimes chargeable

under 18 U.S.C. §§ 2111, 2113, or 2118. See C.A. Br. 22-24. But each of those federal

crimes require, as essential elements, the taking or attempted taking of property;

(1) “from the person or presence of another”; (2) “by force and violence[,] or by

intimidation.”8 A New York P.L. § 160.05 third-degree robbery, on the other hand,

applies whenever a defendant “forcibly steals property,” but such an offense need

not involve a taking of property “from the person or presence of another” or a taking

that is accomplished “by” force, violence, or intimidation.

Section 160.00(2) of the New York Penal law provides that “[a] person forcibly

steals property when,” at some point “in the course of committing a larceny,” he

uses or threatens physical force against another person “for the purpose of . . .

[c]ompelling the owner of such property or another person to deliver up the property

or to engage in other conduct which aids in the commission of the larceny.”

Moreover, the expansive definition of “larceny” set forth under P.L. § 155.05(2)

includes the “wrongful taking, obtaining, or withholding” of property: (a) through

“trespassory taking, common law larceny by trick, embezzlement, or . . . false

pretenses”; (b) “[b]y acquiring lost property . . . without taking reasonable measures

to return such property to the owner”; (c) by “issuing a bad check”; (d) “[b]y false

8 Courts of appeals have applied the “familiar categorical approach” to determine

whether an offense “consists of” a federal crime enumerated under § 3559(c)(2)(F).

United States v. Pemberton, 85 F.4th 862, 866 (7th Cir. 2023). See United States v.

Leaverton, 895 F.3d 1251, 1254 (10th Cir. 2018); United States v. Wehmhoefer, 835

Fed. App’x 208, 211 (9th Cir. 2020). However, if the categorical approach did not

apply to this issue, and if the facts of petitioner’s prior third-degree robbery

conviction were relevant to its classification as a “serious violent felony,” petitioner’s

attorney would have provided ineffective assistance by failing to invoke

§ 3559(c)(3)(A), which states that “[r]obbery . . . shall not serve as the basis for

sentencing under this subsection if the defendant establishes by clear and

convincing evidence” that: (1) “no firearm or other dangerous weapon” was used or

otherwise involved in the offense; and (2) “the offense did not result in death or

serious bodily injury . . . to any person.” See PSR ¶ 150 (recounting facts of

petitioner’s 2010 purse snatching offense).

promise” of future conduct; (e) “[b]y extortion; (f) “[b]y wage theft”; or (g) “[b]y deed

theft.”

In People v. Saia, 112 A.D.2d 804, 492 N.Y.S.2d 306 (4th Dept. 1985), the

New York Appellate Division rejected a criminal defendant-appellant’s argument

that “robbery cannot be committed by threatening physical force for the purpose of

retaining property” that was previously “acquired by trick or false pretenses.” By

“extending the definition of robbery to the use or threatened use of force for the

purpose of retaining stolen property,” the Saia court concluded that the New York

Legislature did not intend to “distinguish between a taking without consent of the

owner and a taking with consent obtained by fraud.” Id. at 805. And in People v.

Jones, 300 A.D.2d 30, 750 N.Y.S.2d 299 (1st Dept. 2002), the Appellate Division

held that a second-degree robbery conviction was supported by sufficient evidence

that, “after defendant and his accomplice completed a larceny by tricking the victim

into giving them her diamond bracelet, they used force for the purpose of retaining

the bracelet.” These decisions confirm what the plain language of the relevant New

York statutes make clear: that a “forcible stealing” does not require a taking of

property “from the person or presence of another” or a taking that is initially

accomplished “by” force, violence, or intimidation. Accordingly, P.L. § 160.05 does

not “consist of” the federal robbery offenses listed § 3559(c)(2)(F)(i), and in the

absence of a stipulation to the contrary petitioner’s minimum supervised release

term would not have increased from five to ten years based on the counterintuitive

and erroneous claim that a purse snatching offense is a “serious violent felony.”

CONCLUSION

The petition for a writ of certiorari should be granted.

Dated: November 26, 2025

New York, New York

Respectfully submitted,

Lucas Anderson

Counsel of Record

Rothman, Schneider,

Soloway & Stern, LLP

100 Lafayette Street, Ste. 501

New York, New York 10013

(212) 571-5500

landerson@rssslaw.com

APPENDIX

Case: 24-292, 07/08/2025, DktEntry: 60.1, Page 1 of 5

MANDATE

24-292

United States v. Graham

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

“SUMMARY 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

21st day of April, two thousand twenty-five.

Present:

DEBRA ANN LIVINGSTON,

Chief Judge,

RAYMOND J. LOHIER, JR.,

MYRNA PÉREZ,

Circuit Judges.

_____________________________________

UNITED STATES OF AMERICA,

Appellee,

24-292

LAIRON GRAHAM, AKA SHAH, AKA UNCLE SHAH,

AKA UNC

Defendant-Appellant,

KIMBERLY UDREA, THOMAS DEGREE, AKA TOMMY,

JOSEPH WARD, JORDAN DAVIS, AKA LITTLE CORN,

AKA BABY CORN, JOHNNY WILLIAMS, AKA

DOUBLE R, JAMIE WASHINGTON, PATRICK

SCHRECENGOST, AKA COUNTRY, ANTHONY

GRAHAM, AKA UNCLE TONY,

Defendants.

_____________________________________

MANDATE ISSUED ON 07/08/2025

Case: 24-292, 07/08/2025, DktEntry: 60.1, Page 2 of 5

For Appellee:

TIFFANY H. LEE, Assistant United States Attorney,

on behalf of Trini E. Ross, United States Attorney for

the Western District of New York, Buffalo, NY.

For Defendant-Appellant:

LUCAS ANDERSON, Of Counsel, Rothman,

Schneider, Soloway & Stern, LLP, New York, NY.

Appeal from a judgment of the United States District Court for the Western District of New

York (Vilardo, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that this appeal from the judgment of the district court is DISMISSED.

Defendant-Appellant Lairon Graham (“Graham”) appeals from a judgment of the United

States District Court for the Western District of New York (Vilardo, J.), entered on January 25,

2024, sentencing him to a 264-month (22-year) term of imprisonment 1 and a 10-year term of

supervised release upon a guilty plea to (1) one count of conspiracy to possess with intent to

distribute fentanyl, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 851, all in violation

of 21 U.S.C. § 846; and (2) four counts of sex trafficking by force or coercion, in violation of 18

U.S.C. § 1591(a)(1) and 1591(b)(1). On appeal, Graham argues that he requires resentencing

because his trial counsel rendered ineffective assistance by stipulating to treating Graham’s prior

conviction under New York law for third-degree robbery as a “serious violent felony” within the

meaning of 21 U.S.C. § 841(b)(1). 2 He is precluded from doing so by the appeal waiver in his

President Joseph R. Biden Jr. subsequently commuted Graham’s sentence to 150 months, leaving in place the term

and all the conditions of supervised release. At oral argument, Graham renewed a motion to remand and order the

district court to amend his sentence to reflect his post-commutation term of imprisonment. That motion is denied.

While Graham had originally raised a second argument on appeal, Graham acknowledged at oral argument and in a

joint 28(j) letter submitted with the government that he was withdrawing his second argument due to the

commutation of his sentence. See Dkt. 41.

Case: 24-292, 07/08/2025, DktEntry: 60.1, Page 3 of 5

plea agreement. We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

“This Court has repeatedly held a knowing and voluntary waiver of the right to appeal a

sentence is presumptively enforceable.” United States v. Ojeda, 946 F.3d 622, 629 (2d Cir. 2020).

We refuse to enforce such waivers only in certain exceptional circumstances that “occupy a very

circumscribed area of our jurisprudence.” United States v. Borden, 16 F.4th 351, 354–55 (2d Cir.

2021) (internal quotation marks and citation omitted). Waivers are generally enforced because, if

they are not, “the covenant . . . becomes meaningless and would cease to have value as a

bargaining chip in the hands of defendants.” United States v. Yemitan, 70 F.3d 746, 748 (2d Cir.

1995). Accordingly, this Court has only held waivers unenforceable:

(1) where the waiver was not made knowingly, voluntarily, and competently;

(2) where the sentence was based on constitutionally impermissible factors, such as

ethnic, racial, or other prohibited biases; (3) where the government breached the

agreement containing the waiver; (4) where the district court failed to enunciate any

rationale for the defendant’s sentence; [or] (5) where the waiver was unsupported

by consideration.

Cook v. United States, 84 F.4th 118, 122 (2d Cir. 2023) (cleaned up).

Here, Graham’s plea agreement included an appeal waiver providing that:

The defendant understands that Title 18, United States Code, Section 3742 affords a

defendant a limited right to appeal the sentence imposed. The defendant, however,

knowingly waives the right to appeal and collaterally attack any component of a sentence

imposed by the Court which falls within or is less than a term of imprisonment between

360 months and life, a fine of $50,000 to $20,000,000, and a period of supervised release

of 10 years, notwithstanding the manner in which the Court determines the sentence. In

the event of an appeal of the defendant’s sentence by the government, the defendant

reserves the right to argue the correctness of the defendant’s sentence.

[]The defendant understands that by agreeing not to collaterally attack the sentence, the

defendant is waiving the right to challenge the sentence in the event that in the future the

defendant becomes aware of previously unknown facts or a change in the law which the

defendant believes would justify a decrease in the defendant’s sentence.

App’x 60–61 (emphasis added).

Case: 24-292, 07/08/2025, DktEntry: 60.1, Page 4 of 5

Graham does not contends that his waiver was unknowing or involuntary; rather, he argues

that his claim of ineffective assistance of counsel does not fall within the scope of the waiver in

his plea agreement. See, e.g., Appellant Br. at 35 (arguing that “the waiver described in Graham’s

plea agreement does not apply to the issues presented herein”). He is mistaken. Graham asserts

that his counsel’s stipulation to the treatment of his prior conviction for third-degree robbery

constituted ineffective assistance of counsel because it resulted in the inclusion of a 10-year term

of supervised release in his sentence. By entering into the plea agreement, however, Graham

waived his right to “appeal and collaterally attack any component of a sentence imposed by the

Court which falls within or is less than a term of imprisonment between 360 months and life, . . . ,

and a period of supervised release of 10 years, notwithstanding the manner in which the Court

determines the sentence.” App’x 60 (emphasis added). Graham’s current sentence, following his

commutation, is for 150 months followed by 10 years of supervised release. See Dkt. 41 (“[T]he

recent commutation order does not affect the imposed term of supervised release[.]”). Thus, on

its face, the waiver precludes the instant challenge to the length of his term of supervised release—

i.e., “a[] component of [his] sentence.” 3

The mere fact that Graham has asserted an ineffective assistance of counsel claim does not

automatically permit him to escape the terms of his fairly bargained-for appeal waiver. When “the

record does not permit assessment of [a] claim of ineffective assistance and its potential effect on

Graham argues that, because the waiver provides that Graham waived his right to “appeal and collaterally attack”

his sentence, it does not apply if Graham elects to either appeal or collaterally attack. It is true that the word “and” is

subject to different interpretations. But in Pulsifer v. United States, the Supreme Court clarified (in the context of

statutory interpretation) that the proper interpretation of the word “and” can only be determined “by reviewing text in

context.” 601 U.S. 124, 133 (2024). Specifically, “[t]he way a reader assigns meaning to the phrase is to look at the

substance of . . . the items on the list and the way they interact, as against relevant background understandings.” Id.

at 140–41.

Here, the purpose of the waiver was to preclude Graham from both directly appealing or collaterally attacking his

sentence should it fall within a certain favorable range. See App’x 172. Accordingly, Graham may not circumvent

the waiver simply by electing to either appeal or collaterally attack his sentence, but not both.

Case: 24-292, 07/08/2025, DktEntry: 60.1, Page 5 of 5

[an] appeal waiver,” a “defendant’s undertaking not to appeal will be provisionally enforced as to

any appellate claim that falls under the appeal waiver, unless and until he prevails (by a habeas

petition) in proving that his appeal waiver should be voided because he received ineffective

assistance of counsel.” United States v. Oladimeji, 463 F.3d 152, 155 (2d Cir. 2006). “When and

if he proves that contention, any such claim would be considered as a part of the habeas petition.”

Id. Graham’s claim rests upon his trial counsel’s stipulation that Graham’s prior conviction

qualified as a “serious violent felony,” thereby subjecting him to increased penalties. But Graham

has not argued, much less shown, that the appeal waiver itself was the result of ineffectiveness of

counsel. Accordingly, we see no reason not to enforce the waiver. See United States v. Monzon,

359 F.3d 110, 118–19 (2d Cir. 2004) (“[An] appeal waiver would be unenforceable if the record

of the criminal proceeding reveal[s] that the claim that the waiver was the result of ineffective

assistance of counsel was meritorious.” (emphasis added)). Because we find that Graham’s appeal

waiver precludes his claim for ineffective assistance of counsel, we do not reach the merits of his

appeal.

We have considered Graham’s remaining arguments and find them to be without merit.

Accordingly, this appeal from the judgment of the District Court is DISMISSED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

Case: 24-292, 07/01/2025, DktEntry: 59.1, Page 1 of 1

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

_____________________________________________

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

1st day of July, two thousand twenty-five.

________________________________________

United States of America,

Appellee,

ORDER

Docket No: 24-292

Kimberly Udrea, Thomas Degree, AKA Tommy, Joseph

Ward, Jordan Davis, AKA Little Corn, AKA Baby

Corn, Johnny Williams, AKA Double R, Jamie

Washington, Patrick Schrecengost, AKA

Country, Anthony Graham, AKA Uncle Tony,

Defendants,

Lairon Graham, AKA Shah, AKA Uncle Shah, AKA

Unc,

Defendant - Appellant.

_______________________________________

Appellant, Lairon Graham, filed a petition for panel rehearing, or, in the alternative, for

rehearing en banc. The panel that determined the appeal has considered the request for panel

rehearing, and the active members of the Court have considered the request for rehearing en banc.

IT IS HEREBY ORDERED that the petition is denied.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk

STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 2111 – Special maritime and territorial jurisdiction

Whoever, within the special maritime and territorial jurisdiction of the United

States, by force and violence, or by intimidation, takes or attempts to take from

the person or presence of another anything of value, shall be imprisoned not

more than fifteen years.

18 U.S.C. § 2113 – Bank robbery and incidental crimes

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take,

from the person or presence of another, or obtains or attempts to obtain by

extortion any property or money or any other thing of value belonging to, or

in the care, custody, control, management, or possession of, any bank, credit

union, or any savings and loan association . . . [s]hall be fined under this title

and imprisoned not more than twenty years, or both.

18 U.S.C. § 2118 – Robberies and burglaries involving controlled substances

(a) Whoever takes or attempts to take from the person or presence of another by

force or violence or by intimidation any material or compound containing any

quantity of a controlled substance belonging to or in the care, custody,

control, or possession of a person registered with the Drug Enforcement

Administration . . . shall . . . be [guilty of a crime].

18 U.S.C. § 3559(c)(2)(F)

[T]he term “serious violent felony” means—

(i)

a Federal or State offense, by whatever designation and wherever

committed, consisting of . . . robbery (as described in section 2111, 2113, or

2118); . . . and

(ii)

any other offense punishable by a maximum term of imprisonment of 10

years or more that has as an element the use, attempted use, or

threatened use of physical force against the person of another or that, by

its nature, involves a substantial risk that physical force against the

person of another may be used in the course of committing the offense[.]

STATUTORY PROVISIONS INVOLVED, Cont’d

21 U.S.C. § 802(59)

The term “serious violent felony” means—

(A) an offense described in section 3559(c)(2) of Title 18 for which the offender

served a term of imprisonment of more than 12 months; and

(B) any offense that would be a felony in violation of section 113 of title 18, if

the offense were committed in the special maritime and territorial

jurisdiction of the United States, for which the offender served a term of

imprisonment of more than 12 months.

N.Y. Penal Law § 70.00(2)(d) – Sentence of imprisonment for felony

For a class D felony, the term shall be fixed by the court, and shall not exceed

seven years[.]

N.Y. Penal Law § 155.05 – Larceny; defined

(1) A person steals property and commits larceny when, with intent to deprive

another of property or to appropriate the same to himself or to a third

person, he wrongfully takes, obtains or withholds such property from an

owner thereof.

(2) Larceny includes a wrongful taking, obtaining or withholding of another’s

property, with the intent prescribed in subdivision one of this section,

committed in any of the following ways:

(a) By conduct heretofore defined or known as common law larceny by

trespassory taking, common law larceny by trick, embezzlement, or

obtaining property by false pretenses;

(b) By acquiring lost property. A person acquires lost property when he

exercises control over property of another which he knows to have been

lost or mislaid, or to have been delivered under a mistake as to the

identity of the recipient or the nature or amount of the property, without

taking reasonable measures to return such property to the owner;

(d) By false promise. . . . ;

STATUTORY PROVISIONS INVOLVED, Cont’d

N.Y. Penal Law § 155.05 – Cont’d

(e) By extortion. A person obtains money by extortion when he compels or

induces another person to deliver such property to himself or to a third

person by means of instilling in him a fear that, if the property is not so

delivered, the actor or another will:

(i)

Cause physical injury to some person in the future; or

(ii) Cause damage to property; or

(iii) Engage in other conduct constituting a crime; or

(iv) Accuse some person of a crime or cause criminal charges or removal

proceedings to be instituted against him or her; or

(v)

Expose a secret or publicize an asserted fact, whether true or false,

tending to subject some person to hatred, contempt or ridicule; or

(vi) Cause a strike, boycott or other collective labor group action

injurious to some person’s business . . . ; or

(vii) Testify or provide information or withhold testimony or information

with respect to another’s legal claim or defense; or

(viii) Use or abuse his position as a public servant by performing some act

within or related to his official duties, or by failing or refusing to

perform an official duty, in such manner as to affect some person

adversely; or

(ix) Perform any other act which would not in itself materially benefit

the actor but which is calculated to harm another person materially

with respect to such other person’s health, safety, business, calling,

career, financial condition, reputation or personal relationships; or

(f) By wage theft. . . . ; or

(g) By deed theft. . . .

A10

STATUTORY PROVISIONS INVOLVED, Cont’d

N.Y. Penal Law § 160.00 – Robbery; defined

Robbery is forcible stealing. A person forcibly steals property and commits

robbery when, in the course of committing a larceny, he uses or threatens the

immediate use of physical force upon another person for the purpose of:

(1) Preventing or overcoming resistance to the taking of the property or to the

retention thereof immediately after the taking; or

(2) Compelling the owner of such property or another person to deliver up the

property or to engage in other conduct which aids in the commission of the

larceny.

N.Y. Penal Law § 160.05 – Robbery in the third degree

A person is guilty of robbery in the third degree when he forcibly steals property.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.