Whyte v. Lynch
815 F.3d 92
1st Cir.
2016
Check Treatment
Docket

Anthony McKay WHYTE, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.

No. 14-2357

United States Court of Appeals, First Circuit.

March 21, 2016.

92-93

Before TORRUELLA, LYNCH, and KAYATTA, Circuit Judges.

favor insofar as they concern the Sixth Amendment claim.

This summary disposes of the remaining issue in this appeal. The SJC determined that Butler‘s direct-appeal counsel was not ineffective for failing to make what would have amounted to a losing speedy-trial argument. Butler does not deny that his ineffective-assistance claim must rise or fall with his claim of a speedy-trial violation, and our disposition of the one thus resolves the other.

III

The judgment of the district court is AFFIRMED.

Virginia Benzan, Ragini N. Shah, Suffolk University Law School, Boston, MA, Anthony McKay Whyte, Willimantic, CT, for Petitioner.

Bryan Stuart Beier, Latia N. Bing, Lisa Morinelli, Anthony Wray Norwood, U.S. Dept. of Justice Office of Immigration Litigation, Washington, DC, for Respondent.

ORDER OF COURT

The petition for rehearing is denied. In

, the Second Circuit held that Conn. Gen. Stat. § 53a-61(a)(1) is not categorically a crime of violence as defined in 18 U.S.C. § 16(a). It reasoned that a person may cause physical injury under the Connecticut statute by “guile, deception or deliberate omission,”
, without himself using “physical force” to cause the injury, 18 U.S.C. § 16(a). Petitioner then relied on Chrzanoski and this argument in his opening brief, Brief for Petitioner at 8, 13-16, while the government countered by arguing that the Second Circuit “incorrectly assumed that an individual could be convicted under section 53a-61(a)(1) for injury caused by ‘guile, deception, or even deliberate omission,‘” Brief for Respondent at 26 (quoting
). The Court ultimately adopted Petitioner‘s reasoning in its opinion.

Now, for the first time, the government argues in its petition for rehearing that causing injury not only involves “physical force” in some abstract sense, but also involves the “use of physical force” by the defendant himself even if the defendant‘s misconduct was limited to guile, deception, or deliberate omission. Rather than distinguishing the Supreme Court‘s majority opinion in

, as it did in its brief on appeal, see Brief for Respondent at 22-23, the government now points to Castleman as supporting this argument.

Because this argument was not properly developed by the government in its brief on appeal, the Court never considered it. For purposes of this case only, it was waived.

(new arguments raised for the first time in a petition for rehearing are waived).