AEDPA, Habeas
Petition for recall of madate resulting from earlier Habeas is a second/successive petition.
No merit in stay pending upcoming en banc holding on whether summary/brief affirmance by highest state court is the final state decision for purposes of federal habeas review, as it would not alter the merits of the underlying Strickland claim.
Insufficient miscarriage of justice to justify recall of mandate sua sponte.
http://media.ca11.uscourts.gov/opinions/pub/files/201114774.ord.pdf
[CB Editorial: The death penalty is morally unjustifiable.]
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Ninth Circuit: David Zachary v. California Bank and Trust
Bankruptcy
Petitioner can cram down plans over the objection of a dissenting class of unsecured creditors while retaining post-petition property but not while retaining pre-petition property .
(From summary)
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/28/13-16402.pdf
Petitioner can cram down plans over the objection of a dissenting class of unsecured creditors while retaining post-petition property but not while retaining pre-petition property .
(From summary)
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/28/13-16402.pdf
Eighth Circuit: United States v. Quincy Jackson
Immigration
Agency Violence Against Women Act finding that underlying marriage was bona fide did not compel the IJ to accept that finding when balancing deportation arguments (including VAWA) when the IJ had already issued an opinion that the marriage was fraudulent.
http://media.ca8.uscourts.gov/opndir/16/01/143671P.pdf
Agency Violence Against Women Act finding that underlying marriage was bona fide did not compel the IJ to accept that finding when balancing deportation arguments (including VAWA) when the IJ had already issued an opinion that the marriage was fraudulent.
http://media.ca8.uscourts.gov/opndir/16/01/143671P.pdf
Eighth Circuit: Judith Mutie-Timothy v. Loretta E. Lynch
Fourth Amendment
Probable cause for search of aircraft after drug dog alert.
http://media.ca8.uscourts.gov/opndir/16/01/143756P.pdf
Probable cause for search of aircraft after drug dog alert.
http://media.ca8.uscourts.gov/opndir/16/01/143756P.pdf
Seventh Circuit: Charles Donelson v. Randy Pfister
Administrative, Habeas
State denial of claim that witnesses were not provided during prison disciplinary proceeding due to the fact that a form was copied and sent intact as opposed to detached from the receipt portion was not an adequate and independent state ground for denial.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-28/C:14-3395:J:Hamilton:aut:T:fnOp:N:1694237:S:0
State denial of claim that witnesses were not provided during prison disciplinary proceeding due to the fact that a form was copied and sent intact as opposed to detached from the receipt portion was not an adequate and independent state ground for denial.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-28/C:14-3395:J:Hamilton:aut:T:fnOp:N:1694237:S:0
Seventh Circuit: USA v. Terry Smith
Sentencing
Substantial evidence supporting conviction.
Below-guidelines sentence vacated for insufficient explanation of reason for downward departure & conditions on supervised release.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-28/C:14-3744:J:Posner:aut:T:fnOp:N:1693902:S:0
Substantial evidence supporting conviction.
Below-guidelines sentence vacated for insufficient explanation of reason for downward departure & conditions on supervised release.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-28/C:14-3744:J:Posner:aut:T:fnOp:N:1693902:S:0
Seventh Circuit: USA v. Ambrose Clayton
Sentencing
Court did not need to consider deft's postconviction conduct at denial of resentencing, as deft did not raise postconviction behavior at sentencing, and there is no guarantee of effective counsel at that stage of appeal.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-28/C:15-2553:J:PerCuriam:aut:T:fnOp:N:1694235:S:0
Court did not need to consider deft's postconviction conduct at denial of resentencing, as deft did not raise postconviction behavior at sentencing, and there is no guarantee of effective counsel at that stage of appeal.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-28/C:15-2553:J:PerCuriam:aut:T:fnOp:N:1694235:S:0
Seventh Circuit: Hedeen International, LLC v. Zing Toys, Inc.
FRCP
21 Day limit for challenging personal jurisdiction isn't jurisdictional limit on subsequent motions.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-27/C:15-1749:J:Rovner:aut:T:fnOp:N:1693702:S:0
21 Day limit for challenging personal jurisdiction isn't jurisdictional limit on subsequent motions.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-27/C:15-1749:J:Rovner:aut:T:fnOp:N:1693702:S:0
Sixth Circuit: David Eaton v. Lexington-Fayette Urban County
S1983, FRCP
Summary judgment upheld against S1983 challenge to effectiveness of municipality's drug testing program.
http://www.ca6.uscourts.gov/opinions.pdf/16a0019p-06.pdf
Summary judgment upheld against S1983 challenge to effectiveness of municipality's drug testing program.
http://www.ca6.uscourts.gov/opinions.pdf/16a0019p-06.pdf
Fifth Circuit: Marilyn Garner v. Knoll, Incorporated
Bankruptcy, UCC
Although the first claim on the funds transferred into the deposit account survived any secured interest against the acount, a subsequent commingling created a burden on the Trustee to establish that the funds remained identifiable.
http://www.ca5.uscourts.gov/opinions/pub/15/15-10274-CV0.pdf
Although the first claim on the funds transferred into the deposit account survived any secured interest against the acount, a subsequent commingling created a burden on the Trustee to establish that the funds remained identifiable.
http://www.ca5.uscourts.gov/opinions/pub/15/15-10274-CV0.pdf
Fifth Circuit: USA v. Roberth Rojas, et al
Crim
Drug statute constitutional, extraterritorial application valid, extraterritorial application did not violate due process.
Venue was proper in the first judicial district that the defts entered. (Not Cuba.)
Insufficient connection between defts and US at time of foreign wiretap to invoke Fourth Amendment.
Many other challenges, including conspiracy exit instruction, variance from indictment.
http://www.ca5.uscourts.gov/opinions/pub/13/13-40998-CR0.pdf
Drug statute constitutional, extraterritorial application valid, extraterritorial application did not violate due process.
Venue was proper in the first judicial district that the defts entered. (Not Cuba.)
Insufficient connection between defts and US at time of foreign wiretap to invoke Fourth Amendment.
Many other challenges, including conspiracy exit instruction, variance from indictment.
http://www.ca5.uscourts.gov/opinions/pub/13/13-40998-CR0.pdf
Fourth Circuit: US v. David Williams, III
Sentencing
No procedural error in sentencing colloquy.
Sentences imposed as a result of plea agreements based on a specific rule of procedure are not appealable on grounds of substantive unreasonableness unless they expressly incorporate an element of the Guidelines. Circuit split flagged.
http://www.ca4.uscourts.gov/Opinions/Published/144680.P.pdf
No procedural error in sentencing colloquy.
Sentences imposed as a result of plea agreements based on a specific rule of procedure are not appealable on grounds of substantive unreasonableness unless they expressly incorporate an element of the Guidelines. Circuit split flagged.
http://www.ca4.uscourts.gov/Opinions/Published/144680.P.pdf
Third Circuit: In re: Dr. Lakshmi Arunachalam
FRCP
Action seeking Mandamus for judicial disqualification in patent action transferred to the Federal Circuit, as it would have jurisdiction over the final order in the action.
http://www2.ca3.uscourts.gov/opinarch/153569p.pdf
Action seeking Mandamus for judicial disqualification in patent action transferred to the Federal Circuit, as it would have jurisdiction over the final order in the action.
http://www2.ca3.uscourts.gov/opinarch/153569p.pdf
Second Circuit: Lynch v. Ackley
First Amendment, S 1983
Qualified immunity for deft in police labor dispute, as:
Telling reporters to investigate the officer's civil rights complaints was an exercise of speech rights.
Unclear as to whether filing union grievance is a matter of public concern.
No showing of sufficient nexus on free association retaliation.
http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/1/doc/14-3751_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/1/hilite/
Qualified immunity for deft in police labor dispute, as:
Telling reporters to investigate the officer's civil rights complaints was an exercise of speech rights.
Unclear as to whether filing union grievance is a matter of public concern.
No showing of sufficient nexus on free association retaliation.
http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/1/doc/14-3751_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/1/hilite/
Second Circuit: Zurich Am. Ins. Co. v. Team Tankers A.S.
Arbitration, fees
Arbitration did not disregard law.
Although arbitrator's nondisclosure if illness violated the rules of the arbitration, insufficient for vacatur.
Fee-shifting to prevailing party vacated, as consent to arbitration implies consent to challenge in court of competent jurisdiction and if it doesn't, it's unenforcable.
http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/2/doc/14-4036_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/2/hilite/
Arbitration did not disregard law.
Although arbitrator's nondisclosure if illness violated the rules of the arbitration, insufficient for vacatur.
Fee-shifting to prevailing party vacated, as consent to arbitration implies consent to challenge in court of competent jurisdiction and if it doesn't, it's unenforcable.
http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/2/doc/14-4036_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/2/hilite/
Second Circuit: Credit Suisse Secs. LLC v. Tracy, et al.
FINRA, Arbitration
FINRA arbitration code does not bar voluntary pre-dispute waiver of FINRA arbitral forum.
http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/3/doc/15-345_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/3/hilite/
FINRA arbitration code does not bar voluntary pre-dispute waiver of FINRA arbitral forum.
http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/3/doc/15-345_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8d2937c2-ab0e-4998-8a3a-4d871f79f592/3/hilite/
First Circuit: Sena Silva v. Lynch
Immigration
No denial of Due Process when IJ denied continuance in present action to allow a challenge to an earlier action based on insufficiency of counsel.
http://media.ca1.uscourts.gov/pdf.opinions/15-1526U-01A.pdf
No denial of Due Process when IJ denied continuance in present action to allow a challenge to an earlier action based on insufficiency of counsel.
http://media.ca1.uscourts.gov/pdf.opinions/15-1526U-01A.pdf
First Circuit: US v. Peter, Jr.
Sentencing
Counsel's recitation of cooperation at sentencing establishes that judge considered it absent prosecution motion.
Insufficient proof for minor participant reduction.
Judge does not have to itemize mitigating factors at sentencing.
Substantively reasonable.
(Bit of an odd tone to this one. CB)
http://media.ca1.uscourts.gov/pdf.opinions/14-2126U-01A.pdf
Counsel's recitation of cooperation at sentencing establishes that judge considered it absent prosecution motion.
Insufficient proof for minor participant reduction.
Judge does not have to itemize mitigating factors at sentencing.
Substantively reasonable.
(Bit of an odd tone to this one. CB)
http://media.ca1.uscourts.gov/pdf.opinions/14-2126U-01A.pdf
First Circuit: Barbosa v. Mitchell
FRE
Habeas denied for Confrontation Clause challenge to the admission of expert testimony that incorporated research not subject to challenge.
Court declines to assess procedural default against petitioner for lack of contemporaneous objection that resulted in review standard of miscarriage of justice.
Admission of underlying research results themselves ruled harmless error, as the expert testimony referencing it was introduced.
http://media.ca1.uscourts.gov/pdf.opinions/14-1926P-01A.pdf
Habeas denied for Confrontation Clause challenge to the admission of expert testimony that incorporated research not subject to challenge.
Court declines to assess procedural default against petitioner for lack of contemporaneous objection that resulted in review standard of miscarriage of justice.
Admission of underlying research results themselves ruled harmless error, as the expert testimony referencing it was introduced.
http://media.ca1.uscourts.gov/pdf.opinions/14-1926P-01A.pdf
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