Ninth Circuit: Clifford Tindall v. First Solar Inc.

Where FRCP indicates abuse of discretion review, but the dismissal for not stating a claim would usually prompt de novo, circuit precedent compels a three-judge panel to review the claim for abuse of discretion.

Under Delaware law, the Board's role in financial disclosures and press releases is not a business judgment for the purposes of assessing demand futility, since the releases and disclosures are snapshots of past business decisions.  The correct test looks to general oversight.

Where a court denies leave to amend in a situation where it is usually granted absent prejudice, but the rule merely permits granting for good cause, there is no need to cite or discuss the rule, so long as there is no abuse of discretion of the good cause standard.





.
~ ,

Eighth Circuit: Stuart Wright v. United States of America

Local rules mandate that the reply brief to a motion for summary judgment must be in a certain form, not that it must contest all statements of fact not waived.

Under law of the case, basketball player falsely arrested justified the subsequent restraint on his liberty by briefly backing away from the police; this presents no issue for trial.

As the arrest and detention were justified, no abuse of process.

Arrest and tasing midcourt did not rise to the level of assault, as the officers thought that they were arresting a dangerous person.

http://media.ca8.uscourts.gov/opndir/18/06/172274P.pdf


.
~

Eighth Circuit: Jonathan Ervin v. Michael Bowersox

State's use of a video at trial showing the invocation of previously waived Miranda rights in the course of an interrogation and references to the video in opening and closing statements were not an unreasonable application of clearly established federal law.

Factual determinations not unreasonable.

http://media.ca8.uscourts.gov/opndir/18/06/171743P.pdf


.
~ ,

Eighth Circuit: United States v. Hosea Swopes

State statute is a valid ACCA predicate.

Per curiam, simple assertion of precedent.

http://media.ca8.uscourts.gov/opndir/18/06/161797P.pdf
.
~

Eighth Circuit: Jim Sciaroni v. Target Corporation

Class appropriately certified despite court's mistaken finding that class members without present injury would be entitled to a pro rata share of the remainder of the fund.

Class appropriately certified despite potential inter-class conflicts over later-arising harms from the data breach, since all class members suffered the same injury at the same time.

29% Fee award can appropriately be based on a total that includes administrative costs; fees not substantively unreasonable.

Settlement not unfair, despite alleged subtle signs of collusion.

 http://media.ca8.uscourts.gov/opndir/18/06/153909P.pdf
.
~ ,

Fifth Circuit: Esther White v. Cigna Group Insurance

Abuse of discretion for the Plan Administrator not to mention insurer's medical report asserting that the level of drug intoxication was impossible to determine given the tests run, withhold the report from discovery, and deny the claim.

http://www.ca5.uscourts.gov/opinions/pub/17/17-30356-CV0.pdf
.
~

Fifth Circuit: USA v. Candido Hernandez-Avila

Given the recent holding of the US Supreme Court defining the age of consent for the general offense of statutory rape, the state statute is not a valid sentencing predicate, as the state statute is stricter, and a strict liability offense.

Government's post-briefing argument that the crime is a crime of violence under the instant provision of the sentencing guidelines refers to an earlier version of the guidelines with materially different language -- the older version cites crimes with a "substantial risk" of violence.

Contention that the sentence would be justified under another part of the guidelines is not properly before the court, as the question is simply whether the current sentence was correctly imposed.

http://www.ca5.uscourts.gov/opinions/pub/16/16-51009-CR0.pdf


.
~

Fifth Circuit: Edward Busby v. Lorie Davis, Director

Assertion of actual innocence in a second state Habeas that was dismissed summarily with an indication that the court did not reach the merits was not dismissed for procedural default, as the briefing indicates (which would at any rate be a reasonable ruling, since Federal courts are permitted to do such things), but for the alternate reason in the statute, namely that no reasonable juror would have accepted the claim.   As this alternate ground is not challenged, the state denial was not an unreasonable application of facts or federal law.

Second non-AEDPA federal Habeas asserting identical claims is denied on merits.

Ineffective Assistance claim based on direct appeal was not raised in initial state Habeas -- ineffective assistance in collateral proceedings is insufficient excuse for the default of claim, as there is no right to counsel at that stage.

No prejudice from ineffective assistance at trial.


Editorial note:  End the death penalty.
.
~ , ,

First Circuit: US v. Gonzalez-Negron

Souter, by designation.

No plain error in court's acceptance of plea for possession of a weapon in furtherance of a drug crime where the gun and the drugs were found in separate areas of the residence, given modificaitons to gun and gov't proffer to prove role in drug scheme.

No plain error in colloquy's omission of clarification of "in furtherance," as it is a plain term, and there was no showing that deft would have changed the plea.

http://media.ca1.uscourts.gov/pdf.opinions/17-1302P-01A.pdf
.
~ , ,

First Circuit: US v. Benitez-Beltran

Territory's crime of Attempted Murder is a valid predicate offense, since (1) Territory's definition of murder requires purposeful or knowing conduct, and the generic offense merely requires reckless indifference; and (2) the act or omission required for the attempt could be counted as the substantial step in furtherance, cf. MPC.

Government's mention of impermissible sentencing factors at sentencing was insufficient to establish that the court relied on them in sentencing.

No substantive error in upward variance, as court developed a theory of recidivism; no error in court's using arguments offered in mitigation as factors weighing in favor of a higher sentence, given the concern with recidivism.

No substantive error for a ten-year felon-in-possession sentence to be served consecutively to the existing 90 year sentence for aggravated robbery.

 http://media.ca1.uscourts.gov/pdf.opinions/17-1161P-01A.pdf
.
~ ,

First Circuit: US v. Serrano-Acevedo

Insufficient articulable grounds for a protective sweep where two armed men robbed a bank, and both had been detained prior to the sweep through the house.

Subsequent consent to search was tainted by the fruits of the sweep.

Court's instruction sufficient to cure in-court statement by police officer saying that the robbers had been identified to him by name by an informant.

Other hearsay harmless. 


http://media.ca1.uscourts.gov/pdf.opinions/16-2009P-01A.pdf
.
~ ,

First Circuit: US v. Tanco-Pizarro

In a revocation of supervised release proceeding, challenges raised for the first time in a motion to reconsider the sentence are not preserved for appeal.

Absent a showing of potentially exculpatory evidence, no plain error in denial of discovery and continuance in revocation hearing, given indictment handed down in a parallel proceeding,.

No plain error in considering the magnitude of the offense and the need for just punishment in the revocation proceeding, as they speak to the magnitude of the breach of trust in the parole violation.

Prior compliance with parole waived for not being raised below.

No plain error in an upward variance five times the upper limit of the range, as adequately discussed at sentencing.

Substantively, no abuse of discretion in the sentence, as it's not implausible or indefensible.


.
~
Subscribe to: Posts (Atom)