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
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.
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
Eleventh Circuit: Johnny Overstreet, Jr. v. Warden
Ineffective assistance
Habeas for ineffective assistance on direct appeal that characterized an issue certain to require reversal as a substantial evidence challenge.
http://media.ca11.uscourts.gov/opinions/pub/files/201314995.pdf
Habeas for ineffective assistance on direct appeal that characterized an issue certain to require reversal as a substantial evidence challenge.
http://media.ca11.uscourts.gov/opinions/pub/files/201314995.pdf
Ninth Circuit: Randolph Wolfson v. Colleen Concannon
Elections, First Amendment, En banc
Strict scrutiny for judicial speech restrictions.
Compelling state interest in personal solicitations regulations for judges.
Recusal doesn't solve perception problems.
Everything upheld under strict scrutiny.
Concurrence - justifiable distinctions between sitting and nonsitting judges.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/27/11-17634.pdf
Strict scrutiny for judicial speech restrictions.
Compelling state interest in personal solicitations regulations for judges.
Recusal doesn't solve perception problems.
Everything upheld under strict scrutiny.
Concurrence - justifiable distinctions between sitting and nonsitting judges.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/27/11-17634.pdf
Ninth Circuit: Presidio Historical Assn v. Presidio Trust
Administrative, Deference
Agency's interpretation of ambiguous statute requiring equivalent rebuilding as "one up, one down" anywhere on the site is unreasonable.
Current plans for building, however, are congruent with statute.
Statute requiring agency consideration does not impose a substantive change in scrutiny on judicial review -- it merely requires that the agency demonstrate that it considered alternatives.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/27/13-16554.pdf
Agency's interpretation of ambiguous statute requiring equivalent rebuilding as "one up, one down" anywhere on the site is unreasonable.
Current plans for building, however, are congruent with statute.
Statute requiring agency consideration does not impose a substantive change in scrutiny on judicial review -- it merely requires that the agency demonstrate that it considered alternatives.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/27/13-16554.pdf
Ninth Circuit: USA v. Raul Cruz-Mendez
Sentencing
Pilot/captain enhancement upheld against fellow at tiller of small open craft.
Sentence generally not unreasonable.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/27/14-50154.pdf
Pilot/captain enhancement upheld against fellow at tiller of small open craft.
Sentence generally not unreasonable.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/27/14-50154.pdf
Ninth Circuit: Dale Bozzio v. EMI Group, LTD.
FRCP, Contracts, Corporations
Under state law, third party beneficiary might be able to state a claim for breach where the promisee is an interposed suspended corporation and the beneficiary has relinquished individual right of action against the counterparty.
Error to dismiss with prejudice, as legal uncertainty might have made amendment of claim worthwhile.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/26/13-15685.pdf
Under state law, third party beneficiary might be able to state a claim for breach where the promisee is an interposed suspended corporation and the beneficiary has relinquished individual right of action against the counterparty.
Error to dismiss with prejudice, as legal uncertainty might have made amendment of claim worthwhile.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/26/13-15685.pdf
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