Petitioner's desire to represent himself was sufficiently unequivocal in rejecting all public defenders and stating that he couldn't afford private counsel. State Habeas denial grounded on the timeliness of the request for self representation was contrary to, or an unreasonable application of federal constitutional law, as there was a clear right to self-representation, since the request was made some weeks before trial. Appellate counsel provided ineffective assistance, as second pro-se request hadn't been included in the appellate record.
Dissent: "Weeks before trial" is too vague to say that no reasonable jurist could have denied the habeas. Brief appearance of private counsel presented timing problems and put into question the unequivocal nature of the request.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/06/16-15832.pdf
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: Chuck Close v. Southeby's Inc.
Express preemption provision in the 1976 Act, together with the provisions on distributions and first sale, preempt state law requiring royalties to the original artist on subsequent sales. Statements of subsequent Congress as to the preemption implied by VARA can't be imputed to the earlier law. Earlier precedent establishing that the 1909 Act did not preempt these claims incorporated common-law notions of distribution and first sale, and is therefore still viable for those claims.
Substantive Due Process undercuts Takings argument, but ultimately a question for remand.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/06/16-56234.pdf
Substantive Due Process undercuts Takings argument, but ultimately a question for remand.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/06/16-56234.pdf
Eighth Circuit: United States v. Terance Morice Highbull
Police officer's question "Do you have the phone" was insufficient to establish that the private citizen was an agent of law enforcement when she searched the vehicle for the phone, as the search was not requested, and the citizen had sufficient private motive to look for the phone.
Eighth Circuit: Mike Winn v. Commissioner, Social Security
It was within the ALJ's discretion to accept specialist medical opinions rather than that of the longtime treating physician.
http://media.ca8.uscourts.gov/opndir/18/07/171987P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/171987P.pdf
Eighth Circuit: United States v. Jeffrey Joseph Pendleton
Given circuit precedent, state Assault statute prohibiting causing the fear of illness or injury is a valid predicate violent crime.
http://media.ca8.uscourts.gov/opndir/18/07/171527P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/171527P.pdf
Eighth Circuit: Sheldon Thompson v. Ray Singleton
Denial of qualified immunity upheld, as the characterization of the petitioner as confrontational was a contested fact for trial, and therefore couldn't be used to establish that there was no controlling precedent prohibiting the officer's tasing of the petitioner.
http://media.ca8.uscourts.gov/opndir/18/07/164080P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/164080P.pdf
Sixth Circuit: James Lossia, Jr. v. Flagstar Bancorp, Inc.
Checking account agreement's incorporation of the rules of the financial transfer system meant that it did not breach the agreement by processing the transactions in the order in which they were presented for payment, as opposed to the order in which the customer initiated them.
Automated imposition of a number of overdraft fees exceeding the agreement's limit did not breach the agreement, as there was a policy of manually correcting the overage on the next business day.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0133p-06.pdf
Automated imposition of a number of overdraft fees exceeding the agreement's limit did not breach the agreement, as there was a policy of manually correcting the overage on the next business day.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0133p-06.pdf
Fifth Circuit: Atchafalaya Basinkeeper, et al v. U.S. Army Corps
Agency's mitigation analysis was sufficient, as the project did not have a significant environmental impact. Use of external mitigation credits was sufficiently explained within the agency's decisionmaking process. Corps recitation of potential cumulative impacts sufficed to establish consideration of cumulative impact.
http://www.ca5.uscourts.gov/opinions/pub/18/18-30257-CV0.pdf
Fifth Circuit: In-N-Out Burger, Incorporated v. NLRB
As the company could not demonstrate that it was trying to create a theatrical reality in the fast-food restaurant, the prohibition on the wearing of advocacy buttons infringed the Act; ALJ's findings on the sturdiness and safety of the button designs was reasonable.
Argument that subsequent buttons might be less safe and fall into the hamburgers was waived, as it wasn't raised before the Board.
http://www.ca5.uscourts.gov/opinions/pub/17/17-60241-CV0.pdf
Argument that subsequent buttons might be less safe and fall into the hamburgers was waived, as it wasn't raised before the Board.
http://www.ca5.uscourts.gov/opinions/pub/17/17-60241-CV0.pdf
Fourth Circuit: Felicia Strothers v. City of Laurel, Maryland
Executive's statement that supervisor wanted to hire someone of a different race, combined with disparate treatment, suffices to establish a genuine issue of material fact as to whether the employee's subsequent complaint was motivated by perceived racial discrimination and therefore protected activity.
http://www.ca4.uscourts.gov/opinions/171237.P.pdf
http://www.ca4.uscourts.gov/opinions/171237.P.pdf
Eighth Circuit: United States v. Keidell Doyal
Prior panel decision partially affirming grounds of an earlier decision vacated by Supreme Court binds the present panel, and circuit precedent holds that under modified categorical review, the state statute is a valid predicate crime of violence. As the charging documents alleged attempt, the only provision of the statute that criminalizes attempt was the provision under which the deft was convicted.
http://media.ca8.uscourts.gov/opndir/18/07/171320P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/171320P.pdf
Eighth Circuit: Scott H. Lansing v. Wells Fargo Bank, N.A.
As the claim based in a loan modification application arose within the pendency of the initial foreclosure action, it was available then as an affirmative defense, and is therefore now barred by res judicata. The present claim based on the loan application violated petitioner's contractual agreement not to judicially challenge the foreclosure action.
Eighth Circuit: Ken Ross, Jr. v. Special Administrative Board
Third party intervenors have Article III standing in an action centered on a consent decree where the intervenor claims that a likely improper enforcement of the consent decree will have adverse consequences for the funding of the schools that their children attend.
http://media.ca8.uscourts.gov/opndir/18/07/163437P.pdf
http://media.ca8.uscourts.gov/opndir/18/07/163437P.pdf
Seventh Circuit: Alvaro Cortina-Chavez v. Jefferson B. Sessions III
Denial of request for sua sponte administrative review is unreviewable.
No abuse of discretion in denying motion to reconsider on the grounds that the petitioner neither alerted the agency to the specific basis for the appeal nor filed a brief within the required schedule, as both grounds operate as independent bases for the decision, and petitioner only appealed the first.
No abuse of discretion in referral to a single judge rather than a panel, since regulations specifically empower a single judge to dismiss on the grounds stated by the agency.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-05/C:17-2116:J:Rovner:aut:T:fnOp:N:2182163:S:0
No abuse of discretion in denying motion to reconsider on the grounds that the petitioner neither alerted the agency to the specific basis for the appeal nor filed a brief within the required schedule, as both grounds operate as independent bases for the decision, and petitioner only appealed the first.
No abuse of discretion in referral to a single judge rather than a panel, since regulations specifically empower a single judge to dismiss on the grounds stated by the agency.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-05/C:17-2116:J:Rovner:aut:T:fnOp:N:2182163:S:0
Sixth Circuit: In re Chenault
Fact of sentence to parole doesn't state a claim of sufficient hardship for student loan debt discharge in bankruptcy.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18b0010p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18b0010p-06.pdf
Sixth Circuit: United States v. Daniel Sexton
Sentencing bump for commission of crime while under sentence was appropriate by the terms of the guidelines, since deft was on summary probation in contemplation of dismissal following a nolo contendere plea.
Leadership sentencing increase appropriate where deft own corporations engaged in the activity and employs admins; existence of other leaders is immaterial.
Within guidelines sentence substantively reasonable.
Forfeiture appropriate to any assets obtained through the crime; there is no need for the deft to have actually received the assets. Tension with S.Ct.U.S. holding on a parallel statute, circuit split flagged.
No plain error in court's acceptance of charge-off methodology and costs in the PSR.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0132p-06.pdf
Leadership sentencing increase appropriate where deft own corporations engaged in the activity and employs admins; existence of other leaders is immaterial.
Within guidelines sentence substantively reasonable.
Forfeiture appropriate to any assets obtained through the crime; there is no need for the deft to have actually received the assets. Tension with S.Ct.U.S. holding on a parallel statute, circuit split flagged.
No plain error in court's acceptance of charge-off methodology and costs in the PSR.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0132p-06.pdf
Sixth Circuit: Jodi Hohman v. Maurice Eadie
By the terms of the statute, taxpayers have a cause of action for improper collection activities, but not for improper assessment activities.
Although the natural persons and small partnerships holding a cause of action under the statute resemble LLCs, LLCs are not within the plain terms of the statute, and do not have a right to file suit.
Discovery properly limited.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0131p-06.pdf
Although the natural persons and small partnerships holding a cause of action under the statute resemble LLCs, LLCs are not within the plain terms of the statute, and do not have a right to file suit.
Discovery properly limited.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0131p-06.pdf
Third Circuit: Clientron Corp v. Devon IT Inc
As there was no showing that the misconduct benefited the defendants personally, District Court was correct in not piercing the corporate veil on a theory of sham, as corporate formalities should be considered differently with respect to closely held or family corporations.
As the discovery sanction against one spouse, holding that a corporation held by a tenancy by the entirety was in fact an alter ego, created a split between federal substantive law for the discovery sanction and state substantive law for the co-tenant by the entirety, it was an abuse of discretion. Under state law, both who hold by a tenancy of the entirety are presumed to act for the benefit of the marriage.
http://www2.ca3.uscourts.gov/opinarch/163432p.pdf
As the discovery sanction against one spouse, holding that a corporation held by a tenancy by the entirety was in fact an alter ego, created a split between federal substantive law for the discovery sanction and state substantive law for the co-tenant by the entirety, it was an abuse of discretion. Under state law, both who hold by a tenancy of the entirety are presumed to act for the benefit of the marriage.
http://www2.ca3.uscourts.gov/opinarch/163432p.pdf
Third Circuit: Ahmed Bakran v. Secretary
As the statute vests the determination of status in the agency and such action is statutorily unreviewable, supporting criteria developed by the agency are also unreviewable, as they are merely interpretive aspects of the determination.
As the felony conviction of the alien's spouse and sponsor does not impede the marriage, but merely the right of the spouse to live in the US, the right to marry is not affected; further, the question of residency is much broader, and the limitation of the rights of the sponsor following a felony conviction is a reasonable one.
As the statute that attached new limitations to the rights of those already convicted was clearly intended to apply to past convictions and referenced post-enactment dangers, there is no violation of Ex Post Facto; waived anyway.
http://www2.ca3.uscourts.gov/opinarch/163440p.pdf
As the felony conviction of the alien's spouse and sponsor does not impede the marriage, but merely the right of the spouse to live in the US, the right to marry is not affected; further, the question of residency is much broader, and the limitation of the rights of the sponsor following a felony conviction is a reasonable one.
As the statute that attached new limitations to the rights of those already convicted was clearly intended to apply to past convictions and referenced post-enactment dangers, there is no violation of Ex Post Facto; waived anyway.
http://www2.ca3.uscourts.gov/opinarch/163440p.pdf
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