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https://www.courtlistener.com/api/rest/v3/opinions/8478872/ | OPINION
ROTH, Circuit Judge:
Dion Muth appeals the denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). The District Court had jurisdiction under 18 U.S.C. § 3231, and this Court has jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s interpretation of the Sentencing Guidelines is de novo, and our review of its decision to deny Muth’s sentence reduction is for abuse of discretion. United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009).
Because we write primarily for the parties, we only briefly recite the facts. Muth pleaded guilty to charges of possession with intent to distribute crack cocaine and powder cocaine, in violation of 21 U.S.C. § 841(a)(1). The United States Probation Office calculated a base offense level of 30 for this crime and an offense level of 32 under the Career Offender enhancement, U.S.S.G. § 4B1.1. The District Court applied the higher offense level of 32, pursuant to § 4B1.1(b), in sentencing Muth to 150 months.
Subsequently, the United States Sentencing Commission retroactively amended the guidelines concerning crack cocaine, *243generally reducing the base offense levels by two. U.S.S.G.App. C, Amend. 706 (Nov. 1, 2007). Muth then moved for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on that amendment. The District Court found that Amendment 706 did not apply to Muth, since his sentence was based on the Career Offender enhancement and not his crack cocaine conviction, consistent with this Court’s Mateo decision.
This Court determined in Mateo that Amendment 706 does not apply to career offenders because their sentences are based on the Career Offender enhancements instead of the crack cocaine offense levels. 560 F.3d at 155. Muth acknowledges that Mateo is controlling, but he appeals this decision for the purpose of preserving this issue for future review. Because Mateo is clear and controlling, we will affirm the judgment of the District Court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478875/ | OPINION
PER CURIAM.
Petitioner, Wimalarathne Adhikari Ara-chchillage, seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons,- we 'will deny his petition.
I.
Arachehillage, a native and citizen of Sri Lanka, legally entered the United States on a visa on October 24, 2004. Arachchil-lage remained in the United States beyond the authorized stay period. He was served with a Notice to Appear and charged as removable under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as an alien who had remained in the United States for a time longer than permitted. On March 21, 2007, he filed an application for asylum and withholding of removal, and also sought protection under the Convention Against Torture (“CAT”).
Arachehillage sought asylum on account of his political opinion as a member of the United National Party (“UNP”), a rival political party to the JVP.1 Arachehillage alleged that the JVP, formerly a terrorist group that took control of the parliament in April 2004, sought vengeance against the UNP. He testified that members from the JVP threw rocks and fired shots at the factory building where he worked, and came to his home and threatened him with death, causing him to flee Sri Lanka. Ara-chchillage testified that he left Sri Lanka for two weeks to escape the JVP, and when he returned, the death threats continued. Arachehillage detailed an incident where he witnessed the abduction of a political colleague; although he did not know who participated in the abduction, he suspected it was members of the JVP. In addition, Arachehillage testified that he had never been physically assaulted or arrested by the police or any group in Sri Lanka, but because of his fear of the ongoing civil strife, he decided to flee Sri Lanka permanently.
Arachehillage claimed that he did not apply for asylum upon arriving in the United States because he was afraid that he could be harmed and did not know that he could file for protection. He testified that his family’s house was destroyed by fire in January 2007, and stated that his father suspected the JVP, but admitted that there were no witnesses and he did not know who was responsible. He also discussed how his housekeeper in Sri Lan-ka quit after being threatened and stated that someone stole garden tools and livestock from his property. He did not know who was involved with these incidents.
The IJ determined that Arachehillage was statutorily ineligible for asylum because his application was time-barred and he failed to qualify for any exceptions to the one-year bar. In analyzing Arachchil-lage’s claim for withholding of removal, the IJ found that he had not experienced past persecution and could not show well-founded fear of future persecution. Thus, he failed to meet the stricter burden of proof for withholding of removal. The IJ also concluded that Arachehillage did not show that he should receive CAT protection. The BIA agreed with the IJ’s determination that Arachchillage’s asylum application was time-barred, that he failed to demonstrate persecution justifying withholding of removal, and that he was ineligible for CAT protection. The BIA dismissed the appeal, and Arachehillage, through counsel, filed a timely petition for *245review. The government opposes the petition.
II.
Under the Immigration and Nationality Act (“INA”), “[n]o court shall have jurisdiction to review any determination of the Attorney General” that an asylum application is untimely. 8 U.S.C. § 1158(a)(8). Thus, we lack jurisdiction to review the agency’s dismissal of Arachchillage’s asylum application as barred by the one-year limitations period, as well as whether the statutory period was tolled by changed conditions. See Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.2003). Although the REAL ID Act of 2005, 8 U.S.C. § 1252(a)(2)(D), restored judicial review of constitutional claims and questions of law presented in petitions for review, Ara-chchillage presents no such claim regarding the timeliness of his asylum application. See Jarbough v. Att’y Gen., 483 F.3d 184, 188 (3d Cir.2007).
We do, however, have jurisdiction over Arachchillage’s challenge to the denial of withholding of removal and relief under the CAT. See Tarrawally, 338 F.3d at 185-86. We review these factual determinations under the substantial evidence standard, and will uphold the decisions “unless the evidence not only supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005) (internal citations omitted).
To qualify for withholding of removal, Arachchillage must show that if returned to Sri Lanka, a clear probability exists that his life or freedom would be threatened because of his political opinion. See Li Wu Lin v. INS, 238 F.3d 239, 244 (3d Cir.2001). Withholding of removal has a higher burden of proof than asylum. Id.; Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir.2003). To meet the more stringent standard for withholding of removal, an applicant must provide objective evidence that future persecution is “more likely than not” to occur upon removal. Lukwago, 329 F.3d at 182 (citing 8 C.F.R. § 208.16(b)(2)); see also Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir.2005).
We agree that Arachchillage failed to prove a well-founded fear of future persecution.2 Arachchillage’s claims are based on speculation that the JVP was responsible for the abduction of a political colleague and the burning of his father’s house. He provides no objective evidence that he will be targeted on account of his involvement with UNP or his political beliefs if he returns to Sri Lanka. He does not show that the government would be unwilling or unable to control any alleged persecution, especially when in light of his testimony regarding the efforts by the Sri Lankan police to investigate his colleague’s abduction. Cf. Lie v. Ashcroft, 396 F.3d 530, 537-38 (3d Cir.2005). Arachchillage also testified that he was able to return to Sri Lanka, unharmed, after a two-week trip abroad, as well as depart Sri Lanka without incident using his own passport. This evidence undercuts his claim of a clear probability of persecution. See Toure v. Att’y Gen., 443 F.3d 310, 318 (3d Cir.2006).
Finally, the record is devoid of any evidence that would render Arachchillage eligible for CAT protection, as he fails to show that it more likely than not that he will face torture if removed to Sri Lanka. See Zubeda v. Ashcroft, 333 F.3d 463, 471 *246(3d Cir.2003). Accordingly, we will deny Arachchillage’s petition.
. JVP stands for Janatha Vimukthi Peramuna (People's Liberation Front).
. Arachchillage did not contest on appeal to the BIA whether the IJ erred in determining that he failed to demonstrate past persecution. Thus, he has failed to exhaust his administrative remedies regarding this issue, and this Court lacks jurisdiction to address this issue. See 8 U.S.C. § 1252(d)(1). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478876/ | OPINION
SMITH, Circuit Judge.
Kristin Baum appeals the District Court’s entry of summary judgment in favor of AstraZeneca, her former employer. Baum sought relief under the Pennsylvania Minimum Wage Act (“PMWA”), 43 P.S. § 333.101 et seq., based on AstraZ-eneca’s purported failure to pay her for overtime work. The District Court concluded that Baum fell under the outside salesperson exemption of the PMWA, id. § 333.105(a)(5), and entered summary *247judgment in favor of AstraZeneca.1 We will affirm on different grounds.
I.
Facts
Baum worked as a Pharmaceutical Sales Specialist (“PSS”) for AstraZeneca from May 1, 2003, to November 1, 2006.2 As a PSS, Baum promoted AstraZeneca pharmaceuticals directly to physicians. She regularly visited approximately 150 physicians in her assigned territory, answering questions about AstraZeneca products, building relationships with physicians and their staffs, and trying to get physicians to commit to prescribing AstraZeneca products. Because company policy, federal regulations, and federal laws controlled the scope and nature of Baum’s interactions with physicians, AstraZeneca trained her on how to conduct a physician visit. Some of Baum’s interactions with physicians were “canned speeches” she learned through AstraZeneca’s in-house training.
To gain access to physicians, Baum would, among other things, schedule “access meals” where she would provide breakfast, lunch, or dinner to a physician, the physician’s staff, or both. These meals provided Baum opportunities to promote AstraZeneca products to physicians and their staffs. Baum also set up “prep” programs where physicians, some of whom were selected by her, addressed other physicians on medical topics. In the same vein, Baum arranged peer-to-peer meetings where physicians selected by AstraZ-eneca would meet with other physicians.
Baum normally worked sixty to seventy hours per week. She called on eight or nine physicians a day, amounting to ten to twelve hours a day in the field. On top of her field work, Baum spent approximately an hour each day checking e-mails, filling out expense reports, and worldng on spreadsheets. Baum’s base salary was $63,000.
Procedural History
Baum filed suit against AstraZeneca on March 27, 2007, in the Court of Common Pleas of Westmoreland County, Pennsylvania. On April 20, 2007, AstraZeneca removed the case to the United States District Court for the Western District of Pennsylvania. AstraZeneca later moved for summary judgment, arguing that Baum fell under the outside salesperson and administrative employee exemptions of the PMWA. The District Court concluded that Baum fell under the former exemption and granted AstraZeneca’s motion for summary judgment on March 31, 2009. Baum filed this timely appeal.
II.
We exercise “plenary review over the District Court’s grant of summary juclgment[.]” Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir.2005) (quoting Abramson v. William Paterson Coll, of N.J., 260 F.3d 265, 276 (3d Cir.2001)). A court should grant summary judgment “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). In applying that standard, “a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party’s favor.” Shuman, 422 F.3d *248at 146 (quoting Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir.1994)). “We may affirm the District Court on any grounds supported by the record.” Nicini v. Morra, 212 F.3d 798, 805 (3d Cir.2000) (en banc).
III.
Under the PMWA’s administrative employee exemption, anyone employed in a “bona fide ... administrative ... capacity” is exempt from the PMWA’s overtime protections. 43 P.S. § 333.105(a)(5). The exemption applies to employees whose (1) salaried compensation is at least “$250 per week, exclusive of board, lodging or other facilities,” 34 Pa.Code § 231.83(5), (2) “primary duty consists of the performance of office or nonmanual work directly related to management policies or general operation of his employer or the customers of the employer,” id. § 231.83(1), and (3) primary duty “requir[es] the exercise of discretion and independent judgment,” id. § 231.83(5).3 “In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered.” 29 C.F.R. § 541.202(a) (explaining “discretion and independent judgment” for the purposes of the Fair Labor Standards Act).4 Baum’s employment at AstraZeneca satisfied these requirements.5
The salary requirement of $250 per week was indisputably satisfied. Baum’s base salary was $63,000, which amounts to approximately $1,211 per week. The second requirement, performance of nonman-ual work directly related to AstraZeneca’s general operation, see 34 Pa. Code § 231.83(1), was satisfied by Baum’s marketing and advertising of AstraZeneca’s products, see 29 C.F.R. § 541.201(b) (‘Work directly related to ... general business operations includes ... work in ... advertising [and] marketing^]”). See Reich v. John Alden Life Ins. Co., 126 F.3d 1, 12 (1st Cir.1997) (applying FLSA administrative employee exemption to insurance marketing representatives); see also Reich v. Avoca Motel Corp., 82 F.3d 238, 240 n. 5 (8th Cir.1996) (stating that “engaging in ‘public relations’ work to gain repeat customers” was an administrative task under the FLSA). Baum visited physicians and organized events, such as access meals, prep programs, and peer-to-peer meetings.6 These activities “dissemi-nat[ed] information to the marketplace [and increased] understanding [of] customers and competitors” and thus were “directly related to [AstraZeneca’s general] *249operations[.]” John Alden Life Ins. Co., 126 F.3d at 12.
The third requirement was also satisfied. Baum’s “work required] the exercise of discretion and independent judgment.” 84 Pa.Code § 231.83(5). Baum had significant discretion in how she would approach physicians, whether it be through access meals, peer-to-peer meetings, or other means. In other words, she had to “compar[e] and ... evaluate] ... possible courses of conduct, and ... mak[e] a decision after the various possibilities ha[d] been considered.” 29 C.F.R. § 541.202(a). According to her resume, Baum “used innovative themes to gain access in offices where the physicians were difficult to see[.]” At her deposition she stated that, depending on the physician, she would change her promotion strategy:
Q: How would you change your promotion around depending on [the needs of the practice]?
A: If [the physician was not] writing, then we would just ask more questions. Get more data from the doctor. And do what we could to get them to -write more. Given the tools we had by the company. I mean, if it meant bringing in a national speaker. I mean, whatever approved resources that I had there approved by the company, that is what I would use.
In addition, Baum spent the majority of her time in the field, unsupervised, calling on physicians. See 29 C.F.R. § 541.202(c) (stating that an employee exercises discretion and independent judgment where she “has authority to make an independent choice, free from immediate direction or supervision”).7 Each day, Baum met with other PSSs and they collectively determined which physicians each PSS would visit that day. Baum decided how much time she would spend with a given physician depending on whether the physician was interested in her product. She also decided whether she would use a detail aid in her visit. Every visit was somewhat unique because each physician had different preferences, interests, and availability. After each visit, Baum would make post-call notes to record the details of the conversation. On future visits, she would avoid repeating a message the physician had recently heard. Overall, Baum’s day-to-day activities involved making numerous independent judgments on how best to promote AstraZeneca’s products.
Moreover, Baum’s duties were very similar to the plaintiff’s duties in Smith v. Johnson & Johnson, 593 F.3d 280 (3d Cir.2010), where we held that a pharmaceutical sales representative fell under the administrative employee exemption of the FLSA. Id. at 285. In Smith, the plaintiff, Patty Lee Smith, was tasked with visiting an average of ten physicians per day to extol the benefits of Johnson & Johnson’s pharmaceuticals. Id. at 282. Baum had a similar workload. She visited eight or nine physicians per day. Smith, in an effort to cultivate relationships with physicians, would bring food and coffee to physicians’ offices. Id. Baum similarly organized access meals. On physician visits, Smith “worked off of a prepared ‘message’ ” provided by her employer, id., just like Baum. Numerous other similarities exist. For example, both individuals could *250use only certain approved visual aids in their presentations to physicians, id., both were trained on how to conduct a physician visit by their employer, id., and both prepared post-call notes after physician visits, id. at 283. Thus, our conclusion that Baum exercised discretion and independent judgment in her day-to-day activities is further supported by the numerous similarities between Baum and Smith’s roles. See id. at 282-83.
IV.
To summarize, Baum’s salary of $1,211 per week exceeded the minimum salary requirement of $250 per week. Her promotional activities directly related to the general operation of AstraZeneca because she was involved in advertising and marketing AstraZeneca’s products. Baum’s day-to-day interactions with physicians required her to exercise a significant amount of discretion and independent judgment. Baum chose how she would promote As-traZeneca products to each physician in her territory. Her approach would change depending on the physician she was visiting. Based on these determinations, we conclude that Baum satisfied all the requirements of the PMWA’s administrative employee exemption, and she cannot avail herself of the PMWA’s overtime protections. Thus, we will affirm the District Court’s judgment.
. We have jurisdiction under 28 U.S.C. § 1291. The District Court exercised jurisdiction under 28 U.S.C. § 1332.
. Because we write only for the parties, we will presume knowledge of the record and recount the facts only briefly.
. The exemption also applies under other circumstances irrelevant to the instant case.
. Pennsylvania courts have looked to federal law regarding the Fair Labor Standards Act (“FLSA”) for guidance in applying the PMWA. Commonwealth of Pennsylvania Dept. of Labor and Indus., Bureau of Labor Law Compliance v. Stuber, 822 A.2d 870, 873 (Pa.Commw.Ct.2003), aff’d, 580 Pa. 66, 859 A.2d 1253 (2004) (applying “federal case law” regarding the FLSA to a PMWA claim). According to the Pennsylvania courts, "it is proper to give deference to federal interpretation of a federal statute when the state statute substantially parallels it.” Id.
. We need not reach the issue of whether Baum fell under the outside salesperson exemption of the PMWA, 43 P.S. § 333.105(a)(5). We may affirm the District Court on any grounds supported by the record. Nicini, 212 F.3d at 805.
. Our focus on promotion, advertising, and marketing should not be construed to have any bearing on the issue of whether a PSS makes sales for the puiposes of the PMWA. That issue is not addressed in this decision.
. Baum argues that she was subject to extensive oversight by her manager because she had to check her voice mail and e-mail three times a day. Mere oversight by a manager, however, cannot overwhelm the autonomy with which Baum operated on a daily basis while she was out in the field. See 29 C.F.R. § 541.202(c) (“[E]mployees can exercise discretion and independent judgment even if their decisions or recommendations are reviewed at a higher level.”). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478878/ | OPINION
PER CURIAM.
Raheem Taylor, a prisoner in New Jersey proceeding pro se, appeals the District Court decision dismissing his petition under 28 U.S.C. § 2254 for failure to exhaust his claims in state court. For the reasons that follow, we will affirm.
I.
In February 2007, Taylor was convicted in Superior Court, Burlington County, of second-degree robbery. He received a sentence of five years’ imprisonment. Taylor was represented by a public defender at trial and, after his conviction, requested that his attorney file a notice of appeal.
Although the notice of appeal was due before the end of April 2007, Taylor’s attorney failed to comply with his request. Taylor claimed that he made repeated attempts to contact his public defender, but received no response. In May 2007, Taylor sent several letters to the Clerk of the Superior Court, Appellate Division, complaining of his lawyer’s delay and seeking assistance. The Clerk provided Taylor with paperwork to proceed pro se and to file an appeal nunc pro tunc. Taylor sent the paperwork back, but the Clerk did not file it, presumably because the court accepted a late notice of appeal filed at the end of May by the public defender.
Thereafter, Taylor claimed, he continued his attempts to contact the public defender in furtherance of his appeal, but received no response. In September 2007, Taylor informed his attorney and the Appellate Division that he wished to proceed pro se. He then directed the Public Defender’s Office to order the transcripts he needed for his appeal. After a series of back-and-forth communications between Taylor, the Appellate Division Clerk’s Office, and the Public Defender’s Office, his motion was finally granted on May 28, 2008, pending a hearing.
While the motion to proceed pro se was pending, Taylor filed in the District Court a petition under 28 U.S.C. § 2254. Taylor argued that the delay in his state court proceedings — which stemmed from allegedly inadequate performance on the part of his public defender, unnecessary obstacles imposed by the Appellate Division Clerk’s Office, and a backlog in the Appellate Division that would result in disposition of his appeal being further prolonged- — amounted to a deprivation of his right to due process. The District Court dismissed the petition without prejudice because Taylor had not first exhausted available state court remedies. Taylor filed a notice of appeal, and we granted a certificate of appealability on the question whether the District Court should have *252excused exhaustion as a result of inordinate delay.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a District Court’s denial of a § 2254 petition when it did not conduct an evidentiary hearing. See Thomas v. Carroll, 581 F.3d 118, 128-24 (3d Cir.2009). Generally, a District Court may not entertain a § 2254 petition unless the applicant has exhausted all available state remedies. See § 2254(b)(1)(A). However, exhaustion may be excused if state remedies are absent or too ineffective to protect the applicant’s rights. See § 2254(b)(1)(B). Thus, although the exhaustion requirement exists as a matter of comity, see Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), that principle “weighs less heavily [when] the state has had an ample opportunity to pass upon the matter and has failed to sufficiently explain its ... delay,” and exhaustion may be excused. Hankins v. Fulcomer, 941 F.2d 246, 250 (3d Cir.1991); see also Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d Cir.1986).
Whether a delay is sufficiently “inordinate” to excuse exhaustion depends on the conduct of the appellant, interference by the state in the timely disposition of the matter, the progress made in state court, and the length of the delay. See Lee v. Stickman, 357 F.3d 338, 341-44 (3d Cir.2004). It appears that Taylor diligently attempted to have his public defender pursue his appeal and, when that approach proved unavailing, took it upon himself to do so. Despite his efforts, however, Taylor encountered some notable delays: the Clerk of the Appellate Division apparently provided conflicting information about what Taylor needed to do to proceed with his appeal; the public defender ordered incorrect transcripts and, when informed about the mistake, failed to promptly order the correct transcripts; and Taylor’s motion to proceed pro se, followed by a waiver of counsel hearing, took nearly six months to adjudicate. In total, about fifteen months elapsed from the time Taylor was sentenced (at which time he presumably decided to appeal) until he filed his § 2254 petition in the District Court.
We conclude, however, that the fifteen-month delay Taylor endured, although unfortunate, was not so egregious as to require excusing exhaustion. Much of the delay in this case was the result of apparent miscommunication and, arguably, a lack of diligent effort on the part of Taylor’s former attorneys to provide him with the transcripts he requested. On the other hand, Taylor has also prolonged the duration of his appeal by requesting several extensions of the briefing schedule— which was first issued in 2008 — so he could obtain these transcripts. Moreover, it appears that the Appellate Division has made efforts to further Taylor’s case — in particular, making efforts to ensure that Taylor receives the transcripts he claims are necessary to prepare his brief. We also take judicial notice that, as recently as December 2009, the Appellate Division granted yet another motion by Taylor to extend his time to file a brief and crafted a solution to Taylor’s allegation that portions of his transcript remain missing.1 In short, though he has certainly endured a delay, Taylor has not experienced the type of delay that warrants excusing the § 2254 exhaustion requirement. See, e.g., Lee, 357 F.3d at 341-44 (excusing exhaustion *253after 8-year delay caused by administrative mistakes); Moore v. Deputy Comm’r of SCI—Huntingdon, 946 F.2d 236, 242-43 (3d Cir.1991) (excusing exhaustion after state post-conviction petition lingered in state court for 40 months without any progress); Wojtczak, 800 F.2d at 354 (excusing exhaustion after 33-month delay, where multiple court-appointed attorneys failed to prosecute the appeal, and the state court failed to conduct any hearing).
We are confident that the Appellate Division will continue its efforts to resolve Taylor’s appeal in a timely manner. Accordingly, we will affirm. Taylor’s motion for expedited disposition of his appeal is denied.2
. Specifically, the Appellate Division instructed Taylor to file with his brief a certification averring the content of any missing transcript, its relevance, and the impact of its non-production.
. We note that the motion to expedite was filed after the Clerk advised Taylor that this matter would be submitted pursuant to Rule 34.1(a) on March 23, 2010. The motion and the Clerk’s letter apparently crossed in the mail. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478880/ | OPINION OF THE COURT
FISHER, Circuit Judge.
We are asked in this appeal to determine whether the District Court erred in *254holding that, under Pennsylvania law, an insurer cannot seek equitable contribution from another insurer of a mutual insured when it failed to present evidence demonstrating it made payments on behalf of the mutual insured. For the reasons stated herein, we will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
Atlas America, Inc. (“America”) is in the business of owning and developing various natural gas production wells. Its wholly-owned subsidiary Atlas Resources (“Resources”) was the operator of certain America wells, including the well at issue in this case (the “Ronco well”). America entered into a master work agreement with Gene D. Yost & Sons, Inc. (‘Yost”) for the purpose of engaging Yost to drill natural gas development wells, including the Ronco well. Resources entered into a drilling contract with Yost specifically for the Ronco well. The drilling contract, to which only Yost and Resources are parties, contains an assumption of liability clause that states that Resources will indemnify Yost for claims arising out of Yost’s conduct under the drilling contract.
The parties in interest in this case are the insurance companies of America, Resources and Yost. Plaintiff-appellants Great Northern Insurance Company (“Great Northern”) and Federal Insurance Company (“Federal”) are both members of the Chubb Group of Insurance Companies (collectively “Chubb”). Great Northern issued a primary policy on which America was the first named insured and Resources was an additional named insured. Federal issued an umbrella policy on which both America and Resources were named insureds. Defendant-appellee Greenwich Insurance Company (“Greenwich”) issued a policy on which Yost was a named insured and Resources was an additional insured.
On February 2, 2004, a blow-out occurred at the Ronco well. The resulting fire and by-products caused property damage to homes, automobiles, and personal property of third parties in nearby towns. As a result of cleanup expenses and damage incurred by third parties, Chubb paid out the Great Northern policy limit of $1,000,000 and an additional $605,366.83 under the Federal umbrella policy.
Chubb seeks equitable contribution from Greenwich on the grounds that some portion of its payments was in discharge of Greenwich’s obligation to pay on behalf of Resources as an additional named insured on Yost’s Greenwich policy. The District Court granted judgment in favor of Greenwich. This timely appeal followed.
II.
The District Court exercised jurisdiction under 28 U.S.C. § 1332(a)(1) and applied the choice of law rules applicable in the Commonwealth of Pennsylvania. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review the denial of a request for an equitable remedy for abuse of discretion. Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 134 (3d Cir.2000).
III.
To recover on a claim of equitable contribution under Pennsylvania law, an insurer must show by a preponderance of the evidence that (1) it is one of several parties liable for a common debt or obligation; and (2) it discharged the debt for the benefit of the other parties. See In re Mellon’s Estate, 347 Pa. 520, 32 A.2d 749, 757 (1943).
*255At trial, Chubb successfully showed that it and Greenwich were liable under their respective insurance policies for a common obligation to Resources, thus satisfying the first element of an equitable contribution claim. However, because the District Court could not determine whether any of the third-party damage claims were paid on behalf of Resources, the District Court held that Chubb’s failure to allocate liability between the insureds caused its claim for equitable contribution to fail. (See App. at A114 (“I have serious questions about how I will do this allocation when nothing has been presented to me. It could be a hundred percent, it could be zero percent.”).)
We agree with the District Court that Chubb offered insufficient evidence at trial to guide the Court in apportioning the claim payments between America and Resources. Chubb’s claims adjuster offered contradictory testimony regarding the basis for having made the claim payments, indicating in deposition that all payments had been made on behalf of America and then indicating at trial that payments had been made on behalf of Resources as the operator of the well. Pre-suit correspondence from Chubb consistently maintained that payments had been made on behalf of America exclusively. While we recognize, as did the District Court, that it is industry practice to refer to a policy by the first named insured, this does not excuse the absence of evidence of specific apportionment when an insurer turns to a court seeking equitable contribution.1
Additionally, Chubb failed to introduce evidence of negligence or other legal liability on behalf of Resources for the blowout. The Chubb claims adjuster indicated that there could have been liability as a result of actions by an insured, but never attempted to apportion specific liability to America or Resources. Absent an indication of how to allocate legal liability, the District Court was left to speculate as to whether Chubb made any payments whatsoever on behalf of Atlas Resources.
On appeal, Chubb primarily contends that the District Court erred when it failed to recognize the indemnity clause contained in the drilling contract between Yost and Resources. We find this argument irrelevant. The dispositive question is allocation of payments between America and Resources — e.g., what portion of Chubb’s payment covered Resources’ liability and therefore potentially implicates Greenwich’s policy. Assuming arguendo that Resources was required to contractually indemnify Yost, we would merely have one more unquantifiable basis for Resource’s liability. Because, on the facts before us, it remains possible that Chubb paid nothing on behalf of Resources, this contractual indemnification argument gets us no further into the second element of an equitable contribution claim.
Finally, Chubb contends that the practical effect of the District Court’s determination is that insurance claims adjusters will be forced to apportion liability and thereby have the power to “make legally binding liability determinations” which would effectively “usurp the judicial system and produce subjective results.” (Chubb Br. at 25.) We disagree. A claims adjuster’s determination of respective liability, while certainly helpful, would *256not have been the only evidence that might have aided the District Court in its equitable apportionment. Evidence of comparative negligence on the part of the insureds, acknowledgment of shared liability or payment on behalf of a mutual insured, or even a concerted effort by the litigants to reduce general allegations to specific numbers might guide the court’s analysis. At bottom, a claim for equitable contribution calls upon the power of the court to design a remedy that is fair. Fairness cannot be fashioned from speculation.
Because Chubb failed to prove by a preponderance of the evidence that it discharged debt for the benefit of Resources, the District Court did not abuse its discretion in finding that Chubb failed to satisfy the second element of its claim for equitable contribution.
IV.
For the foregoing reasons, we will affirm the order of the District Court.
. We note that the District Court was persuaded, as are we, by the California appellate court's opinion in Crusader v. USF&G Insurance Co., 2007 WL 1140417 (Cal.Ct.App. Apr. 18, 2007), addressing a similar situation. In Cmsader, two insurers contributed unequally to a lump settlement of lawsuits against their mutual insured. In the subsequent equitable contribution suit, the court held that the plaintiff had failed to produce evidence of how the settlements were apportioned and that the court was therefore unable to fashion an equitable remedy between the parties. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478882/ | OPINION
PER CURIAM.
Petitioner Karen Urquia-Rodriguez, a citizen of Honduras, seeks review of a final *257order of removal entered by the Board of Immigration Appeals, which denied her applications for asylum, withholding of removal, and relief under the Convention Against Torture. The petition for review will be denied.
I.
Urquia-Rodriguez entered the United States without inspection in 1998 and was issued a Notice to Appear (“NTA”) by the Department of Homeland Security (“DHS”).1 At a hearing before an Immigration Judge (“IJ”), Urquia-Rodriguez conceded removability, but sought asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).
At her removal hearing, Urquia-Rodri-guez testified that, in 1998, she was attacked and raped in Honduras by a group of six well-known gang-members. (A.R. 183, 219.) She testified that these individuals threatened her that if she informed the police, they would kill her and her family. (Id.) Out of fear, Urquia-Rodri-guez did not go to the police or seek medical attention, but was treated at home with natural medicines by her mother. (A.R.150.) In addition to this incident, Urq-uia-Rodriguez testified that several of her family members have been murdered. Her father was killed before she was born when he intervened in a dispute on behalf of his brother. (A.R.219.) In 2001, her mother-in-law was murdered. (A.R.219.) Her brother-in-law was murdered in 2002, and in 2007, her sister and her niece were shot when they were attacked by local gang members. (Id.) Urquia-Rodriguez also testified that her uncle was murdered, but she did not know the identity of the killer or why he was killed. (A.R.134.) Urquia-Rodriguez testified that she is afraid that she will be raped or killed if returned to Honduras. (A.R.136, 220.)
The IJ determined that Urquia-Rodri-guez was statutorily ineligible for asylum because her application was not filed within one year of entering the United States, see 8 U.S.C. § 1158(a)(2)(B), and that even if the application had been timely, she failed to establish that she suffered past persecution or that she would suffer future persecution on account of a protected ground. (A.R.89.) The IJ denied Urquia-Rodriguez’s request for withholding of removal because she failed to form a “nexus” between the harm she suffered and a statutorily protected basis. (A.R.34.)
With respect to her CAT claim, the IJ found Urquia-Rodriguez’s testimony to be credible, and acknowledged that rape and murder would be considered a form of torture under the CAT, but denied the claim because she failed to demonstrate that she or her family was being specifically targeted or that the government had any involvement in the crimes. (A.R.95-97.) The IJ acknowledged that violence and crime is pervasive throughout Honduras, but held that the government’s inability to control crime was not the same as its acquiescence, and that the Honduran government was not willfully blind to the activities of criminals. (A.R.96.) The IJ also considered whether Urquia-Rodriguez had the possibility of relocating if returned to Honduras, and found that she did, as there were no restrictions on movement within the country. (A.R.94, 97.)
Urquia-Rodriguez appealed the denial of her claim under the CAT to the Board of Immigration Appeals (“BIA”). The BIA affirmed the IJ’s determination, holding that Urquia-Rodriguez failed to *258demonstrate a specific intent by the government to torture her. (A.R.3.) On March 20, 2009, Urquia-Rodriguez filed a timely petition for review with this Court. Urquia-Rodriguez’s brief argues that in assessing her CAT claim the BIA (1) incorrectly required a showing of “specific intent” contrary to our holding in Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir.2003), and (2) interpreted the requirement that the acts of torture involve “government acquiescence” in a manner inconsistent with our holding in Silvar-Rengifo v. Att’y Gen., 473 F.3d 58 (3d Cir.2007). Urquia-Rodriguez’s petition for review does not challenge the denial of her claims for asylum or withholding of removal.
II.
We have jurisdiction to review final orders of removal pursuant to 8 U.S.C. § 1252(a)(1). Because Urquia-Rodriguez was ordered removed, in part, based on her commission of a crime involving moral turpitude, we have jurisdiction to review her petition only to the extent that it raises a constitutional or legal issue. See 8 U.S.C. §§ 1252(a)(2)(C) & (D); c.f. Ilchuk v. Att’y Gen., 434 F.3d 618, 621 (3d Cir. 2006). Whether the BIA properly interpreted and applied the terms “specific intent” and “government acquiescence” is a question of law over which we have jurisdiction. See Toussaint v. Att’y Gen., 455 F.3d 409, 412 n. 3 (3d Cir.2006).
Because the BIA adopted some of the findings of the IJ and made additional findings, we will review the decisions of both the BIA and the IJ. Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 339 (3d Cir.2008). We review the BIA’s legal conclusions de novo, subject to established principles of deference, Chevron v. Natural Res. Def. Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), but defer to the BIA’s factual findings unless “any reasonable adjudicator would be compelled to conclude to the contrary,” Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir.2004) (quoting 8 U.S.C. § 1252(b)(4)(B)).
The applicant for relief under the CAT bears the burden of proving that it is more likely than not that she would be tortured if removed to the proposed country of removal. 8 C.F.R. § 208.16(c)(2); see also Kamara v. Att’y Gen., 420 F.3d 202, 212-13 (3d Cir.2005). For an act to constitute torture under the CAT, it must be: (1) an act causing severe physical or mental pain or suffering; (2) intentionally inflicted; (3) for a proscribed purpose; (4) by or at the instigation of or with the consent or acquiescence of a public official who has custody or control of the victim; and (5) not arising from lawful sanctions. Id. at 213; see also 8 C.F.R. § 208.18(a)(1). The requirement that the torture be intentionally inflicted requires a showing that the “prospective torturer will have the goal or purpose of inflicting severe pain or suffering” on the petitioner. Pierre v. Att’y Gen., 528 F.3d 180, 190 (3d Cir.2008) (en banc). The “acquiescence of a public official” requirement does not require actual knowledge of torturous conduct, but can be satisfied by a showing that the government is willfully blind to the conduct in question or has breached its legal responsibility to prevent it. Gomez-Zuluaga, 527 F.3d at 350; Silva-Rengifo, 473 F.3d at 70.
III.
The BIA denied Urquia-Rodriguez’s CAT claim, in part, because she failed to demonstrate that any of the crimes committed against her or her family were made with an intent to torture her. (A.R.3.) Urquia-Rodriguez first argues that the Board erred as a matter of law by requiring a showing of a “specific intent” to torture her, as contrary to our holding in Zubeda v. Ashcroft. In Zubeda, we *259stated that deferral of removal under the CAT does not require a specific intent to inflict torture. 333 F.3d at 473. We have since held, however, that a showing of “specific intent” to cause severe pain and suffering is required to establish torture, and rejected as dicta any statements in Zubeda to the contrary. See Auguste v. Ridge, 395 F.3d 123, 148 (3d Cir.2005); see also Toussaint, 455 F.3d at 416. If there is no evidence that the “prospective torturer will have the goal or purpose of inflicting severe pain or suffering,” the specific intent requirement of CAT is not fulfilled. Pierre, 528 F.3d at 190. This showing is required even when the conditions in the country of removal are such that removal is likely to result in harm to the petitioner. Id. at 191 (denying CAT relief where petitioner was likely to experience pain and suffering due to poor conditions in Haitian prisons, but failed to show that Haitian officials had the specific intent to inflict severe pain or suffering by placing him in detention upon removal).
Urquia-Rodriguez testified that she and her family were the victims of several criminal acts that she claimed would continue upon her return. Other than a generally high rate of violent crime, however, the IJ found no evidence of any connection between the death of her father, the shooting of her sister and niece, and the death of her uncle. The IJ concluded from this that Urquia-Rodriguez had been the victim of a random criminal act and was not singled out for the specific purpose of being tortured. (A.R.93, 95.) Although the record establishes that crime is rampant in Honduras and there is a reasonable fear of reprisal (A.R.136, 220), the BIA correctly concluded that Urquia-Rodriguez failed to show that the alleged torturers have the specific goal of inflicting severe pain or suffering upon her.
Urquia-Rodriguez also contends that the BIA interpreted the term “government acquiescence” in a manner contrary to our decision in Silva-Rengifo. (A.R.3.) Because we find that Urquia-Rodriguez failed to demonstrate specific intent, a required showing in order to obtain relief under the CAT, we need not reach this argument.2 See Pierre, 528 F.3d at 189. The record supports the conclusion that Urquia-Rodriguez did not meet her burden of establishing that it is more likely than not that she will be tortured if returned to Honduras.
IV.
For the foregoing reasons, the petition for review will be denied.
. Urquia-Rodriguez was charged with remov-ability for entering the country without inspection, pursuant to 8 U.S.C. § 1182(a)(6)(A)(i), and for having been convicted of a crime involving moral turpitude.
. In any event, we would find that Urquia-Rodriguez has not met her burden of demonstrating that the Honduran government is "willfully blind” to the torture of its citizens by third parties. Silva-Rengifo, 473 F.3d at 65. While the State Department report Urq-uia-Rodriguez relies on indeed shows that government corruption, police brutality, and gang violence is widespread in Honduras, nothing in the report suggests that Urquia-Rodriguez would be singled out as a victim, or that the government would acquiesce in her victimization. See Zubeda, 333 F.3d at 478 (staling that reports of generalized brutality within a country do not, in the absence of additional evidence, allow an alien to sustain his or her burden under the CAT). As unfortunate as the situation is in Honduras for victims of crime, the BIA correctly concluded that Urquia-Rodriguez failed to make the appropriate showing that government officials knew of — let alone acquiesced to — the crime and violence suffered by her and her family. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478884/ | OPINION OF THE COURT
PER CURIAM.
Appellant Jihad Rashid, a federal prisoner incarcerated at the Federal Correctional Institution, McKean, in Bradford, Pennsylvania, committed four bank robberies in the State of Michigan. On May 25, 1999, he was arrested and taken into state custody and charged with three of the four bank robberies. A criminal complaint then was filed against him in United *261States District Court for the Eastern District of Michigan, charging Rashid with the fourth bank robbery in violation of 18 U.S.C. § 2118(a). The United States Attorney filed a petition for writ of habeas corpus ad prosequendum, seeking temporary custody of Rashid, and through which federal authorities obtained temporary custody of him. Once in temporary federal custody, Rashid pleaded guilty to the federal bank robbery count. On October 23, 2000, he was sentenced in federal district court to a term of imprisonment of 151 months. That term was later reduced to 139 months. The federal judge’s sentencing order was silent as to whether the sentence was to run concurrent with any other sentence.
Rashid was returned to state court, where he pleaded guilty to the remaining three armed robbery charges. He was sentenced in state court on November 14, 2000 to three concurrent terms of 5-20 years, and the state court directed that the state sentences were to run concurrent with the federal sentence. The state court awarded prior custody credit against the state sentence in the amount of 538 days for the time from the date of Rashid’s arrest, May 25, 1999, until November 13, 2000, the day before he was sentenced in state court. Rashid was transported to Michigan State Prison to begin serving his state sentence.
Rashid then filed a motion in state court to set aside his state sentences on the ground that the manner in which he was serving his state and federal sentences was not proper. The state court granted the motion and vacated the state sentences, and Rashid was released from state custody to the custody of the United States Marshals Service, pursuant to a federal detainer, on March 7, 2001. The Bureau of Prisons designated Rashid to a federal correctional institution in South Carolina and later designated him to FCI-McKean. On February 14, 2002, the state court re-sentenced Rashid to the same three concurrent 5-20 year sentences for the state armed robbery convictions. The state court directed that Rashid receive 995 days prior custody credit against his state sentences, and that the state terms run concurrently with his federal sentence. The 995 days of prior custody credit was for the time served between the date of Rashid’s arrest, May 25, 1999, and February 13, 2002, the day before he was re-sentenced in state court.
Once incarcerated at FCI-McKean, the BOP calculated that Rashid’s full federal term would expire on May 22, 2012. His projected release date, which takes into account good time credit, was calculated to be November 24, 2010. The BOP effected concurrency of the federal sentence and state sentence to the extent possible through a nunc pro tunc designation pursuant to our decision in Barden v. Keohane, 921 F.2d 476 (3d Cir.1990). Because of this designation, Rashid’s federal sentence began to run on the date it was imposed, October 23, 2000, even though he was still in the custody of the Michigan Department of Corrections on that date. The BOP also determined that Rashid was not entitled to any credit against his federal sentence for the time he spent in state custody from the date of his arrest, May 25, 1999, through October 22, 2000, the day before he was sentenced in federal court, see United States v. Wilson, 503 U.S. 329, 337, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) (18 U.S.C. § 3585(b) prohibits double credit).
After exhausting his administrative remedies, Rashid filed a pro se habeas corpus action pursuant to 28 U.S.C. § 2241 in United States District Court for the Western District of Pennsylvania, alleging that the BOP improperly denied him credit
*262against his federal sentence. He contended that he should be credited for time served in official detention pursuant to a state sentence that was vacated. Following consent by the parties to the jurisdiction of a magistrate judge, 28 U.S.C. § 636(c)(1), and the submission of a response by the Warden of FCI-McKean, the Magistrate Judge denied the habeas corpus petition.
Rashid appeals. The Warden filed a motion for summary affirmance and Rash-id filed a motion to proceed in forma pauperis. Our Clerk granted him leave to appeal in forma pauperis and advised him that his appeal was subject to summary dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. Rashid submitted a response in opposition to summary action, which we have considered.
We will summarily affirm the order of the District Court because no substantial question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. We have jurisdiction under 28 U.S.C. § 1291. The issues raised by the appeal are legal in nature, and we thus exercise plenary review. Barden, 921 F.2d at 479. The authority to calculate a federal prisoner’s period of incarceration for the federal sentence imposed and to provide credit for time served is delegated to the Attorney General, who acts through the BOP. Wilson, 503 U.S. at 334-35, 112 S.Ct. 1351. We may correct an error by the BOP through a writ of habeas corpus where that error is fundamental and carries a serious potential for a miscarriage of justice. Barden, 921 F.2d at 479. We have carefully reviewed the record and agree with the Magistrate Judge that Rashid is not entitled to the credit he seeks.
Section 3621(b) of Title 18 authorizes the BOP to designate the place of confinement for purposes of serving federal sentences of imprisonment. See Barden, 921 F.2d 476. The BOP, through a nunc pro tunc designation, saw to it that Rashid would begin receiving credit towards the service of his federal sentence while still in state custody. By designating the Michigan Department of Corrections as the place for Rashid’s federal sentence to be served initially, the BOP gave effect to the state judge’s decision, to the extent it could, that Rashid should serve his state sentences and federal sentence concurrently.1
Moreover, Rashid’s federal sentence was properly calculated as commencing on the date it was imposed. A federal sentence commences when the defendant is received by the Attorney General for service of his federal sentence. See 18 U.S.C. § 3585(a). See also United States v. Pungitore, 910 F.2d 1084, 1118-19 (3d Cir.1990). As a result, a federal sentence cannot begin to run earlier than on the date on which it is imposed. See United States v. Labeille-Soto, 163 F.3d 93, 98 (2d Cir.1998). The BOP could not commence Rashid’s federal sentence prior to October 23, 2000.
Finally, Rashid is not entitled to any credit against his federal sentence for the time spent in official detention prior to October 23, 2000, because 18 U.S.C. § 3585(b) prohibits this double credit. United States v. Wilson, 503 U.S. 329, 337, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). See also Vega v. United States, 493 F.3d *263310, 314 (3d Cir.2007). As explained by the Magistrate Judge, that time was credited to his state sentence.
In a traverse, Rashid contended that he was entitled to additional prior custody credit pursuant to Kayfez v. Gasele, 993 F.2d 1288 (7th Cir.1993). See Traverse, at ¶ 5 (citing to 993 F.2d 1288 but incorrectly referring to the case as “Kaye ”). This contention prompted the BOP to conduct a review of Rashid’s sentence. See Hazelton Declaration, at ¶ 3. Pursuant to Kayfez, the BOP will grant an amount of qualified double credit if the following conditions are present: (1) the non-federal and federal sentences are concurrent; (2) the raw effective full term (“EFT”) date of the non-federal term is later than the raw EFT of the federal term; and (3) the non-federal raw EFT, after application of qualified non-federal presentence time, is reduced to a date that is earlier than the federal raw EFT date. See BOP Program Statement 5880.28; Hazelton Declaration, at ¶ 6. The raw EFT is determined by adding the length of the sentence imposed to the commencement date of the sentence. See Hazelton Declaration, at ¶ 7. Qualified non-federal presentence time is the number of days between the date of the non-federal arrest and the commencement date of the first sentence, whether federal or non-federal. See Hazelton Declaration, at ¶ 8.
Hazelton determined, on behalf of the BOP, that Rashid did not qualify for the Kayfez credit because he met only the first two requirements for the credit — that his state and federal sentences are concurrent and that his state raw EFT is later than his federal raw EFT. Rashid could not satisfy the third requirement, because his state EFT date, after application of qualified non-federal presentence time, was later than his federal raw EFT date. Hazel-ton explained:
In inmate Rashid’s case, I determined his federal raw EFT date as May 22, 2012 (139 months after October 23, 2000), and I determined his non-federal raw EFT date to be February 13, 2022 (twenty years after February 14, 2002). Also, from his records, I determined the date of his non-federal arrest was May 25, 1999. The date his first sentence commenced was October 23, 2000. The number of days between May 25, 1999 and October 22, 2000 (the day before the commencement of the first sentence), is 517 days. Thus, his non-federal raw EFT date (February 13, 2022), adjusted by qualified presentence time (517 days), resulted in an adjusted non-federal date of September 14, 2020. His federal raw EFT date is May 22, 2012 (139 months after October 23, 2000). Therefore, because his adjusted nonfederal EFT date (September 14, 2020), is later than his federal raw EFT date (May 22, 2012), he is not entitled to qualified presentence credit under Kayfez.
See Hazelton Declaration, at ¶ 9.
It is true that, as of March 7, 2001, when the U.S. Marshal Service took custody of Rashid, there was no longer (at least for the time being) a state sentence which credited prior official detention, but Rash-id did not challenge the validity of P.S. 5880.28, and we discern no error in the Hazelton computation that is fundamental and carries a serious potential for a miscarriage of justice, Barden, 921 F.2d at 479. As it now stands, Rashid has a prior custody credit of 995 days against his state sentences, which otherwise would not expire until February 13, 2022. Because he will be released from federal custody no later than May 22, 2012, he will receive the full benefit of this almost 2% year credit.2
*264For the foregoing reasons, we will summarily affirm the order of the District Court denying Rashid’s habeas corpus petition.
. Rashid remained in the custody of the State of Michigan from May 25, 1999, the date of his arrest, until he was released on March 7, 2001 into the custody of the U.S. Marshal Service. See generally Rios v. Wiley, 201 F.3d 257, 274 (3d Cir.2000) (prisoner not entitled to credit against federal sentence for time spent in federal detention pursuant to writ of habeas corpus ad prosequendum "unless and until the first sovereign relinquishes jurisdiction over the prisoner”).
. In his summary action response, Rashid contends that the state judge issued an order *264on August 8, 2009, concerning prior custody credit. We note the order indicates that Rashid’s new "Motion for Jail Credit" was denied. See Docket Entry No. 22. Rashid's suggestion that the BOP failed to follow the order of the state sentencing court lacles merit because the BOP is not authorized to compute state sentences. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478888/ | OPINION
PER CURIAM.
Noel Bango, a federal prisoner proceeding pro se, filed a petition for a writ of mandamus. For thé reasons stated below, we will deny the petition.
Bango seeks to have Chief Judge Sleet, who presided over Bango’s criminal matter, disqualified from presiding over any present or future civil or criminal proceedings involving him. Bango alleges that Chief Judge Sleet exhibited prejudice, bias, and partiality against him when he remanded Bango into custody and terminated his out-patient treatment. Bango believes that Chief Judge Sleet issued these rulings because Bango filed ineffective assistance of counsel motions against his court-appointed attorneys. Bango also alleges that, because he filed grievances against the prisons where he was housed and threatened to sue for “medical neglect, physical abuse, and [lockdown],” Chief Judge Sleet retaliated against him and sentenced him to 21 months’ incarceration.1
The writ of mandamus is an extreme remedy that is granted only when there is no other remedy available to the petitioner and the petitioner’s right to mandamus relief is clear and indisputable. Kerr v. United States Dist. Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); In re Pasquariello, 16 F.3d 525, 529 (3d Cir.1994). Mandamus may not be used as a substitute for the regular appeals process. See In re Briscoe, 448 F.3d 201, 212 (3d Cir.2006).
Litigants seeking to disqualify a judge may file a motion pursuant to 28 U.S.C. § 455 or 28 U.S.C. § 144.2 However, claims of actual judicial bias pursuant to § 144 are not appropriate for mandamus. Green v. Murphy, 259 F.2d 591, 594 (3d Cir.1958) (en banc). Claims under 28 U.S.C. § 455(a) may be brought via mandamus. See Alexander v. Primerica Holdings, 10 F.3d 155, 163 (3d Cir.1993). “[J]udicial rulings alone almost never constitute a valid basis for a bias or impartiality motion.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).
To the extent that Bango’s claim falls under § 455, he has not shown that he is entitled to relief. Bango’s petition rests on his disagreement with Chief Judge Sleet’s rulings, and without more, he cannot show bias or impartiality. Moreover, nothing in the Bango’s filing indicates that the Chief Judge is biased against him. Accordingly, mandamus relief is not appropriate. In addition, we will deny Bango’s requests to (1) file his motion pursuant to 28 U.S.C. § 2255 in another federal district; (2) compel the District Court to rein*274state his out-patient treatment; and (3) issue any further declaratory relief.
. Bango's appeal from his conviction and sentence is currently pending before this Court. (C.A. No. 09-3863).
. Based on our review of the District Court's docket, it does not appear that Bango filed a motion seeking to disqualify Chief Judge Sleet pursuant to 28 U.S.C. § 455 or 28 U.S.C. § 144. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478890/ | *281
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Michelle Hetzel appeals the order of the District Court denying her petition for a writ of habeas corpus. Because we write only for the benefit of the parties, we assume familiarity with the facts of this case and its procedural history. We will affirm.
I.
On June 15, 2000, the body of nineteen-year-old Devon Guzman was found in her car in Northampton County, Pennsylvania. She died as a result of a four-inch cut in her throat. Immediately after Guzman’s body was found, the local newspapers, The Express-Times and The Morning Call, began publishing articles about her death. On July 29, 2000, The Express-Times reported that Brandon Bloss, Hetzel’s husband at the time, was a suspect in Guzman’s murder. After Hetzel and Bloss were charged in August of 2000 with first degree murder in connection with Guzman’s death, the articles began to focus on the criminal investigation, the legal proceedings, and the connections among Het-zel, Bloss, and Guzman. The newspapers reported that Guzman was involved in two lesbian relationships: one with Keary Ren-ner, with whom she lived, and another with Hetzel. Thus they began referring to the case as involving a “lesbian love triangle.” The record reflects that between the day Guzman’s body was discovered on June 15, 2000, and the day Hetzel and Bloss’s jury was chosen on September 24, 2001, the newspapers published approximately seventy-two articles about the case.
Hetzel and Bloss were charged with first degree murder and conspiracy to commit murder in the Court of Common Pleas of Northampton County, Pennsylvania. Before the trial and during voir dire, Hetzel moved for a change of venue, arguing that a fair and impartial jury could not be selected in Northampton County. The trial court denied those motions. Jury selection for the trial began on September 11, 2001, but the Court declared a mistrial after the terrorist attacks of that day. Shortly thereafter, a second trial commenced. Hetzel and Bloss were tried jointly, and the jury convicted them on the first degree murder charge and acquitted them of the conspiracy to commit murder charge. They were both sentenced to life imprisonment.
Hetzel appealed her conviction and sentence to the Pennsylvania Superior Court, including among her arguments the claim that the Court of Common Pleas erred by denying her motions for a change of venue. The Superior Court addressed the change of venue claim on the merits and affirmed. The Pennsylvania Supreme Court declined to hear an appeal of the Superior Court decision. After the Pennsylvania Superior Court denied Hetzel’s petition for relief under the Post Conviction Relief Act and the Pennsylvania Supreme Court denied her petition for an appeal of that decision, Hetzel filed a timely petition for a writ of habeas corpus in the United States District Court for Eastern District of Pennsylvania.
The petition included four claims for relief, including Hetzel’s claim that the state trial court’s denials of her motions for a change of venue violated her due process rights under the Fifth and Fourteenth Amendments. The Magistrate Judge filed a Report and Recommendation, recommending that the petition be denied without an evidentiary hearing and that the District Court decline to issue a certificate of appealability on any of her claims. The District Court adopted the Report and Recommendation in part and denied the petition without an evidentiary *282hearing but issued a certificate of appeala-bility on the change of venue claim. Het-zel filed a timely appeal.
II.
The issue presented in this appeal was adjudicated on the merits by the Superior Court of Pennsylvania. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2241, et seq., we must affirm the denial of the writ of habe-as corpus unless the state adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); Vazquez v. Wilson, 550 F.3d 270, 276 (3d Cir.2008). Because Hetzel does not argue that the standard used by the Superior Court was “contrary to” clearly established federal law, we focus only on whether the decision “involved an unreasonable application of[ ] clearly established Federal law.” 28 U.S.C. § 2254(d)(1). The Supreme Court has recognized that “unreasonable” is “difficult to define,” but has held that an “unreasonable application of federal law is different from an incorrect or erroneous application of federal law.” Williams v. Taylor, 529 U.S. 362, 410-12, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (emphases in original). Instead, we look to whether the “state court’s application of clearly established law is objectively unreasonable.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). In making this determination, we presume that the state court’s factual findings are correct. 28 U.S.C. § 2254(e)(1). An applicant may rebut that presumption by clear and convincing evidence. Id.
In determining whether § 2254(d) prohibits granting the writ, the Court first must determine the applicable “clearly established Federal law, as determined by the Supreme Court of the United States.” See Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (quoting § 2254(d)(1)). “Clearly established Federal law” is the “governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Id. We then determine whether the state court’s application of this clearly established law to the facts of this case was unreasonable.
III.
“[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). “[Jjurors need not, however, be totally ignorant of the facts and issues involved.” Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). In cases involving intense pretrial publicity, the Supreme Court has held that a change of venue is constitutionally required in certain cases because “adverse pretrial publicity can create such a presumption of prejudice in a community that the jurors’ claims that they can be impartial should not be believed.” Patton v. Yount, 467 U.S. 1025, 1031, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984); see Irvin, 366 U.S. at 722-23, 81 S.Ct. 1639. Yet, we will presume prejudice only in the rare case where the “media or other community reaction to a crime or a defendant engenders an atmosphere so hostile and pervasive as to preclude a rational trial process.” Rock v. Zimmerman, 959 F.2d 1237, 1252 (3d Cir.1992) (en banc), abrogated on other grounds by Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); see also Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). Supreme Court prec*283edent instructs that, when evaluating whether the pretrial publicity violated the defendant’s right to an impartial jury, we are to consider the content, quantity, and timing of the publicity. See Murphy, 421 U.S. at 798-803, 95 S.Ct. 2031; Rideau v. Louisiana, 373 U.S. 723, 724-26, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Irvin, 366 U.S. at 724-28, 81 S.Ct. 1639. We may also look to the record of voir dire to examine the effect of the publicity on the venire. See, e.g., Patton, 467 U.S. at 1033-35, 104 S.Ct. 2885; Irvin, 366 U.S. at 726-27, 81 S.Ct. 1639; Flamer v. Delaware, 68 F.3d 736, 754-55 (3d Cir.1995).
In denying Hetzel’s change of venue claim, the Pennsylvania Superior Court applied the following standard:
Pre-trial publicity will be presumed to have been prejudicial if the defendant is able to prove that the publicity was sensational, inflammatory, and slanted toward conviction, rather than factual and objective; that such publicity revealed the defendant’s prior criminal record, if any, or referred to confessions, admissions, or reenactments of the crime by the defendant; or that it was derived from official police and prosecutorial reports. Even if the defendant proves the existence of one or more of these circumstances, a change of venue or venire is not warranted unless he or she also shows that the pre-trial publicity was so extensive, sustained, and pervasive that the community must be deemed to have been saturated with it, and that there was insufficient time between the publicity and the trial for any prejudice to have dissipated.
Commonwealth v. Hetzel, 822 A.2d 747, 764 (Pa.Super.Ct.2003) (quoting Commonwealth v. Karenbauer, 552 Pa. 420, 715 A.2d 1086, 1092 (1998)). This standard is consistent with clearly established federal law, and Hetzel does not argue otherwise.
Next, we must determine “whether the state court’s application of clearly established law [was] objectively unreasonable.” Bell, 535 U.S. at 694, 122 S.Ct. 1843. We ask whether “the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under” relevant Supreme Court precedent. Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir.2000).
After setting forth the standard for a motion for a change of venue under Pennsylvania law, the Superior Court evaluated Hetzel’s claim as follows:
As a result of counsel’s request for a change of venue, the trial judge reviewed the media accounts of the case and considered Hetzel’s claim of prejudice. The court denied the motion because it concluded that the published reports, though voluminous, were not “sensational, inflammatory nor slanted toward conviction, but [were] factual and objectively reported.” Nonetheless, the court indicated that it would revisit the issue if it became “evident during jury voir dire that the ability ... to empanel a fair and impartial jury has been compromised by the pretrial publicity.”
Thereafter, jury selection in the case was thorough and careful. The court dismissed for cause all jurors who hinted at having a fixed opinion in the case or who believed they were unable to be fair or impartial. While the majority of the jurors chosen to serve had some knowledge of the case through the media, none reported that the exposure prompted a fixed opinion and all stated that they would decide the matter consistent with the court’s instructions and based on the evidence presented at trial.
In light of the conscientious and methodical manner in which the court presided over jury selection in this case, as well as our limited scope of review, we *284cannot find that there was an abuse of discretion in refusing to grant the change of venue. The record simply does not reveal an extensive, sustained, or pervasive effect from the media coverage in this case.
Hetzel, 822 A.2d at 764-65 (citations omitted).
We find no error in this analysis. A review of the newspaper articles in the record establish that they are, as the trial court found, largely “factual and objectively reported.” Id. at 764 (quoting the trial court’s opinion). The articles focus on Guzman’s death, the police investigation, the arrest of Hetzel and Bloss, and the court proceedings before the trial. Many of the articles do refer to the “lesbian love triangle,” but these articles do not report that Hetzel confessed to the crime or call for Hetzel’s conviction. Nor was there any coverage of any past criminal acts or misdeeds by Hetzel, other than her adulterous affair. Although Hetzel claims that the newspapers published letters to the editor calling for her conviction and the death penalty, only two of the letters to the editor in the record — penned by the same woman — call for conviction and the death penalty. Additionally, in one of the letters, the writer identifies Guzman as her niece. Therefore, Hetzel has not rebutted the presumption that the trial court correctly found that the articles were primarily factual in nature and “no[t] slanted toward conviction.” Id. (refusing to disturb the trial court’s findings).
Although Hetzel compares her case to Rideau, the content of the newspaper coverage here is distinct from the publicity there. Rideau involved the dissemination of a film showing Rideau confessing to the crime with which he was charged. 373 U.S. at 724-27, 83 S.Ct. 1417. Obviously, watching the defendant confess to a crime is likely to have the effect of persuading community members that the defendant is, in fact, guilty of committing the crime. Here, the articles were much less likely to have the effect of convincing potential jurors of Hetzel’s guilt than the film of a confession at issue in Rideau. The content of the coverage is also distinguishable from that in Irvin, in which the press repeatedly reported that Irvin had confessed to the crime, reported on his prior criminal convictions, and claimed he had offered to plead guilty to the crime he was charged with committing. 366 U.S. at 725-726, 81 S.Ct. 1639.
Additionally, there was a significant passage of time between the height of the media coverage in the summer of 2000 and the trial in September 2001. “That time soothes and erases is a perfectly natural phenomenon, familiar to all.” Patton, 467 U.S. at 1034, 104 S.Ct. 2885; see Murphy, 421 U.S. at 802, 95 S.Ct. 2031. In Patton, the Supreme Court explained that, although potential jurors may remember the crime, “[i]t is not unusual that one’s recollection of the fact that a notorious crime was committed lingers long after the feelings of revulsion that create prejudice have passed.” 467 U.S. at 1035, 104 S.Ct. 2885. Here, the intensity of the coverage diminished between the discovery of Guzman’s body and the trial. On appeal, Hetzel claims that seventy-two articles appeared in the local newspapers before her trial but informs us that twenty-four of these articles were published after January 1, 2001. Thus, the jurors were at most exposed to approximately three articles a month for the nine months preceding the trial. The passage of time and the sporadic nature of the coverage in the months proceeding the trial suggest that any prejudice that may have been presumed around the time of Guzman’s death and Hetzel’s arrest may have dissipated by the next year.
*285The record of voir dire also suggests that the publicity surrounding the case did not deprive Hetzel of her right to an impartial jury. During voir dire, slightly more than two-thirds of the seventy-five-person venire admitted that they had heard, seen, or read news coverage of the case. Yet, only two of these jurors stated that they had a fixed opinion about the guilt of the defendants, and both were stricken for cause. Five other jurors answered that they could not give the defendants or the Commonwealth a fair and impartial trial. The percentage of jurors who stated that they had a fixed opinion about the guilt of the defendants here (approximately 3%) is much lower than that in Murphy (26%) and Patton (77%), cases in which the Supreme Court rejected claims of prejudice. See Murphy, 421 U.S. at 803, 95 S.Ct. 2031; Patton, 467 U.S. at 1029, 104 S.Ct. 2885. Thus, the pretrial publicity did not have the effect of convincing the community of Hetzel’s guilt.
Finally, Hetzel argues that the publicity focused on the lesbian relationships “in- and-of themselves created a hostile environment which precluded a rational trial process.” Appellant’s Br. at 28. However, Hetzel offers only speculation, and no evidence, to support the theory that knowledge of the lesbian relationship affected the impartiality of the jurors. She also recognizes that any jury, regardless of the venue, would have heard about her lesbian relationship with Guzman during the trial. Furthermore, Hetzel’s attorney asked the venire whether they could remain impartial and judge Hetzel fairly even though she was bisexual. No one responded that they could not. There is simply no reason to presume prejudice on this record.
Hetzel has not established that the Superior Court’s decision that the media coverage was not so “extensive, sustained, or pervasive,” Hetzel, 822 A.2d at 764, so as to require a change of venue for her trial was an objectively unreasonable application of federal law. Therefore, we must affirm the District Court’s order denying the writ of habeas corpus.
IV.
For these reasons, the judgment of the District Court will be affirmed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478892/ | OPINION OF THE COURT
RODRIGUEZ, Senior District Judge.
This is an appeal from an Order granting a motion to transfer the action pursuant to 28 U.S.C. § 1404(a) to the United States District Court for the Central District of California. In doing so, the District Court expressly overrode a forum selection clause contained in a contract between the parties, invoking Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988), to conclude the forum selection clause was relevant but not determinative to the forum non conveniens analysis. Appellant argues that the District Court erred in failing to enforce the forum selection clause and in transferring the case.
I.
Appellant Single Employer Welfare Benefit Plan Trust by Penn-Mont Benefit Services, Inc., Plan Administrator (“Trust”) filed the Complaint seeking declaratory relief against Datalink Electronics, Inc., Yossi Lev, Anna Lev, David R. Neste, General American Life Insurance Company, Simon Singer, and Jeffrey L. Davidson, regarding distribution of certain life insurance policies sought by the Defendants which the Trust contends was neither provided for by the Plan documents nor legal. The Complaint also sought breach of contract damages under ERISA, 29 U.S.C. §§ 1103, 1132, and 1144, and the Internal Revenue Code, 26 U.S.C. § 419, and damages for State claims.
The Complaint also alleges that the Trust is a multiple employer welfare benefit plan trust administered in Pennsylvania to fund death benefits to employers throughout the United States. Datalink is one of those employers, co-owned by employees Yossi and Anna Lev; all three are citizens of California. Neste and Singer are California insurance agents who received commissions from the sale of Pennsylvania life insurance policies purchased by the Trust to insure participating Datal-ink employees. General American issued the Lev life insurance policies purchased by the Trust. Davidson is a California attorney who represented Singer.
The Trust contends that it purchases life insurance policies on the lives of participating employees to reinsure the plan’s risks relating to payment of benefits and assure its solvency to pay benefits; the Trust is the named owner and beneficiary of death benefit proceeds from those policies. According to the Complaint, Datalink sought to terminate the Plan, drafting its own termination documents which were not accepted by the Plan Administrator. No distributions have been paid.
II.
The District Court had subject matter jurisdiction based upon both diversity of citizenship, 28 U.S.C. § 1332, and the pleading of a federal question, 28 U.S.C. § 1331. This Court has jurisdiction over *296appeals from all final decisions of the district courts pursuant to 28 U.S.C. § 1291. It is well-settled, however, that an order granting a motion to transfer venue under 28 U.S.C. § 1404(a) is interlocutory in character and not immediately appealable under section 1291. In re Federal-Mogul Global, Inc., 300 F.3d 368, 378 (3d Cir.2002) (citations omitted).
The original motion was styled as one to dismiss for lack of venue and jurisdiction or, in the alternative, to transfer the action to the Central District of California pursuant to 28 U.S.C. § 1406(a), which provides that where venue is laid in the wrong district, the district court “shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought,” or, in the alternative, pursuant to 28 U.S.C. § 1404(a), which provides that “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”
The District Court analyzed the case under 28 U.S.C. § 1404(a), and ordered the case transferred to the United States District Court for the Central District of California, thereby granting Defendants’ motion. “[Ojrders granting or denying motions to transfer under 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406(a) are not immediately appealable under 28 U.S.C. § 1291 as collaterally final orders. It is irrelevant for these purposes whether the motion to transfer is based on a forum selection clause, the convenience of witnesses, or other factors.” Nascone v. Spudnuts, Inc., 735 F.2d 763, 772-73 (3d Cir.1984). See also McCreary Tire & Rubber Co. v. CEAT S.p.A., 501 F.2d 1032 (3d Cir.1974) (“An order transferring an action pursuant to 28 U.S.C. § 1404(a) or refusing to make such a transfer is interlocutory and unappealable under § 1291.”).
Therefore, we dismiss this appeal because we do not have appellate jurisdiction over the Order issued by the District Court transferring venue in this case to the Central District of California. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478895/ | OPINION
PER CURIAM.
Petitioner Artur Chmielewski, a native and citizen of Poland and a gay man, entered the United States in March of 2003 without being admitted or paroled. He is removable under Immigration & Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). Chmielewski filed a timely application for asylum under INA § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18, claiming that he was persecuted in Poland on the basis of his sexual orientation. Chmielewski most recently was employed in Poland as a bartender. Both in his application and testimony, he asserted that he had many times been the victim of hate crimes; he described numerous attacks and beatings which he believed were motivated by anti-gay bias, and serious injuries he sustained as a result. He also submitted medical documentation and articles published by human rights groups describing attacks on gay men outside of gay bars and clubs in Poland. A November of 2006 Amnesty International Report on Poland, for example, noted that the Law and Justice Party (“PiS”) came to power in September of 2005, and, after that, homophobic statements by public officials increased dramatically. A.R. 406. Judicial authorities declined to prosecute on the ground that the homophobic statements were not “threatening or encouraging to crime.” Id.
The 2005 Country Report on Human Rights Practices in Poland noted that gay rights activists engaged in a peaceful demonstration were attacked reportedly by members of the All Poland Youth League, who threw eggs and rocks, and made verbal threats that were both homophobic and anti-Semitic. A.R. 448. Sixty-eight of the gay rights activists were arrested and interrogated before being released. The violent counter-demonstrators were only asked for identification. See id.
The government responded by submitting articles of its own, which discussed the successes of the gay rights movement in Poland since the fall of the communist government. One article noted Warsaw’s “lively gay tradition” dating back to the eighteenth century, A.R. 459, and a July of 2005 article from the Travel section of Gay Times, Great Britain’s well-known adult gay male magazine, gave Poland, a member of the European Union, 3]é “pink stars,” out of a possible 5, for being tolerant and even accepting, A.R. 466. See also A.R. 468-69 (explaining the “pink star” system and noting that the extra half-star indicates that there is a surprising level of tolerance and freedom despite the lack of positive legal protection).
Following a merits hearing on January 24, 2008, at which Chmielewski was represented by current counsel, Daniel Sansoni, Esquire, the Immigration Judge (“IJ”) denied relief. In a 39-page oral decision, the IJ concluded that there was a lack of credible evidence to support Chmielewski’s claim that the injuries he sustained were as a result of his sexual orientation. The IJ concluded that Chmielewski’s evidence did not support a nexus between his injuries and his sexual orientation, and his country evidence supported a conclusion that there was discrimination in Poland on *311the basis of sexual orientation but not persecution. The IJ also faulted Chmielewski for not providing letters from family and friends or more specific medical documentation in support of his application, which she concluded might have helped him credibly establish his claim.
Mr. Sansoni filed a Notice of Appeal, Form EOIR-26, with the Board of Immigration Appeals. In the space provided for listing the reasons for the appeal, he stated:
The Respondent was not given a just hearing since prejudicial documents were submitted to the Court. By information and belief, it is believed that the Office of Chief Counsel believed respondent’s asylum was frivolous. Respondent indicated that his application was never frivolous. The OCC offered no documentation suggesting frivolous application. However, they offered documentation stating the case was under investigation. Going to the merits of the case, the immigration judge improperly denied a grant of asylum despite the facts and law clearly in the benefit of the respondent.
A.R. 78.
After the question, “Do you intend to file a separate written brief or statement after filing this Notice of Appeal,” Sansoni marked ‘Tes.” A.R. 78. The following “WARNING” was listed under that question: “If you mark ‘Yes’ in item # 8, you will be expected to file a written brief or statement after you receive a briefing schedule from the Board. The Board may summarily dismiss your appeal if you do not file a brief or statement within the time set in the briefing schedule.” A.R. 78. The Board then issued a briefing schedule, which set a deadline for filing the separate written brief or statement. The briefing schedule notice again warned that, if it was indicated on Form EOIR-26 that a separate written brief or statement would be filed, it was “expected.” A.R. 72. Failure to file might result in summary dismissal pursuant to 8 C.F.R. § 1003.1(d)(2)(i)(E). See id.
Chmielewski retained someone new to file his brief. That individual, Reverend Robert Vitaglione, did not follow through. In its March 17, 2009 decision, the Board summarily dismissed Chmielewski’s appeal pursuant to 8 C.F.R. § 1003.1(d)(2)(i)(E), because he failed to file a separate written brief or statement after indicating on the Notice of Appeal that one would be filed. Chmielewski filed a timely pro se petition for review of this decision, resulting in the appeal docketed at C.A. No. 09-2087. He also retained Stephen S. Santo, Esquire, to file a motion for reconsideration with the Board. On April 20, 2009, Santo filed that motion, and in it he contended that the Board should not have summarily dismissed Chmielewski’s appeal. Citing Bhiski v. Ashcroft, 373 F.3d 363, 367-68 (3d Cir.2004), he contended, among other things, that a brief is optional rather than mandatory. A.R. 14. Moreover, Chmie-lewski’s case was not complex and his statement put the Board on notice of what was at issue in his case. See id. at 15-16. The government filed written opposition to the motion to reconsider.
In a decision dated June 24, 2009, the Board denied Chmielewski’s motion to reconsider as untimely because it was not filed within 30 days. Chmielewski’s original attorney, Mr. Sansoni, returned to the case and filed a timely petition for review of that decision, resulting in the appeal docketed at C.A. No. 09-3077. Our Clerk consolidated the petitions for review. We previously denied Chmielewski’s motion for a stay of removal and the government’s motion for summary affirmance in C.A. No. 09-3077.
*312We will deny the consolidated petitions for review. We have jurisdiction to review both final orders of removal under 8 U.S.C. § 1252(a)(1), (b)(1). Chmielewski raises three contentions on appeal: (1) the IJ’s adverse credibility determination is not supported by substantial evidence, where the IJ was consistently misled by the government concerning an unrelated pending government investigation into frivolous asylum applications, and where the IJ incorrectly weighed his testimony and incorrectly determined that Poland does not persecute homosexuals; (2) the Board improperly summarily dismissed his appeal for failure to file a brief; and (3) the Board abused its discretion in denying his motion for reconsideration. Chmielew-ski asserts the failure to file a separate written brief or statement was not his fault, and the motion for reconsideration should not have been denied as untimely because the government did not raise the timeliness issue. See Petitioner’s Brief, at 9-10. Chmielewski seeks reinstatement of his appeal to the Board, or, in the alternative, he asks that we review his claim for asylum.
The government counters that the Board acted within its discretion when it summarily dismissed Chmielewski’s appeal because he did in fact fail to submit a separate written brief or statement after checking the box on the Notice of Appeal that indicated he intended to file one. Moreover, the Board did not abuse its discretion in denying the motion for reconsideration because it was in fact untimely filed by four days.
We will deny the petition for review docketed at C.A. No. 09-3077. Under 8 C.F.R. § 1003.2(b)(2), a motion to reconsider must be filed within 30 days after the date of the Board’s decision. See also 8 U.S.C. § 1229a(c)(6)(B). Chmielewski’s motion to reconsider was received on April 20, 2009, which was more than 30 days after the Board’s March 17, 2009 decision. Review of the Board’s denial of a motion to reopen or motion for reconsideration is for abuse of discretion only. See Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). See also Immigration & Naturalization Serv. v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). “Discretionary decisions of the [Board] will not be disturbed unless they are found to be arbitrary, irrational, or contrary to law.” Tipu v. Immigration & Naturalization Serv., 20 F.3d 580, 582 (3d Cir.1994) (internal quotations and citation removed). The Board’s timeliness determination pursuant to 8 C.F.R. § 1003.2(b)(2) was not arbitrary, irrational, or contrary to law.
Although an alien may file either a motion for reconsideration or a motion to reopen when challenging counsel’s performance, Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and, construed as a motion to reopen, Chmielewski’s April 20, 2009 submission would have been timely filed, see 8 C.F.R. § 1003.2(c)(2) (“a party may file only one motion to reopen ... (whether before the Board or the Immigration Judge) and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered”), we do not fault the Board for not giving Chmielewski the benefit of the doubt with respect to how he styled his motion. Mr. Santo, in that untimely motion to reconsider, stated only that, after proceedings in Immigration Court came to an end, Chmielewski “attempted to change counsel/representation and it is unclear as to whether [his] then new appeal counsel submitted both an EOIR-27 representation form and/or brief to the BIA.” A.R. 13. Mr. Santo did not argue ineffective assistance of counsel to the Board in the motion to reconsider. Nor did Chmielew-ski comply with the procedural require*313ments for making such a claim.1 The Board would not have realized from the motion to reconsider that Reverend Vita-glione performed deficiently by failing to file a separate written brief or statement, as Chmielewski now asserts, see Petitioner’s Brief, at 11-12.
Accordingly, the Board did not abuse its discretion in treating Chmielewski’s motion as one for reconsideration only and denying it as untimely. Chmielewski also contends that the government opposed the motion to reconsider not on the basis of untimeliness but by arguing that Bhiski, 373 F.3d 363, could be distinguished. Because Chmielewski cites no authority for his assertion that the Board lacks authority to dismiss a motion to reconsider on the basis of untimeliness if the government opposes the motion on some other ground, we find no abuse of discretion in this regard either. The government did not affirmatively waive the timeliness objection or join in Chmielewski’s motion. Cf. 8 C.F.R. § 1003.2(c)(3)(iii) (addressing jointly filed motions to reopen).
We turn then to the petition for review docketed at C.A. No. 09-2087, which we will also deny. The regulation provides that: “A single Board member or panel may summarily dismiss any appeal or portion of any appeal in any case in which: * * * (E) The party concerned indicates on Form EOIR-26 or Form EOIR-29 that he or she will file a brief or statement in support of the appeal and, thereafter, does not file such brief or statement, or reasonably explain his or her failure to do so, within the time set for filing.” 8 C.F.R. § 1003.1(d)(2)(i)(E). Chmielewski was warned in both Form EOIR-26 and the Board’s briefing schedule Notice that summary dismissal was a possibility in the circumstance where the box indicating that a separate written brief or statement will be filed is checked and no separate written brief or statement is filed. Because Chmielewski does not challenge the regulation on due process grounds, we review the Board’s application of it in his case for abuse of discretion. See Singh v. Gonzales, 416 F.3d 1006, 1009 (9th Cir.2005); Rioja v. Ashcroft, 317 F.3d 514, 515 (5th Cir.2003).
In support of its decision, the Board, citing 8 C.F.R. § 1003.1(d)(2)(i)(E), noted that: (1) Chmielewski checked the box on the Notice to Appeal stating that he would file a separate written brief or statement; (2) he had until April 28, 2008 to submit a separate written brief or statement in support of his appeal; (3) the record did not contain a separate written brief or statement; and (4) Chmielewski failed to offer an explanation for his failure to timely submit the promised separate written brief or statement. In his brief, Chmielewski contends that it was not his fault that no separate written brief or statement was filed on appeal to the Board, but he did not comply with the Lozada procedural requirements or file a timely motion to reconsider or motion to reopen with the Board alleging deficient performance by counsel or a representative. Moreover, the loss of continuity in his case appears to have been caused by the decision to retain different counsel/representation after the *314proceedings in Immigration Court came to an end.
Chmielewski next contends that his case is not complex and his Notice of Appeal, Form EOIR-26, put the Board on notice of what was at issue in his case. See Petitioner’s Brief, at 15-16. Having reviewed the record, we conclude that the Notice of Appeal, Form EOIR-26, does not adequately apprise the Board of the bases for the appeal. According to his Notice of Appeal, Chmielewski sought to raise a due process claim of an unfair hearing and a claim challenging the IJ’s weighing of the testimony and determination that the government of Poland does not persecute on the basis of sexual orientation or acquiesce in persecution by private actors.
With respect to the claim of an unfair hearing, Chmielewski did not identify the prejudicial documents referred to in the Notice of Appeal, which the government allegedly sought to introduce, nor did he identify with any specificity what aspects of his merits hearing were unfair. The basis of this contention of an unfair hearing is not at all apparent from the administrative record. The government sought a continuance early in the proceedings due to an unspecified “pending investigation,” A.R. 568, but that motion alone was insufficient to render the hearing unfair. Moreover, the IJ was thorough in her review of Chmielewski’s evidence, and she issued a comprehensive, reasonable decision, which discussed the evidence and the relevant legal issues. With respect to the merits of his application for asylum, Chmielewski did not identify in his Notice of Appeal the specific facts or law that should have resulted in a reversal of the Immigration Judge. Nor did he remedy either of the deficiencies we have noted in his motion to reconsider. We thus conclude that the Board acted within its discretion in summarily dismissing Chmielewski’s appeal where he failed to submit a separate written brief or statement as he indicated he would and the Notice of Appeal failed to apprise the Board adequately of the bases for his appeal. See Rioja, 317 F.3d at 515.2
Chmielewski contends that, under Bhiski, 373 F.3d 363, a brief is optional rather than mandatory, but the Board’s summary dismissal procedure only applies where the alien checks the box indicating that he intends to file a separate written brief or statement and then does not follow through. In Bhiski, we considered whether the alien properly exhausted his administrative remedies where he did not file a separate written brief or statement. We held that the alien exhausted his administrative remedies by stating his issue adequately in his Notice to Appeal, and we therefore did not lack jurisdiction over the petition for review. 373 F.3d at 367. Bhi-ski thus concerned the adequacy of an alien’s efforts to exhaust his administrative remedies and our jurisdiction over his petition for review, see id. at 368. It did not concern the Board’s discretion to summarily dismiss an appeal on procedural grounds, and thus is inapposite.
For the foregoing reasons, we will deny the consolidated petitions for review.
. The Board requires that a timely motion to reconsider or reopen based upon a claim of ineffective assistance of counsel should be supported by an affidavit that sets forth the agreement that was entered into with former counsel with respect to the actions to be taken, and former counsel must be informed of the allegations and allowed the opportunity to respond. Matter of Lozada, 19 I. & N. Dec. at 638. The alien must also file a complaint with the bar, but this is not an absolute requirement under Lu v. Ashcroft, 259 F.3d 127, 134 (3d Cir.2001).
. In addition, we are not empowered to conduct the de novo inquiry Chmielewski seeks. See, e.g., Gonzales v. Thomas, 547 U.S. 183, 186, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006) (per curiam). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478897/ | OPINION
PER CURIAM.
Aurora Lopez, a citizen of Guatemala, petitions for review of a Board of Immigration Appeals (“BIA”) order denying her application for cancellation of removal. The Government has filed a motion to dismiss thé petition for lack of jurisdiction.
I
Lopez was charged as removable and appeared before the Immigration Judge (“IJ”) in 2007. She admitted to three of the four charges against her and conceded removability, but sought cancellation of removal under INA § 240A(b), 8 U.S.C. § 1229b(b) (2006). As grounds for relief, Lopez testified that her removal to Guatemala would create an exceptional and extremely unusual hardship on her son, Onar, an American citizen who was 20 years old at the time of the removal hearing.
The IJ denied relief, reasoning that, although Lopez satisfied the other requirements for cancellation of removal, she failed to demonstrate that her removal would impose an exceptional and extremely unusual hardship on her son. The BIA agreed and dismissed Lopez’s appeal. Lopez then filed a petition for review, which prompted the Government’s motion to dismiss.
II
Pursuant to the REAL ID Act of 2005, courts lack jurisdiction to review the denial of discretionary relief, including cancellation of removal. See 8 U.S.C. § 1252(a)(2)(B). Whether the United States citizen child of an alien will suffer “exceptional and extremely unusual hardship,” as required for cancellation of removal, is precisely such a discretionary determination. See INA § 240A(b)(1)(D); Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir.2003). Accordingly, we lack jurisdiction to review the Agency’s decision that Lopez failed to demonstrate exceptional and extremely unusual hardship.
Nevertheless, we retain jurisdiction to review constitutional claims and questions of law raised in a petition for review. See § 1252(a)(2)(D). In her counseled petition for review, Lopez raises three arguments to avoid the jurisdictional bar. The Government counters that we lack jurisdiction because Lopez’s purported questions of law are not colorable and she instead essentially takes issue with the IJ’s and BIA’s exercise of discretion. For the reasons discussed below, we agree with the Government and will dismiss the petition for review on that basis.
First, Lopez contends that the IJ misapplied the standard for determining whether she demonstrated an exceptional and extremely unusual hardship. In making that determination, an IJ must consider hardship factors in the aggregate. See Matter of Monreal-Aguinaga, 23 I. & N. Dec. 56, 63-64 (BIA 2001) (discussing the factors the Agency should consider in assessing an exceptional and extremely unusual hardship). Lopez contends that the IJ failed to consider the aggregate factors in her case, but instead focused on the fact that Onar’s father, who lives near him in New Jersey, could provide him with support. Lopez’s argument lacks merit. Both the IJ and BIA expressly considered a range of factors — including Onar’s age, education, ability to work, and support *317from other relatives, including his father, who lived nearby — in determining that the requisite hardship had not been demonstrated.
Second, Lopez argues that, in denying relief, the BIA improperly considered that her son “aged out” during the pendency of her appeal, as he turned 21 during that time. Her argument is vague and somewhat confusing, as she seems to use “aged out” in an inapt context. At most, we can read her use of the term “aged out” to suggest that the Board wrongly determined that her son was not a qualifying relative because cancellation applications may not be based on hardship to United States citizen children aged 21 or older. See 8 U.S.C. § 1101(b)(1) (defining a child as an unmarried person under 21 for purposes of the INA); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144-45 (9th Cir.2002) (holding that a person 21 years of age or older is not a “child,” for purposes of cancellation of removal). In its opinion, the BIA simply noted that Onar “was 20 years of age at the time of the hearing below and turned 21 during the course of this appeal.” A.R. 2. We agree with the Government that this passing reference to Onar’s age provides no basis to conclude that the Board denied relief on that basis.
Finally, Lopez argues that the BIA violated her constitutional right to due process by failing to adhere to Board precedent, instead “interpret[ing] the law in any willy nilly way it wants.” Brief for the Petitioner, 6. However, Lopez fails to provide any useful elaboration on this claim. See id. at 5-6. In concluding that Lopez failed to demonstrate an exceptional or extremely unusual hardship, the BIA cited two precedential opinions — Matter of Monreal-Aguinaga, and Matter of Andazola-Rivas, 23 I. & N. Dec. 319 (BIA 2002)— both of which discuss the standard for demonstrating such a hardship. There is plainly nothing improper about the Board’s reliance on these cases, and nothing in the record supports Lopez’s vague contention that the BIA ran afoul of the legal standards set forth in those cases — or any other controlling law — in denying her request for cancellation of removal.
Accordingly, we will dismiss the petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478899/ | OPINION
PER CURIAM.
Fang Rong Zheng petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of her motion to reopen deportation proceedings and file a successive asylum application. For the reasons that follow, we will deny the petition.
I.
Fang Rong Zheng is a 32-year-old citizen of China, who entered the United States without being admitted or paroled in March 2001. In March 2002, the Immigration and Naturalization Service filed a Notice to Appear and placed Zheng in removal proceedings. Zheng conceded re-movability and applied for asylum, withholding of removal, and relief under the Convention Against Torture. In support of her application, she argued that because of the birth of her child in the United States, in violation of China’s family planning policy prohibiting pregnancy out of wedlock, she feared that she would be forced to have an abortion and undergo sterilization if she became pregnant again upon returning to China.
In March 2004, after a hearing on the merits, the Immigration Judge (“IJ”) denied Zheng’s application. Finding discrepancies and omissions between Zheng’s asylum application and her testimony, the IJ ultimately concluded that Zheng was not credible. Zheng appealed the IJ’s decision and, on July 21, 2005, the BIA affirmed the IJ’s decision. Zheng did not file a petition for review of the BIA’s decision with this Court.
Over seventeen months later, on January 11, 2007, Zheng filed with the BIA a motion to reopen and to file a successive asylum application. She asserted that her motion was exempt from the ninety-day time restriction governing motions to reopen because her motion was based on the “changed circumstances” exception in INA § 208(a)(2)(D). Alternately, she requested that the BIA reopen her case sua sponte *324under the discretion granted to it under 8 C.F.R. § 1003.2(a). Specifically, Zheng contended that if she returned to China, she would be subject to sterilization under China’s one-child policy because she had given birth to a second child since her removal hearing.
The BIA denied her motion to reopen based on its determinations that her motion was untimely and that the evidence she submitted — namely the birth of her second child — did not reflect changed circumstances in China or exceptional circumstances such that reopening was warranted. The BIA also concluded that the evidence Zheng submitted did not reflect changed circumstances in China to warrant exercising jurisdiction to consider her successive asylum application. Zheng timely petitioned this Court to review the BIA’s decision.
II.
We have jurisdiction over the petition for review pursuant to 8 U.S.C. § 1252. We review the BIA’s findings of fact for substantial evidence and the denial of the motion to reopen for abuse of discretion.1 See Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d Cir.2002). The BIA’s decision is entitled to “broad deference.” Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003). Thus, in order to succeed on the petition for review, Zheng must show that the BIA’s discretionary decision was arbitrary, irrational, or contrary to law. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994) (quotation omitted). Zheng has failed to make such a showing.
III.
The BIA denied the motion to reopen because it was untimely and because Zheng did not meet the exception for changed circumstances under 8 C.F.R. § 1003.2(c) or exceptional circumstances under 8 C.F.R. § 1003.2(a). The motion was undisputably untimely as it was filed over seventeen months after the BIA denied Zheng’s appeal. See 8 C.F.R § 1003.2(c)(2) (motions to reopen must be filed within 90 days of a final order). Zheng did not contest the tardiness of her motion; instead she asserted that it fell within the exception of 8 C.F.R. § 1003.2(c)(3)(ii), which permits reopening “based on changed circumstances arising in the country of nationality ... if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.”
In support of reopening, Zheng submitted (1) an affidavit; (2) evidence of her two children’s births in 2001 and 2006; (3) a 2005 Country Report for China; (4) Fuzhou City regulations on family planning, dated April 1996; (5) 2004 testimony of Assistant Secretary of the State Department; and (6) an April 2006 New York Times article discussing individuals who were returned to China and forcibly sterilized. (See A.R. 9-206.) The BIA found that her evidence — namely the birth of her two children in the United States — did not constitute “changed circumstances arising in the country of nationality” as required by 8 U.S.C. § 1229a(c)(7)(C)(ii) and 8 C.F.R. § 1003.2(c)(3)(ii) to waive the ninety-day deadline for motions to reopen. This conclusion comports with our precedent, see Liu v. Att’y Gen., 555 F.3d 145, *325148 (3d Cir.2009), and we find that the BIA did not abuse its discretion in denying Zheng’s untimely motion to reopen.2
Zheng’s argument that she is entitled to file a successive asylum application is also foreclosed by our decision in Liu, 555 F.3d at 150-51. We have held that in considering an application to file a successive asylum application, the BIA should apply 8 U.S.C. § 1229(a)(7)(C)(ii), which requires evidence to demonstrate “changed country conditions arising in the country of nationality.” Id. Zheng argues that such an interpretation violates the equal protection clause of the Fifth Amendment, in that it holds aliens who have already submitted a prior asylum application to a more stringent standard than otherwise similarly-situated aliens who have never filed an asylum application. In Liu, we acknowledged Zheng’s argument, see id. at 151; however, we found that to interpret 8 U.S.C. § 1158(a)(2)(B) otherwise would circumvent 8 U.S.C. § 1229a(c)(7)(A) and “would not honor Congress’ purpose in the INA to avoid abuse of the system.” Id.
For the above reasons, we will deny the petition for review.
. We have no jurisdiction to review the BIA’s decision to decline to invoke its sua sponte authority to reopen a case under 8 C.F.R. § 1003.2(a). See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474 (3d Cir.2003) (holding that such authority “is committed to [the agency's] unfettered discretion. Therefore, the very nature of the claim renders it not subject to judicial review”) (quoting Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999)).
. We note that in Zheng’s motion to the BIA, she submitted evidence related to conditions in China, but she did not argue that her motion was based on changed circumstances in China, instead conceding that the motion was based on her changed personal circumstances. Thus, we deny the petition for review, despite the BIA's cursory and concluso-ry denial. See Zheng v. Att’y Gen., 549 F.3d 260, 268 (3d Cir.2008) (holding that the BIA must explicitly consider any country conditions evidence that materially bears on an applicant’s claim). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478901/ | OPINION
PER CURIAM.
Chetan Thakar appeals the dismissal of his pro se complaint asserting claims of legal malpractice and conspiracy. We will affirm.
I.
Thakar filed a two-count complaint in the United States District Court for the District of New Jersey asserting claims of (1) legal malpractice against four lawyers (Resnick, Nirenberg, Manta, and Tan) whom he had retained to represent him in civil actions in state and federal court, and (2) a conspiracy between each of those four lawyers and the Community Hospital Group Inc. t/a JFK Medical Center (“JFK”).
According to the complaint and its numerous attached exhibits, Thakar’s appointment as Chief Resident in Neurology at JFK was terminated in May 1998. Tha-kar received a failing score on a medical licensing exam, although he maintains that “the score he received ... is a forged document!!]” Compl. ¶ 13. Thakar filed suit in federal court, alleging discrimination, wrongful termination, and other claims, see Thakar v. JFK Medical Ctr., 149 Fed.Appx. 53 (3d Cir.2005), and he later filed suit in state court, alleging breach of contract, see Thakar v. JFK Medical Ctr., No. A1337-06, 2007 WL 1498816 (NJ.Super.Ct.App.Div. May 24, 2007).
After losing both suits, he filed this action, suing JFK on the theory that it had conspired with his lawyers. Thakar claimed that because his lawyers “committed malpractice in one way or another,” causing him to lose the federal and state cases, “[t]his raises extremely strong circumstances of conspiracy between each of these attorneys and JFK.” Compl. ¶ 38. He alleged, “[o]n information and belief, [that] JFK approached each attorney individually, ... and unduly influenced them into prejudicing Thakar’s claims against JFK.” Id. Thakar sought to recover damages.
The District Court granted JFK’s motion to dismiss. It held that Thakar’s allegations were insufficient under the requirements of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), to state a claim for conspiracy because Thakar rested his claim on the mere failure of his lawyers to prevail in the suits against JFK. Because Thakar alleged no other facts to support his conspiracy theory, the District Court concluded that the possibility of a conspiracy did not rise above the level of conjecture, and therefore the claim cannot survive dismissal under Rule 12(b)(6).
The District Court then granted Resnick and Nirenberg’s motion to dismiss, holding that (1) the malpractice claims must be dismissed with prejudice because Thakar failed to file an affidavit of merit under N.J.S.A. § 2A:53A-27, and (2) the conspiracy claims fail under Twombly. The District Court also granted Manta’s motion to dismiss for the same reasons, rejecting Thakar’s argument that his case falls within the common knowledge exception to the affidavit of merit requirement. Finally, after notice to Thakar, the District Court dismissed the claims against Tan without prejudice under Federal Rule of Civil Procedure 4(m) for failure to effect timely service of the summons and complaint. Thakar timely filed this appeal.
*328II.
The District Court had diversity jurisdiction under 28 U.S.C. § 1332. We have appellate jurisdiction under 28 U.S.C. § 1291. Our review is plenary of a dismissal under Rule 12(b)(6). Lora-Pena v. F.B.I., 529 F.3d 503, 505 (3d Cir.2008). When deciding a motion to dismiss, a court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008). We review a dismissal under Rule 4(m) for abuse of discretion. Boley v. Kaymark, 123 F.3d 756, 758 (3d Cir.1997).
Thakar first challenges the dismissal of his conspiracy claim. He argues that the allegations in his pro se complaint are sufficient to state a claim, and that the District Court erred in applying the standards of Twombly rather than what Tha-kar perceives as a more forgiving standard applied to pro se litigants in Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). We discern no error in the District Court’s analysis.
To survive a motion to dismiss, a complaint — even a pro se complaint — “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. We have held that a conspiracy claim “must include at least a discernible factual basis to survive a Rule 12(b)(6) dismissal.” Capogrosso v. Supreme Ct. of N.J., 588 F.3d 180, 184 (3d Cir.2009) (per curiam). While we are “mindful that direct evidence of a conspiracy is rarely available and that the existence of a conspiracy must usually be inferred from the circumstances ..., the rule is clear that allegations of a conspiracy must provide some factual basis to support the existence of the elements of a conspiracy: agreement and concerted action.” Id. (quoting Crabtree v. Muchmore, 904 F.2d 1475, 1481 (10th Cir.1990)).
Thakar’s conspiracy claim is premised on the fact that he lost his suits against JFK, and his rank speculation that JFK must have approached his lawyers and influenced them. These allegations are plainly insufficient. Cf. Capogrosso, 588 F.3d at 185 (plaintiff failed to state conspiracy claim based on allegation “that Judge Fast interacted with Judge Iglesias after presumably hearing her discuss her case in a hallway, and that Judge Iglesias’ subsequent adverse ruling gives rise to an inference of conspiratorial conduct”). While a litigant’s pro se status requires a court to construe the allegations in the complaint liberally, see Erickson, 551 U.S. at 94, 127 S.Ct. 2197, a litigant is not absolved from complying with Twombly and the federal pleading requirements merely because s/he proceeds pro se. Thakar’s allegations, construed liberally, fail to state a claim for relief.
Thakar argues that the District Court erred in failing to afford leave to amend the conspiracy claim. “We have instructed that if a complaint is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 236 (3d Cir.2008). Here, amendment would be futile. In response to JFK’s motion to dismiss, Thakar relied upon his *329speculation that a conspiracy was afoot because so many of his attorneys allegedly committed malpractice; he gave no indication that he could provide additional factual support for the claim. Similarly, in a proposed amended complaint filed with the District Court, Thakar merely sought to add another lawyer as a defendant for alleged malpractice; he set forth no additional facts to support the conspiracy claim. Thakar offers no explanation on this appeal as to how he would amend to state a viable claim. We are satisfied that leave to amend was not required.
Thakar next challenges the dismissal of his malpractice claim against Manta for failure to file an affidavit of merit.1 Under New Jersey law, which the parties agree governs this case, a plaintiff alleging malpractice by a licensed professional must, within 60 days after an answer to the complaint, “provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices.” N.J. Stat. Ann. § 2A:53A-27. This statute reflects substantive state law and must be applied in diversity actions. See Chamberlain v. Giampapa, 210 F.3d 154, 160 (3d Cir.2000). Failure to provide an affidavit of merit within the time required warrants dismissal “for failure to state a cause of action.” N.J. Stat. Ann. § 2A:53A-29.
Thakar concedes that he failed to file an affidavit of merit, but he argues that his case turns on “common knowledge” regarding legal malpractice, and thus no affidavit should be required. “The factual predicate for a common knowledge case is one where the carelessness of the defendant is readily apparent to anyone of average intelligence and ordinary experience.” Natale v. Camden County Corr. Facility, 318 F.3d 575, 579 (3d Cir.2003) (quotation marks omitted); see Hubbard v. Reed, 168 N.J. 387, 774 A.2d 495, 500 (2001) (“If jurors, using ordinary understanding and experience and without the assistance of an expert, can determine whether a defendant has been negligent, the threshold of merit should be readily apparent from a reading of the plaintiffs complaint.”). If, however, “the claim’s underlying factual allegations require proof of a deviation from the professional standard of care applicable to that specific profession,” an affidavit of merit is required. Couri v. Gardner, 173 N.J. 328, 801 A.2d 1134, 1141 (2002).
Thakar’s claim does not turn on common knowledge. Thakar challenges Manta’s alleged delay in filing suit in state court, which he claims resulted in dismissal of the suit as barred by the statute of limitations. As the District Court observed, understanding a lawyer’s duties with regard to a statute of limitations depends on an industry standard of care, and is beyond the experience of the ordinary person. Expert testimony would be required to determine the duty of care owed, and whether Manta’s actions breached that duty. See Aster ex rel. Garofalo v. Shoreline Behavioral Health, 346 N.J.Super. *330536, 788 A.2d 821, 825 n. 4 (N.J.Super.Ct.App.Div.2002) (“Because plaintiffs predicate for liability as asserted in the complaint is the manner in which a ‘licensed person’ exercised responsibilities and judgment, and because the respects in which the deficiencies occurred, if indeed they did occur, is not a matter within the knowledge of the average citizen or juror, plaintiff would need an expert in order to make out a prima facie case before the jury.”).
Assuming he must file an affidavit of merit, Thakar argues that he substantially complied with the statute. New Jersey recognizes substantial compliance with the affidavit of merit requirement, but to invoke the doctrine a defaulting party must show: “(1) the lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of petitioner’s claim; and (5) a reasonable explanation why there was not strict compliance with the statute.” Newell v. Ruiz, 286 F.3d 166, 169 (3d Cir.2002) (citation omitted). We fully agree with Manta that Thakar has not shown substantial compliance, as Thakar bases his argument mainly upon an assertion that he contacted numerous attorneys to represent him in the past, and was unable to obtain “competent representation.” Appellant’s Br. at 16; cf. Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 771 A.2d 1141 (2001) (plaintiffs submission of medical reports to the defendants’ insurance carrier before trial in an effort to settle claim constituted substantial compliance).
Finally, Thakar challenges the dismissal without prejudice under Rule 4(m) of his claims against Tan. Rule 4(m) provides that if service is not made within 120 days after the complaint is filed, the court “must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Thakar claims that he served Tan by certified mail at his New Jersey business address, and he points to a proof of service that he filed approximately two weeks after filing the complaint. (Docket # 3.) Tan filed a letter with the court claiming that he was never served. (Docket # 6.) On March 12, 2008, the Clerk entered an order advising that the matter would be dismissed unless Thakar could establish that he served within 120 days after filing the complaint. Thakar responded by letter stating that he would rely on the proof of service previously filed. (Docket # 44.) On March 20, 2009, the District Court dismissed the matter under Rule 4(m), finding that Thakar had failed to serve within the time required.
The federal rules provide in relevant part that an individual may be served in a judicial district of the United States by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Fed.R.Civ.P. 4(e)(1).2 Thakar does not cite any New Jersey rule that he believes supports his claim of proper service upon Tan. Personal service is the “primary method of obtaining in personam jurisdiction over a defendant” in New Jersey, N.J. Ct. R. 4:4-4, and Thakar, as noted, did not effect personal service. The New Jersey rules provide for “optional mailed service” by registered or certified mail in lieu of personal service, but “such service shall be effective for obtaining in personam jurisdiction only if the defendant answers the *331complaint or otherwise appears in response thereto.” N.J. Ct. R. 4:4-4(c). Tan never responded to the complaint, thereby making any certified mailing ineffective. Finally, under Rule 4:4-3, New Jersey permits service by certified mail if “personal service cannot be effected after a reasonable and good faith attempt.” N.J. Ct. R. 4:4-3. Thakar has demonstrated no attempt at personal service. On this record, the District Court properly dismissed the claims against Tan.
III.
We have considered Thakar’s remaining contentions, including those raised for the first time in his reply brief, and we find those contentions either waived or without merit. Based on the foregoing, we will affirm the District Court’s judgment.
. Thakar, who is an experienced and educated litigant, expressly limits the argument under "Point III” of his opening brief (and “Point IV” of his reply brief) to challenging the dismissal of his malpractice claim against Manta only. Because he does not raise any challenge to the dismissal of his malpractice claims against Resnick and Nirenberg, we deem those issues waived. See Capogrosso, 588 F.3d at 184 n. 1. The waiver notwithstanding, we are satisfied that Thakar’s claims were properly dismissed for failure to file an affidavit of merit.
. It is undisputed that Thakar did not serve Tan personally, did not leave a copy of the complaint at Tan’s dwelling house or usual place of abode with a suitable person, and did not deliver the complaint to an authorized agent. See Fed.R.Civ.P. 4(e)(2). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478903/ | OPINION
PER CURIAM.
Maurice Oparaji appeals pro se from the District Court’s post-judgment order denying what we construe as his motion to hold defendants in contempt. We will affirm.
I.
Oparaji filed a complaint alleging that North East Auto-Marine Terminal (“NEAT”), among others, breached a contract with him to ship a truck fitted with dredging equipment to Nigeria and committed various related torts. Oparaji apparently had delivered the truck to NEAT, but defendants had not shipped it to Nigeria. On October 23, 2007, a jury returned a verdict in favor of the defendants on all counts.
That same day, the District Court entered an order (1) noting that Oparaji’s truck remained on NEAT’s property, (2) directing the United States Marshals Service to supervise the return of the truck to Oparaji, and (3) requiring the parties to cooperate with the Marshal’s directions.1 Oparaji filed a motion to stay execution of that order. The District Court denied the motion, noting that defendants had no duty to store Oparaji’s truck and that its order merely required Oparaji to assume responsibility for his own property. See Oparaji v. N.E. Auto-Marine Terminal, No. 04-6445, 2007 WL 3226605, at *1 (D.N.J. Oct.29, 2007). Oparaji appealed from the jury verdict and the denial of his motion, and we affirmed in all respects. See Oparaji v. N.E. Auto-Marine Terminal, 297 Fed. Appx. 142, 146 (3d Cir.2008). Among other things, we noted that Oparaji “failed to provide any legitimate basis for vacating the District Court’s order” regarding the return of his truck and rejected his argument that “he should not have to deal with storing the vehicle, which is indisputably his property.” Id.
Approximately one year later, Oparaji filed the document at issue here, which he captioned merely as a “Judgment.” This time, Oparaji asserted that defendants had failed to return his truck as purportedly required by the District Court’s October 23 order and requested a monetary judgment in the amount of $198,750. Defendants filed declarations in opposition, *333asserting that Oparaji had failed to cooperate with several requests by the Marshal to facilitate the return of his truck, that NEAT stored Oparaji’s truck for more than one year after the District Court’s order before ceasing business and closing its yard in November 2008, and that Oparaji’s truck had thereafter been “scrapped” by a third-party towing company. Defendants also requested that the District Court enjoin what they characterized as further vexatious litigation by Opa-raji. Oparaji did not contest any of defendants’ averments.
On December 8, 2009, the District Court entered an order captioned as an “order noticing plaintiff with respect to further filings in the within litigation.” The District Court noted that its October 23 order contemplated that Oparaji would retrieve his truck from NEAT and merely directed the Marshal to supervise that retrieval. The District Court further concluded that “[t]o the extent the plaintiff is exercising whatever rights to get his truck back that could be inferred from the Court’s order ... they were long ago extinguished when he failed to make arrangements to pick up the truck[.]” Finally, the District Court noted defendants’ requests for an injunction against further litigation, but instead merely put Oparaji “on notice that [it] will impose Rule 11 sanctions as required in the event of further meritless filings.” Oparaji appeals.
II.
We construe Oparaji’s “Judgment” as a motion to hold defendants in contempt and award monetary damages as compensation for their purported violation of the October 23 order. We have jurisdiction under 28 U.S.C. § 1291 to review the denial of the motion. See Berne Corp. v. Government of the Virgin Islands, 570 F.3d 130, 135 n. 10 (3d Cir.2009). We do so for abuse of discretion, and may reverse “only where the denial is based on an error of law or a finding of fact that is clearly erroneous.” Roe v. Operation Rescue, 54 F.3d 133, 137 (3d Cir.1995). “We review a district court’s interpretation of its own order for abuse of discretion” as well. Gibbs v. Frank, 500 F.3d 202, 206 (3d Cir.2007).
We perceive no abuse of discretion here. Oparaji argues that the District Court erred in failing to hold defendants in contempt because the October 23 order required them to return the truck or initiate its return. As the District Court explained, however, the October 23 order contemplated that Oparaji would assume responsibility for the truck, which he resisted doing for almost two years. The order did not require defendants to initiate that process or store the truck indefinitely until Oparaji decided to do so. To the contrary, the order required only that they cooperate with the Marshal’s directions in supervising the truck’s return. Oparaji does not allege that defendants failed to cooperate with the Marshal in any respect or otherwise impeded his ability to retrieve the truck. Nor does he challenge the District Court’s finding that he failed to make any arrangements to retrieve the truck himself.
Oparaji also argues that the District Court’s ruling deprived him of property without a hearing, but the ruling did nothing of the kind. Instead, it merely denied his request for monetary sanctions for defendants’ purported violation of the October 23 order. Finally, Oparaji argues that the District Court impermissibly enjoined him from future litigation. The District Court, however, merely noted the possibility of sanctions in the future, and did not *334abuse its discretion in doing so.2
Accordingly, we will affirm. In addition to affirmance, certain defendants appear to request that we enter an order enjoining Oparaji from further vexatious litigation. We decline to do so at this time, but we will tax costs against Oparaji pursuant to Fed. R.App. P. 39(a)(2).
. The District Court entered two orders in this respect on October 23 (Dist. Ct. Docket Nos. 55 and 56). The second order is captioned as an "amended order” and merely amended the designation of one of the defendants contained in the first order. All references herein to the October 23 order are to the amended order, Docket No. 56.
. Oparaji raises several arguments that he did not present to the District Court. He argues, for example, that defendants committed the tort of conversion by “scrapping” his truck and that a new trial is required because defendants' assertion that his truck has been “scrapped” reveals that they misled the jury about the presence of his truck on NEAT's property. These arguments are beyond the scope of this appeal, but because the second argument concerns proceedings in the District Court we note that it lacks merit. NEAT asserted in the District Court that Oparaji’s truck was “scrapped” by a third-party towing company at some point after NEAT ceased doing business in November of 2008, which was over one year after the jury entered its verdict. That assertion has no bearing on the location of Oparaji’s truck at the time of trial. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478907/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gloria Bautista appeals the district court’s order adopting the magistrate judge’s reports and recommendations to grant Defendant’s summary judgment motion on her race and national origin discrimination claims, brought pursuant to *358Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order. Bautista v. Clemson Univ., No. 8:07-cv-01287-HFF, 2009 WL 742721 (D.S.C. Mar. 20, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478909/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In these consolidated appeals, David Kissi appeals from two orders entered by the district court for Northern District of Ohio transferring his cases to the district court for the District of Maryland. Because appeals from those orders must be filed in the Sixth Circuit, which has already issued an opinion dismissing one of these appeals, we dismiss the appeals for lack of jurisdiction. See 28 U.S.C. § 1294 (2006).
*363Further, we decline to transfer the appeals to the Court of Appeals for the Sixth Circuit as we do not find that such a transfer is in the interest of justice. See 28 U.S.C. § 1631 (2006). Accordingly, we deny Kissi’s motion for appointment of counsel and dismiss the appeals. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478873/ | OPINION
ROTH, Circuit Judge:
Dion Muth appeals the denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). The District Court had jurisdiction under 18 U.S.C. § 3231, and this Court has jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s interpretation of the Sentencing Guidelines is de novo, and our review of its decision to deny Muth’s sentence reduction is for abuse of discretion. United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009).
Because we write primarily for the parties, we only briefly recite the facts. Muth pleaded guilty to charges of possession with intent to distribute crack cocaine and powder cocaine, in violation of 21 U.S.C. § 841(a)(1). The United States Probation Office calculated a base offense level of 30 for this crime and an offense level of 32 under the Career Offender enhancement, U.S.S.G. § 4B1.1. The District Court applied the higher offense level of 32, pursuant to § 4B1.1(b), in sentencing Muth to 150 months.
Subsequently, the United States Sentencing Commission retroactively amended the guidelines concerning crack cocaine, *243generally reducing the base offense levels by two. U.S.S.G.App. C, Amend. 706 (Nov. 1, 2007). Muth then moved for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on that amendment. The District Court found that Amendment 706 did not apply to Muth, since his sentence was based on the Career Offender enhancement and not his crack cocaine conviction, consistent with this Court’s Mateo decision.
This Court determined in Mateo that Amendment 706 does not apply to career offenders because their sentences are based on the Career Offender enhancements instead of the crack cocaine offense levels. 560 F.3d at 155. Muth acknowledges that Mateo is controlling, but he appeals this decision for the purpose of preserving this issue for future review. Because Mateo is clear and controlling, we will affirm the judgment of the District Court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478874/ | OPINION
PER CURIAM.
Petitioner, Wimalarathne Adhikari Ara-chchillage, seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons,- we 'will deny his petition.
I.
Arachehillage, a native and citizen of Sri Lanka, legally entered the United States on a visa on October 24, 2004. Arachchil-lage remained in the United States beyond the authorized stay period. He was served with a Notice to Appear and charged as removable under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as an alien who had remained in the United States for a time longer than permitted. On March 21, 2007, he filed an application for asylum and withholding of removal, and also sought protection under the Convention Against Torture (“CAT”).
Arachehillage sought asylum on account of his political opinion as a member of the United National Party (“UNP”), a rival political party to the JVP.1 Arachehillage alleged that the JVP, formerly a terrorist group that took control of the parliament in April 2004, sought vengeance against the UNP. He testified that members from the JVP threw rocks and fired shots at the factory building where he worked, and came to his home and threatened him with death, causing him to flee Sri Lanka. Ara-chchillage testified that he left Sri Lanka for two weeks to escape the JVP, and when he returned, the death threats continued. Arachehillage detailed an incident where he witnessed the abduction of a political colleague; although he did not know who participated in the abduction, he suspected it was members of the JVP. In addition, Arachehillage testified that he had never been physically assaulted or arrested by the police or any group in Sri Lanka, but because of his fear of the ongoing civil strife, he decided to flee Sri Lanka permanently.
Arachehillage claimed that he did not apply for asylum upon arriving in the United States because he was afraid that he could be harmed and did not know that he could file for protection. He testified that his family’s house was destroyed by fire in January 2007, and stated that his father suspected the JVP, but admitted that there were no witnesses and he did not know who was responsible. He also discussed how his housekeeper in Sri Lan-ka quit after being threatened and stated that someone stole garden tools and livestock from his property. He did not know who was involved with these incidents.
The IJ determined that Arachehillage was statutorily ineligible for asylum because his application was time-barred and he failed to qualify for any exceptions to the one-year bar. In analyzing Arachchil-lage’s claim for withholding of removal, the IJ found that he had not experienced past persecution and could not show well-founded fear of future persecution. Thus, he failed to meet the stricter burden of proof for withholding of removal. The IJ also concluded that Arachehillage did not show that he should receive CAT protection. The BIA agreed with the IJ’s determination that Arachchillage’s asylum application was time-barred, that he failed to demonstrate persecution justifying withholding of removal, and that he was ineligible for CAT protection. The BIA dismissed the appeal, and Arachehillage, through counsel, filed a timely petition for *245review. The government opposes the petition.
II.
Under the Immigration and Nationality Act (“INA”), “[n]o court shall have jurisdiction to review any determination of the Attorney General” that an asylum application is untimely. 8 U.S.C. § 1158(a)(8). Thus, we lack jurisdiction to review the agency’s dismissal of Arachchillage’s asylum application as barred by the one-year limitations period, as well as whether the statutory period was tolled by changed conditions. See Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.2003). Although the REAL ID Act of 2005, 8 U.S.C. § 1252(a)(2)(D), restored judicial review of constitutional claims and questions of law presented in petitions for review, Ara-chchillage presents no such claim regarding the timeliness of his asylum application. See Jarbough v. Att’y Gen., 483 F.3d 184, 188 (3d Cir.2007).
We do, however, have jurisdiction over Arachchillage’s challenge to the denial of withholding of removal and relief under the CAT. See Tarrawally, 338 F.3d at 185-86. We review these factual determinations under the substantial evidence standard, and will uphold the decisions “unless the evidence not only supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005) (internal citations omitted).
To qualify for withholding of removal, Arachchillage must show that if returned to Sri Lanka, a clear probability exists that his life or freedom would be threatened because of his political opinion. See Li Wu Lin v. INS, 238 F.3d 239, 244 (3d Cir.2001). Withholding of removal has a higher burden of proof than asylum. Id.; Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir.2003). To meet the more stringent standard for withholding of removal, an applicant must provide objective evidence that future persecution is “more likely than not” to occur upon removal. Lukwago, 329 F.3d at 182 (citing 8 C.F.R. § 208.16(b)(2)); see also Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir.2005).
We agree that Arachchillage failed to prove a well-founded fear of future persecution.2 Arachchillage’s claims are based on speculation that the JVP was responsible for the abduction of a political colleague and the burning of his father’s house. He provides no objective evidence that he will be targeted on account of his involvement with UNP or his political beliefs if he returns to Sri Lanka. He does not show that the government would be unwilling or unable to control any alleged persecution, especially when in light of his testimony regarding the efforts by the Sri Lankan police to investigate his colleague’s abduction. Cf. Lie v. Ashcroft, 396 F.3d 530, 537-38 (3d Cir.2005). Arachchillage also testified that he was able to return to Sri Lanka, unharmed, after a two-week trip abroad, as well as depart Sri Lanka without incident using his own passport. This evidence undercuts his claim of a clear probability of persecution. See Toure v. Att’y Gen., 443 F.3d 310, 318 (3d Cir.2006).
Finally, the record is devoid of any evidence that would render Arachchillage eligible for CAT protection, as he fails to show that it more likely than not that he will face torture if removed to Sri Lanka. See Zubeda v. Ashcroft, 333 F.3d 463, 471 *246(3d Cir.2003). Accordingly, we will deny Arachchillage’s petition.
. JVP stands for Janatha Vimukthi Peramuna (People's Liberation Front).
. Arachchillage did not contest on appeal to the BIA whether the IJ erred in determining that he failed to demonstrate past persecution. Thus, he has failed to exhaust his administrative remedies regarding this issue, and this Court lacks jurisdiction to address this issue. See 8 U.S.C. § 1252(d)(1). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478877/ | OPINION
SMITH, Circuit Judge.
Kristin Baum appeals the District Court’s entry of summary judgment in favor of AstraZeneca, her former employer. Baum sought relief under the Pennsylvania Minimum Wage Act (“PMWA”), 43 P.S. § 333.101 et seq., based on AstraZ-eneca’s purported failure to pay her for overtime work. The District Court concluded that Baum fell under the outside salesperson exemption of the PMWA, id. § 333.105(a)(5), and entered summary *247judgment in favor of AstraZeneca.1 We will affirm on different grounds.
I.
Facts
Baum worked as a Pharmaceutical Sales Specialist (“PSS”) for AstraZeneca from May 1, 2003, to November 1, 2006.2 As a PSS, Baum promoted AstraZeneca pharmaceuticals directly to physicians. She regularly visited approximately 150 physicians in her assigned territory, answering questions about AstraZeneca products, building relationships with physicians and their staffs, and trying to get physicians to commit to prescribing AstraZeneca products. Because company policy, federal regulations, and federal laws controlled the scope and nature of Baum’s interactions with physicians, AstraZeneca trained her on how to conduct a physician visit. Some of Baum’s interactions with physicians were “canned speeches” she learned through AstraZeneca’s in-house training.
To gain access to physicians, Baum would, among other things, schedule “access meals” where she would provide breakfast, lunch, or dinner to a physician, the physician’s staff, or both. These meals provided Baum opportunities to promote AstraZeneca products to physicians and their staffs. Baum also set up “prep” programs where physicians, some of whom were selected by her, addressed other physicians on medical topics. In the same vein, Baum arranged peer-to-peer meetings where physicians selected by AstraZ-eneca would meet with other physicians.
Baum normally worked sixty to seventy hours per week. She called on eight or nine physicians a day, amounting to ten to twelve hours a day in the field. On top of her field work, Baum spent approximately an hour each day checking e-mails, filling out expense reports, and worldng on spreadsheets. Baum’s base salary was $63,000.
Procedural History
Baum filed suit against AstraZeneca on March 27, 2007, in the Court of Common Pleas of Westmoreland County, Pennsylvania. On April 20, 2007, AstraZeneca removed the case to the United States District Court for the Western District of Pennsylvania. AstraZeneca later moved for summary judgment, arguing that Baum fell under the outside salesperson and administrative employee exemptions of the PMWA. The District Court concluded that Baum fell under the former exemption and granted AstraZeneca’s motion for summary judgment on March 31, 2009. Baum filed this timely appeal.
II.
We exercise “plenary review over the District Court’s grant of summary juclgment[.]” Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir.2005) (quoting Abramson v. William Paterson Coll, of N.J., 260 F.3d 265, 276 (3d Cir.2001)). A court should grant summary judgment “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). In applying that standard, “a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party’s favor.” Shuman, 422 F.3d *248at 146 (quoting Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir.1994)). “We may affirm the District Court on any grounds supported by the record.” Nicini v. Morra, 212 F.3d 798, 805 (3d Cir.2000) (en banc).
III.
Under the PMWA’s administrative employee exemption, anyone employed in a “bona fide ... administrative ... capacity” is exempt from the PMWA’s overtime protections. 43 P.S. § 333.105(a)(5). The exemption applies to employees whose (1) salaried compensation is at least “$250 per week, exclusive of board, lodging or other facilities,” 34 Pa.Code § 231.83(5), (2) “primary duty consists of the performance of office or nonmanual work directly related to management policies or general operation of his employer or the customers of the employer,” id. § 231.83(1), and (3) primary duty “requir[es] the exercise of discretion and independent judgment,” id. § 231.83(5).3 “In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered.” 29 C.F.R. § 541.202(a) (explaining “discretion and independent judgment” for the purposes of the Fair Labor Standards Act).4 Baum’s employment at AstraZeneca satisfied these requirements.5
The salary requirement of $250 per week was indisputably satisfied. Baum’s base salary was $63,000, which amounts to approximately $1,211 per week. The second requirement, performance of nonman-ual work directly related to AstraZeneca’s general operation, see 34 Pa. Code § 231.83(1), was satisfied by Baum’s marketing and advertising of AstraZeneca’s products, see 29 C.F.R. § 541.201(b) (‘Work directly related to ... general business operations includes ... work in ... advertising [and] marketing^]”). See Reich v. John Alden Life Ins. Co., 126 F.3d 1, 12 (1st Cir.1997) (applying FLSA administrative employee exemption to insurance marketing representatives); see also Reich v. Avoca Motel Corp., 82 F.3d 238, 240 n. 5 (8th Cir.1996) (stating that “engaging in ‘public relations’ work to gain repeat customers” was an administrative task under the FLSA). Baum visited physicians and organized events, such as access meals, prep programs, and peer-to-peer meetings.6 These activities “dissemi-nat[ed] information to the marketplace [and increased] understanding [of] customers and competitors” and thus were “directly related to [AstraZeneca’s general] *249operations[.]” John Alden Life Ins. Co., 126 F.3d at 12.
The third requirement was also satisfied. Baum’s “work required] the exercise of discretion and independent judgment.” 84 Pa.Code § 231.83(5). Baum had significant discretion in how she would approach physicians, whether it be through access meals, peer-to-peer meetings, or other means. In other words, she had to “compar[e] and ... evaluate] ... possible courses of conduct, and ... mak[e] a decision after the various possibilities ha[d] been considered.” 29 C.F.R. § 541.202(a). According to her resume, Baum “used innovative themes to gain access in offices where the physicians were difficult to see[.]” At her deposition she stated that, depending on the physician, she would change her promotion strategy:
Q: How would you change your promotion around depending on [the needs of the practice]?
A: If [the physician was not] writing, then we would just ask more questions. Get more data from the doctor. And do what we could to get them to -write more. Given the tools we had by the company. I mean, if it meant bringing in a national speaker. I mean, whatever approved resources that I had there approved by the company, that is what I would use.
In addition, Baum spent the majority of her time in the field, unsupervised, calling on physicians. See 29 C.F.R. § 541.202(c) (stating that an employee exercises discretion and independent judgment where she “has authority to make an independent choice, free from immediate direction or supervision”).7 Each day, Baum met with other PSSs and they collectively determined which physicians each PSS would visit that day. Baum decided how much time she would spend with a given physician depending on whether the physician was interested in her product. She also decided whether she would use a detail aid in her visit. Every visit was somewhat unique because each physician had different preferences, interests, and availability. After each visit, Baum would make post-call notes to record the details of the conversation. On future visits, she would avoid repeating a message the physician had recently heard. Overall, Baum’s day-to-day activities involved making numerous independent judgments on how best to promote AstraZeneca’s products.
Moreover, Baum’s duties were very similar to the plaintiff’s duties in Smith v. Johnson & Johnson, 593 F.3d 280 (3d Cir.2010), where we held that a pharmaceutical sales representative fell under the administrative employee exemption of the FLSA. Id. at 285. In Smith, the plaintiff, Patty Lee Smith, was tasked with visiting an average of ten physicians per day to extol the benefits of Johnson & Johnson’s pharmaceuticals. Id. at 282. Baum had a similar workload. She visited eight or nine physicians per day. Smith, in an effort to cultivate relationships with physicians, would bring food and coffee to physicians’ offices. Id. Baum similarly organized access meals. On physician visits, Smith “worked off of a prepared ‘message’ ” provided by her employer, id., just like Baum. Numerous other similarities exist. For example, both individuals could *250use only certain approved visual aids in their presentations to physicians, id., both were trained on how to conduct a physician visit by their employer, id., and both prepared post-call notes after physician visits, id. at 283. Thus, our conclusion that Baum exercised discretion and independent judgment in her day-to-day activities is further supported by the numerous similarities between Baum and Smith’s roles. See id. at 282-83.
IV.
To summarize, Baum’s salary of $1,211 per week exceeded the minimum salary requirement of $250 per week. Her promotional activities directly related to the general operation of AstraZeneca because she was involved in advertising and marketing AstraZeneca’s products. Baum’s day-to-day interactions with physicians required her to exercise a significant amount of discretion and independent judgment. Baum chose how she would promote As-traZeneca products to each physician in her territory. Her approach would change depending on the physician she was visiting. Based on these determinations, we conclude that Baum satisfied all the requirements of the PMWA’s administrative employee exemption, and she cannot avail herself of the PMWA’s overtime protections. Thus, we will affirm the District Court’s judgment.
. We have jurisdiction under 28 U.S.C. § 1291. The District Court exercised jurisdiction under 28 U.S.C. § 1332.
. Because we write only for the parties, we will presume knowledge of the record and recount the facts only briefly.
. The exemption also applies under other circumstances irrelevant to the instant case.
. Pennsylvania courts have looked to federal law regarding the Fair Labor Standards Act (“FLSA”) for guidance in applying the PMWA. Commonwealth of Pennsylvania Dept. of Labor and Indus., Bureau of Labor Law Compliance v. Stuber, 822 A.2d 870, 873 (Pa.Commw.Ct.2003), aff’d, 580 Pa. 66, 859 A.2d 1253 (2004) (applying “federal case law” regarding the FLSA to a PMWA claim). According to the Pennsylvania courts, "it is proper to give deference to federal interpretation of a federal statute when the state statute substantially parallels it.” Id.
. We need not reach the issue of whether Baum fell under the outside salesperson exemption of the PMWA, 43 P.S. § 333.105(a)(5). We may affirm the District Court on any grounds supported by the record. Nicini, 212 F.3d at 805.
. Our focus on promotion, advertising, and marketing should not be construed to have any bearing on the issue of whether a PSS makes sales for the puiposes of the PMWA. That issue is not addressed in this decision.
. Baum argues that she was subject to extensive oversight by her manager because she had to check her voice mail and e-mail three times a day. Mere oversight by a manager, however, cannot overwhelm the autonomy with which Baum operated on a daily basis while she was out in the field. See 29 C.F.R. § 541.202(c) (“[E]mployees can exercise discretion and independent judgment even if their decisions or recommendations are reviewed at a higher level.”). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478879/ | OPINION
PER CURIAM.
Raheem Taylor, a prisoner in New Jersey proceeding pro se, appeals the District Court decision dismissing his petition under 28 U.S.C. § 2254 for failure to exhaust his claims in state court. For the reasons that follow, we will affirm.
I.
In February 2007, Taylor was convicted in Superior Court, Burlington County, of second-degree robbery. He received a sentence of five years’ imprisonment. Taylor was represented by a public defender at trial and, after his conviction, requested that his attorney file a notice of appeal.
Although the notice of appeal was due before the end of April 2007, Taylor’s attorney failed to comply with his request. Taylor claimed that he made repeated attempts to contact his public defender, but received no response. In May 2007, Taylor sent several letters to the Clerk of the Superior Court, Appellate Division, complaining of his lawyer’s delay and seeking assistance. The Clerk provided Taylor with paperwork to proceed pro se and to file an appeal nunc pro tunc. Taylor sent the paperwork back, but the Clerk did not file it, presumably because the court accepted a late notice of appeal filed at the end of May by the public defender.
Thereafter, Taylor claimed, he continued his attempts to contact the public defender in furtherance of his appeal, but received no response. In September 2007, Taylor informed his attorney and the Appellate Division that he wished to proceed pro se. He then directed the Public Defender’s Office to order the transcripts he needed for his appeal. After a series of back-and-forth communications between Taylor, the Appellate Division Clerk’s Office, and the Public Defender’s Office, his motion was finally granted on May 28, 2008, pending a hearing.
While the motion to proceed pro se was pending, Taylor filed in the District Court a petition under 28 U.S.C. § 2254. Taylor argued that the delay in his state court proceedings — which stemmed from allegedly inadequate performance on the part of his public defender, unnecessary obstacles imposed by the Appellate Division Clerk’s Office, and a backlog in the Appellate Division that would result in disposition of his appeal being further prolonged- — amounted to a deprivation of his right to due process. The District Court dismissed the petition without prejudice because Taylor had not first exhausted available state court remedies. Taylor filed a notice of appeal, and we granted a certificate of appealability on the question whether the District Court should have *252excused exhaustion as a result of inordinate delay.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a District Court’s denial of a § 2254 petition when it did not conduct an evidentiary hearing. See Thomas v. Carroll, 581 F.3d 118, 128-24 (3d Cir.2009). Generally, a District Court may not entertain a § 2254 petition unless the applicant has exhausted all available state remedies. See § 2254(b)(1)(A). However, exhaustion may be excused if state remedies are absent or too ineffective to protect the applicant’s rights. See § 2254(b)(1)(B). Thus, although the exhaustion requirement exists as a matter of comity, see Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), that principle “weighs less heavily [when] the state has had an ample opportunity to pass upon the matter and has failed to sufficiently explain its ... delay,” and exhaustion may be excused. Hankins v. Fulcomer, 941 F.2d 246, 250 (3d Cir.1991); see also Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d Cir.1986).
Whether a delay is sufficiently “inordinate” to excuse exhaustion depends on the conduct of the appellant, interference by the state in the timely disposition of the matter, the progress made in state court, and the length of the delay. See Lee v. Stickman, 357 F.3d 338, 341-44 (3d Cir.2004). It appears that Taylor diligently attempted to have his public defender pursue his appeal and, when that approach proved unavailing, took it upon himself to do so. Despite his efforts, however, Taylor encountered some notable delays: the Clerk of the Appellate Division apparently provided conflicting information about what Taylor needed to do to proceed with his appeal; the public defender ordered incorrect transcripts and, when informed about the mistake, failed to promptly order the correct transcripts; and Taylor’s motion to proceed pro se, followed by a waiver of counsel hearing, took nearly six months to adjudicate. In total, about fifteen months elapsed from the time Taylor was sentenced (at which time he presumably decided to appeal) until he filed his § 2254 petition in the District Court.
We conclude, however, that the fifteen-month delay Taylor endured, although unfortunate, was not so egregious as to require excusing exhaustion. Much of the delay in this case was the result of apparent miscommunication and, arguably, a lack of diligent effort on the part of Taylor’s former attorneys to provide him with the transcripts he requested. On the other hand, Taylor has also prolonged the duration of his appeal by requesting several extensions of the briefing schedule— which was first issued in 2008 — so he could obtain these transcripts. Moreover, it appears that the Appellate Division has made efforts to further Taylor’s case — in particular, making efforts to ensure that Taylor receives the transcripts he claims are necessary to prepare his brief. We also take judicial notice that, as recently as December 2009, the Appellate Division granted yet another motion by Taylor to extend his time to file a brief and crafted a solution to Taylor’s allegation that portions of his transcript remain missing.1 In short, though he has certainly endured a delay, Taylor has not experienced the type of delay that warrants excusing the § 2254 exhaustion requirement. See, e.g., Lee, 357 F.3d at 341-44 (excusing exhaustion *253after 8-year delay caused by administrative mistakes); Moore v. Deputy Comm’r of SCI—Huntingdon, 946 F.2d 236, 242-43 (3d Cir.1991) (excusing exhaustion after state post-conviction petition lingered in state court for 40 months without any progress); Wojtczak, 800 F.2d at 354 (excusing exhaustion after 33-month delay, where multiple court-appointed attorneys failed to prosecute the appeal, and the state court failed to conduct any hearing).
We are confident that the Appellate Division will continue its efforts to resolve Taylor’s appeal in a timely manner. Accordingly, we will affirm. Taylor’s motion for expedited disposition of his appeal is denied.2
. Specifically, the Appellate Division instructed Taylor to file with his brief a certification averring the content of any missing transcript, its relevance, and the impact of its non-production.
. We note that the motion to expedite was filed after the Clerk advised Taylor that this matter would be submitted pursuant to Rule 34.1(a) on March 23, 2010. The motion and the Clerk’s letter apparently crossed in the mail. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478885/ | OPINION OF THE COURT
PER CURIAM.
Appellant Jihad Rashid, a federal prisoner incarcerated at the Federal Correctional Institution, McKean, in Bradford, Pennsylvania, committed four bank robberies in the State of Michigan. On May 25, 1999, he was arrested and taken into state custody and charged with three of the four bank robberies. A criminal complaint then was filed against him in United *261States District Court for the Eastern District of Michigan, charging Rashid with the fourth bank robbery in violation of 18 U.S.C. § 2118(a). The United States Attorney filed a petition for writ of habeas corpus ad prosequendum, seeking temporary custody of Rashid, and through which federal authorities obtained temporary custody of him. Once in temporary federal custody, Rashid pleaded guilty to the federal bank robbery count. On October 23, 2000, he was sentenced in federal district court to a term of imprisonment of 151 months. That term was later reduced to 139 months. The federal judge’s sentencing order was silent as to whether the sentence was to run concurrent with any other sentence.
Rashid was returned to state court, where he pleaded guilty to the remaining three armed robbery charges. He was sentenced in state court on November 14, 2000 to three concurrent terms of 5-20 years, and the state court directed that the state sentences were to run concurrent with the federal sentence. The state court awarded prior custody credit against the state sentence in the amount of 538 days for the time from the date of Rashid’s arrest, May 25, 1999, until November 13, 2000, the day before he was sentenced in state court. Rashid was transported to Michigan State Prison to begin serving his state sentence.
Rashid then filed a motion in state court to set aside his state sentences on the ground that the manner in which he was serving his state and federal sentences was not proper. The state court granted the motion and vacated the state sentences, and Rashid was released from state custody to the custody of the United States Marshals Service, pursuant to a federal detainer, on March 7, 2001. The Bureau of Prisons designated Rashid to a federal correctional institution in South Carolina and later designated him to FCI-McKean. On February 14, 2002, the state court re-sentenced Rashid to the same three concurrent 5-20 year sentences for the state armed robbery convictions. The state court directed that Rashid receive 995 days prior custody credit against his state sentences, and that the state terms run concurrently with his federal sentence. The 995 days of prior custody credit was for the time served between the date of Rashid’s arrest, May 25, 1999, and February 13, 2002, the day before he was re-sentenced in state court.
Once incarcerated at FCI-McKean, the BOP calculated that Rashid’s full federal term would expire on May 22, 2012. His projected release date, which takes into account good time credit, was calculated to be November 24, 2010. The BOP effected concurrency of the federal sentence and state sentence to the extent possible through a nunc pro tunc designation pursuant to our decision in Barden v. Keohane, 921 F.2d 476 (3d Cir.1990). Because of this designation, Rashid’s federal sentence began to run on the date it was imposed, October 23, 2000, even though he was still in the custody of the Michigan Department of Corrections on that date. The BOP also determined that Rashid was not entitled to any credit against his federal sentence for the time he spent in state custody from the date of his arrest, May 25, 1999, through October 22, 2000, the day before he was sentenced in federal court, see United States v. Wilson, 503 U.S. 329, 337, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) (18 U.S.C. § 3585(b) prohibits double credit).
After exhausting his administrative remedies, Rashid filed a pro se habeas corpus action pursuant to 28 U.S.C. § 2241 in United States District Court for the Western District of Pennsylvania, alleging that the BOP improperly denied him credit
*262against his federal sentence. He contended that he should be credited for time served in official detention pursuant to a state sentence that was vacated. Following consent by the parties to the jurisdiction of a magistrate judge, 28 U.S.C. § 636(c)(1), and the submission of a response by the Warden of FCI-McKean, the Magistrate Judge denied the habeas corpus petition.
Rashid appeals. The Warden filed a motion for summary affirmance and Rash-id filed a motion to proceed in forma pauperis. Our Clerk granted him leave to appeal in forma pauperis and advised him that his appeal was subject to summary dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. Rashid submitted a response in opposition to summary action, which we have considered.
We will summarily affirm the order of the District Court because no substantial question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. We have jurisdiction under 28 U.S.C. § 1291. The issues raised by the appeal are legal in nature, and we thus exercise plenary review. Barden, 921 F.2d at 479. The authority to calculate a federal prisoner’s period of incarceration for the federal sentence imposed and to provide credit for time served is delegated to the Attorney General, who acts through the BOP. Wilson, 503 U.S. at 334-35, 112 S.Ct. 1351. We may correct an error by the BOP through a writ of habeas corpus where that error is fundamental and carries a serious potential for a miscarriage of justice. Barden, 921 F.2d at 479. We have carefully reviewed the record and agree with the Magistrate Judge that Rashid is not entitled to the credit he seeks.
Section 3621(b) of Title 18 authorizes the BOP to designate the place of confinement for purposes of serving federal sentences of imprisonment. See Barden, 921 F.2d 476. The BOP, through a nunc pro tunc designation, saw to it that Rashid would begin receiving credit towards the service of his federal sentence while still in state custody. By designating the Michigan Department of Corrections as the place for Rashid’s federal sentence to be served initially, the BOP gave effect to the state judge’s decision, to the extent it could, that Rashid should serve his state sentences and federal sentence concurrently.1
Moreover, Rashid’s federal sentence was properly calculated as commencing on the date it was imposed. A federal sentence commences when the defendant is received by the Attorney General for service of his federal sentence. See 18 U.S.C. § 3585(a). See also United States v. Pungitore, 910 F.2d 1084, 1118-19 (3d Cir.1990). As a result, a federal sentence cannot begin to run earlier than on the date on which it is imposed. See United States v. Labeille-Soto, 163 F.3d 93, 98 (2d Cir.1998). The BOP could not commence Rashid’s federal sentence prior to October 23, 2000.
Finally, Rashid is not entitled to any credit against his federal sentence for the time spent in official detention prior to October 23, 2000, because 18 U.S.C. § 3585(b) prohibits this double credit. United States v. Wilson, 503 U.S. 329, 337, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). See also Vega v. United States, 493 F.3d *263310, 314 (3d Cir.2007). As explained by the Magistrate Judge, that time was credited to his state sentence.
In a traverse, Rashid contended that he was entitled to additional prior custody credit pursuant to Kayfez v. Gasele, 993 F.2d 1288 (7th Cir.1993). See Traverse, at ¶ 5 (citing to 993 F.2d 1288 but incorrectly referring to the case as “Kaye ”). This contention prompted the BOP to conduct a review of Rashid’s sentence. See Hazelton Declaration, at ¶ 3. Pursuant to Kayfez, the BOP will grant an amount of qualified double credit if the following conditions are present: (1) the non-federal and federal sentences are concurrent; (2) the raw effective full term (“EFT”) date of the non-federal term is later than the raw EFT of the federal term; and (3) the non-federal raw EFT, after application of qualified non-federal presentence time, is reduced to a date that is earlier than the federal raw EFT date. See BOP Program Statement 5880.28; Hazelton Declaration, at ¶ 6. The raw EFT is determined by adding the length of the sentence imposed to the commencement date of the sentence. See Hazelton Declaration, at ¶ 7. Qualified non-federal presentence time is the number of days between the date of the non-federal arrest and the commencement date of the first sentence, whether federal or non-federal. See Hazelton Declaration, at ¶ 8.
Hazelton determined, on behalf of the BOP, that Rashid did not qualify for the Kayfez credit because he met only the first two requirements for the credit — that his state and federal sentences are concurrent and that his state raw EFT is later than his federal raw EFT. Rashid could not satisfy the third requirement, because his state EFT date, after application of qualified non-federal presentence time, was later than his federal raw EFT date. Hazel-ton explained:
In inmate Rashid’s case, I determined his federal raw EFT date as May 22, 2012 (139 months after October 23, 2000), and I determined his non-federal raw EFT date to be February 13, 2022 (twenty years after February 14, 2002). Also, from his records, I determined the date of his non-federal arrest was May 25, 1999. The date his first sentence commenced was October 23, 2000. The number of days between May 25, 1999 and October 22, 2000 (the day before the commencement of the first sentence), is 517 days. Thus, his non-federal raw EFT date (February 13, 2022), adjusted by qualified presentence time (517 days), resulted in an adjusted non-federal date of September 14, 2020. His federal raw EFT date is May 22, 2012 (139 months after October 23, 2000). Therefore, because his adjusted nonfederal EFT date (September 14, 2020), is later than his federal raw EFT date (May 22, 2012), he is not entitled to qualified presentence credit under Kayfez.
See Hazelton Declaration, at ¶ 9.
It is true that, as of March 7, 2001, when the U.S. Marshal Service took custody of Rashid, there was no longer (at least for the time being) a state sentence which credited prior official detention, but Rash-id did not challenge the validity of P.S. 5880.28, and we discern no error in the Hazelton computation that is fundamental and carries a serious potential for a miscarriage of justice, Barden, 921 F.2d at 479. As it now stands, Rashid has a prior custody credit of 995 days against his state sentences, which otherwise would not expire until February 13, 2022. Because he will be released from federal custody no later than May 22, 2012, he will receive the full benefit of this almost 2% year credit.2
*264For the foregoing reasons, we will summarily affirm the order of the District Court denying Rashid’s habeas corpus petition.
. Rashid remained in the custody of the State of Michigan from May 25, 1999, the date of his arrest, until he was released on March 7, 2001 into the custody of the U.S. Marshal Service. See generally Rios v. Wiley, 201 F.3d 257, 274 (3d Cir.2000) (prisoner not entitled to credit against federal sentence for time spent in federal detention pursuant to writ of habeas corpus ad prosequendum "unless and until the first sovereign relinquishes jurisdiction over the prisoner”).
. In his summary action response, Rashid contends that the state judge issued an order *264on August 8, 2009, concerning prior custody credit. We note the order indicates that Rashid’s new "Motion for Jail Credit" was denied. See Docket Entry No. 22. Rashid's suggestion that the BOP failed to follow the order of the state sentencing court lacles merit because the BOP is not authorized to compute state sentences. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478887/ | OPINION OF THE COURT
PER CURIAM.
Michael Eugene Hodge, a federal prisoner formerly housed at the Federal Correctional Institution at Allenwood, Pennsylvania (“FCI-Allenwood”), appeals from *266the order of the United States District Court for the Middle District of Pennsylvania dismissing his complaint brought pursuant to Bivens1 and the Federal Tort Claims Act (“FTCA”),2 alleging sub-standard medical treatment of his advanced Hepatitis-C condition. Because we conclude that no substantial question is presented on appeal, we will summarily affirm. See LAR 27.4 and I.O.P. 10.6.
Within the first six months of his arrival at FCI-Allenwood in December 2004, Hodge’s hepatitis profile lab test, consultation with a liver specialist (Doctor Som-mers), and liver biopsy all confirmed that he has the Hepatitis-C virus (“HCV”), which was staged at that time as Grade IV, Stage IV, with cirrhosis of the liver. The clinic began administering interferon therapy to Hodge in October 2005. Hodge was seen routinely every four to six weeks during his treatment and sometimes more frequently on an as needed basis. From December 2005 through September 2006, Hodge’s interferon dosages were either decreased or stopped altogether for periods of time in order to allow his white blood cell count to increase. In October 2006, when it appeared that he was not responding to interferon treatment, the Defendants referred him to a liver specialist, Dr. Allen Wang, who recommended that Hodge stop the interferon therapy and start an FDA approved clinical experimental trial of a new anti-viral medication, along with a special diet consisting of three small meals and three snacks a day. Pursuant to the advice of the Regional Medical Consultant, inmate participation in experimental medication trials was not available through the BOP. Hodge was also denied a special diet.3 Thereafter, the Defendants discontinued interferon therapy but continued to monitor Hodge’s HCV condition until he was transferred to another facility on April 16, 2007.
Hodge filed his original complaint in 2006, followed by two amended complaints, the last of which was filed in February 2007. The District Court dismissed sua sponte, for lack of venue, claims arising out of Hodge’s medical care while he was in pre-trial detention. (See D. Ct. Op. (Aug. 31, 2007), at 7-10.) The District Court dismissed sua sponte for failure to state a claim, all claims against former United States Attorneys General Ashcroft and Gonzales, the Director of USMS, the Director, Regional Director, and National Administrator of the Bureau of Prisons (“BOP”), and the Warden at FCI Allen-wood, because the Second Amended Complaint (hereafter “Complaint”) lacked any allegation from which a factfinder could conclude that these Defendants were personally involved in Hodge’s medical care at FCI-Allenwood. (Id. at 11-13.) The District Court also dismissed Hodge’s Bivens claims against Defendant Inch, holding that the FTCA was the exclusive remedy for claims against her as a Public Health Service employee. (Id. at 10-11.)
That left the Bivens action against Doctors Vermiere, Okunday, Pigos and Brady, and Administrator Laino, and the FTCA *267action against the United States. Hodge alleged medical malpractice under the FTCA, violations under Bivens of his rights under the Equal Protection Clause and the Eighth Amendment, and a conspiracy among the Defendants to violate his constitutional rights. In addition to damages, he sought a transfer to another facility and an order compelling the BOP to treat his condition with “any and all FDA approved medications, use any effective dietary program and comply with effective AMA standards of care without budgetary restraints.”
The Defendants filed a joint motion to dismiss or, alternatively, for summary judgment to which Hodge responded. In separate Reports issued in September 2008, and January and March 2009, the Magistrate Judge recommended that Hodge’s motions be denied and that the Defendants’ motion to dismiss or for summary judgment be granted and the Complaint dismissed. By orders entered on October 27, 2008, and August 31, 2009, the District Court adopted the Magistrate Judge’s September 2008 and January 2009 Reports in full and the March 2009 Report in part, overruled Hodge’s objections, entered judgment in the Defendants’ favor, and dismissed the case. Hodge filed this timely appeal.4
We agree with the District Court’s dismissal of Hodge’s FTCA claim because he failed to file a certificate of merit (“COM”) required to state a medical negligence claim under the FTCA. (See D. Ct. Op. (Aug. 31, 2009), at 12-14.) In assessing a claim under the FTCA, we apply the law of the state in which the act or omission occurred. See Gould Elecs. Inc. v. United States, 220 F.3d 169, 179 (3d Cir.2000). Hodge had proffered photocopied pages from a chapter on HCV in a publication authored by Melissa Palmer, M.D., a national expert on chronic liver disease. Although he was given an opportunity to file a compliant COM, Hodge failed to do so. As the District Court correctly determined, absent any applicable exceptions to filing a COM under Pennsylvania law, Hodge’s FTCA claim failed as a matter of law. (Id. at 13-14.)
Turning to Hodge’s Bivens claims, we conclude that the District Court properly granted summary judgment for the Defendants. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2648, 91 L.Ed.2d 265 (1986). In order to prevail on his Eighth Amendment claim, Hodge must show that the Defendant healthcare providers were deliberately indifferent to his serious medical need. See Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Deliberate indifference requires a sufficiently culpable state of mind, such as “reckless[ ] disregard[ ]” to a substantial risk of serious harm to a prisoner. See Farmer v. Brennan, 511 U.S. 825, 834, 836, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).
We conclude that Hodge has not been deprived of medical care for his HCV at FCI-Allenwood. The medical record shows that Hodge was treated with interferon, his response to which was routinely monitored, and he was seen regularly at the clinic for complications as they arose. When the treatment failed, the prison approved his visit to Doctor Wang, a liver specialist, for consultation. (Magistrate Judge’s Report (Mar. 6, 2009), at 25-28.) Although Hodge maintains that the Defendants should have prescribed “Granulo-cyte-Colony stimulating factor” medication to treat his low white blood cell count while he continued on interferon therapy, there is no competent record evidence to *268support his claim. Notably, Doctor Wang did not recommend the medication. As for the prison’s decision not to follow Doctor Wang’s clinical drug trial and special diet recommendations, as the District Court correctly noted, disagreements between Hodge and his physicians, or among physicians, concerning the course of medical treatment for advanced HCV with cirrhosis do not support a claim for a violation of the Eighth Amendment. Monmouth County Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir.1987).5
The District Court also properly entered judgment in favor of the Defendants on Hodge’s claim of a conspiracy under Bivens. Hodge based his civil conspiracy claim upon the conclusory allegation, unsupported by any evidence, that two or more of the Defendants “reached an agreement to deprive him or her of a constitutional right under color of law.” Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 700 (3d Cir.1993). Without more, Hodge’s bare allegation of an agreement is insufficient for a reasonable juror to conclude that the Defendants engaged in a conspiracy to violate his constitutional rights. See Abbott v. Latshaw, 164 F.3d 141, 148 (3d Cir.1998).
As for his equal protection claim, we conclude that Hodge failed to identify any similarly situated inmate whose advanced stage HCV was treated differently by the BOP. See Chambers ex rel. Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 196 (3d Cir.2009) (stating that, to bring a successful equal protection claim, plaintiffs must prove, among other things, that “they received different treatment from that received by other individuals similarly situated”). Therefore, the District Court properly granted summary judgment on this claim.6
The District Court properly denied Hodge’s motion to amend his complaint as futile because the proposed amendment (adding the federal marshal who allegedly delayed service of the Complaint) did not go to the merits of Hodge’s claims under Bivens or the FTCA. (See D. Ct. Order (Oct. 27, 2008).) The District Court also properly denied Hodge’s motion for a government funded medical expert because the court lacked authority to grant the request. See Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir.1987) (finding no authority for court to pay for indigent plaintiff’s expert witnesses); (D. Ct. Op. at 8-12.) We discern no abuse of discretion in the denial of Hodge’s motion to compel. (Id. at 15-16.) Doctor Sommers did not work at FCI Allenwood and he was not named as a party to the action. Moreover, the Defendants disclosed most of the requested background information or the source for obtaining the information requested. (Report and Recommendation (Mar. 6, 2009), at 8-9.) As the District Court correctly noted, Hodge failed to ex*269plain how the Defendants’ educational backgrounds and prior work histories were relevant to his claims. We find no error in the District Court’s decision to deny Hodge’s motion to compel.
Accordingly, we will affirm the order of the District Court.
. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
. 28 U.S.C. §§ 1346 and 2680.
. It appears that Hodge requested a special diet at least twice. In April 2005, he was told that "[y]our present diagnosis does not warrant a diet program.” (See Defendants’ statement of undisputed facts, Exh. 1, attachment 1, at 249.) In May 2005, he was told that "we, by policy, have no special diet for hepatitis.” (Id. at 68.) In November 2005, Hodge requested a nutritional supplement, referred to as a "booster,” which Defendant Inch denied because Hodge’s weight had remained stable for one year and, thus, he did not meet the non-formulary requirements. (Id. at 55.)
. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
. Hodge's claims for injunctive relief were also properly dismissed. (D.Ct.Op.(Aug.31, 2009) at 18-21.) We express no opinion as to Hodge’s treatment in any federal prison facility in which he was (or is) housed.
. We agree with the District Court's conclusion and reasoning in dismissing Hodge’s monetary claims against the individual Defendants in their official capacities. (D. Ct. Op. at 17-18.) The District Court also properly dismissed the claims against Defendants Ashcroft, Gonzales, McDonough, Lappin, Hogsten, Dodrill and Watts pursuant to 28 U.S.C. § 1915(e)(2), and claims against Defendant Laino at summary judgment, because neither the allegations (as to the seven Defendants), taken as true, nor the undisputed facts (as to Laino), viewed in the light most favorable to Hodge, would lead to a reasonable inference that these Defendants were personally involved in Hodge’s care. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988). (D. Ct. Op. at 21-22). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478889/ | OPINION
PER CURIAM.
Noel Bango, a federal prisoner proceeding pro se, filed a petition for a writ of mandamus. For thé reasons stated below, we will deny the petition.
Bango seeks to have Chief Judge Sleet, who presided over Bango’s criminal matter, disqualified from presiding over any present or future civil or criminal proceedings involving him. Bango alleges that Chief Judge Sleet exhibited prejudice, bias, and partiality against him when he remanded Bango into custody and terminated his out-patient treatment. Bango believes that Chief Judge Sleet issued these rulings because Bango filed ineffective assistance of counsel motions against his court-appointed attorneys. Bango also alleges that, because he filed grievances against the prisons where he was housed and threatened to sue for “medical neglect, physical abuse, and [lockdown],” Chief Judge Sleet retaliated against him and sentenced him to 21 months’ incarceration.1
The writ of mandamus is an extreme remedy that is granted only when there is no other remedy available to the petitioner and the petitioner’s right to mandamus relief is clear and indisputable. Kerr v. United States Dist. Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); In re Pasquariello, 16 F.3d 525, 529 (3d Cir.1994). Mandamus may not be used as a substitute for the regular appeals process. See In re Briscoe, 448 F.3d 201, 212 (3d Cir.2006).
Litigants seeking to disqualify a judge may file a motion pursuant to 28 U.S.C. § 455 or 28 U.S.C. § 144.2 However, claims of actual judicial bias pursuant to § 144 are not appropriate for mandamus. Green v. Murphy, 259 F.2d 591, 594 (3d Cir.1958) (en banc). Claims under 28 U.S.C. § 455(a) may be brought via mandamus. See Alexander v. Primerica Holdings, 10 F.3d 155, 163 (3d Cir.1993). “[J]udicial rulings alone almost never constitute a valid basis for a bias or impartiality motion.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).
To the extent that Bango’s claim falls under § 455, he has not shown that he is entitled to relief. Bango’s petition rests on his disagreement with Chief Judge Sleet’s rulings, and without more, he cannot show bias or impartiality. Moreover, nothing in the Bango’s filing indicates that the Chief Judge is biased against him. Accordingly, mandamus relief is not appropriate. In addition, we will deny Bango’s requests to (1) file his motion pursuant to 28 U.S.C. § 2255 in another federal district; (2) compel the District Court to rein*274state his out-patient treatment; and (3) issue any further declaratory relief.
. Bango's appeal from his conviction and sentence is currently pending before this Court. (C.A. No. 09-3863).
. Based on our review of the District Court's docket, it does not appear that Bango filed a motion seeking to disqualify Chief Judge Sleet pursuant to 28 U.S.C. § 455 or 28 U.S.C. § 144. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478891/ | *281
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Michelle Hetzel appeals the order of the District Court denying her petition for a writ of habeas corpus. Because we write only for the benefit of the parties, we assume familiarity with the facts of this case and its procedural history. We will affirm.
I.
On June 15, 2000, the body of nineteen-year-old Devon Guzman was found in her car in Northampton County, Pennsylvania. She died as a result of a four-inch cut in her throat. Immediately after Guzman’s body was found, the local newspapers, The Express-Times and The Morning Call, began publishing articles about her death. On July 29, 2000, The Express-Times reported that Brandon Bloss, Hetzel’s husband at the time, was a suspect in Guzman’s murder. After Hetzel and Bloss were charged in August of 2000 with first degree murder in connection with Guzman’s death, the articles began to focus on the criminal investigation, the legal proceedings, and the connections among Het-zel, Bloss, and Guzman. The newspapers reported that Guzman was involved in two lesbian relationships: one with Keary Ren-ner, with whom she lived, and another with Hetzel. Thus they began referring to the case as involving a “lesbian love triangle.” The record reflects that between the day Guzman’s body was discovered on June 15, 2000, and the day Hetzel and Bloss’s jury was chosen on September 24, 2001, the newspapers published approximately seventy-two articles about the case.
Hetzel and Bloss were charged with first degree murder and conspiracy to commit murder in the Court of Common Pleas of Northampton County, Pennsylvania. Before the trial and during voir dire, Hetzel moved for a change of venue, arguing that a fair and impartial jury could not be selected in Northampton County. The trial court denied those motions. Jury selection for the trial began on September 11, 2001, but the Court declared a mistrial after the terrorist attacks of that day. Shortly thereafter, a second trial commenced. Hetzel and Bloss were tried jointly, and the jury convicted them on the first degree murder charge and acquitted them of the conspiracy to commit murder charge. They were both sentenced to life imprisonment.
Hetzel appealed her conviction and sentence to the Pennsylvania Superior Court, including among her arguments the claim that the Court of Common Pleas erred by denying her motions for a change of venue. The Superior Court addressed the change of venue claim on the merits and affirmed. The Pennsylvania Supreme Court declined to hear an appeal of the Superior Court decision. After the Pennsylvania Superior Court denied Hetzel’s petition for relief under the Post Conviction Relief Act and the Pennsylvania Supreme Court denied her petition for an appeal of that decision, Hetzel filed a timely petition for a writ of habeas corpus in the United States District Court for Eastern District of Pennsylvania.
The petition included four claims for relief, including Hetzel’s claim that the state trial court’s denials of her motions for a change of venue violated her due process rights under the Fifth and Fourteenth Amendments. The Magistrate Judge filed a Report and Recommendation, recommending that the petition be denied without an evidentiary hearing and that the District Court decline to issue a certificate of appealability on any of her claims. The District Court adopted the Report and Recommendation in part and denied the petition without an evidentiary *282hearing but issued a certificate of appeala-bility on the change of venue claim. Het-zel filed a timely appeal.
II.
The issue presented in this appeal was adjudicated on the merits by the Superior Court of Pennsylvania. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2241, et seq., we must affirm the denial of the writ of habe-as corpus unless the state adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); Vazquez v. Wilson, 550 F.3d 270, 276 (3d Cir.2008). Because Hetzel does not argue that the standard used by the Superior Court was “contrary to” clearly established federal law, we focus only on whether the decision “involved an unreasonable application of[ ] clearly established Federal law.” 28 U.S.C. § 2254(d)(1). The Supreme Court has recognized that “unreasonable” is “difficult to define,” but has held that an “unreasonable application of federal law is different from an incorrect or erroneous application of federal law.” Williams v. Taylor, 529 U.S. 362, 410-12, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (emphases in original). Instead, we look to whether the “state court’s application of clearly established law is objectively unreasonable.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). In making this determination, we presume that the state court’s factual findings are correct. 28 U.S.C. § 2254(e)(1). An applicant may rebut that presumption by clear and convincing evidence. Id.
In determining whether § 2254(d) prohibits granting the writ, the Court first must determine the applicable “clearly established Federal law, as determined by the Supreme Court of the United States.” See Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (quoting § 2254(d)(1)). “Clearly established Federal law” is the “governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Id. We then determine whether the state court’s application of this clearly established law to the facts of this case was unreasonable.
III.
“[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). “[Jjurors need not, however, be totally ignorant of the facts and issues involved.” Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). In cases involving intense pretrial publicity, the Supreme Court has held that a change of venue is constitutionally required in certain cases because “adverse pretrial publicity can create such a presumption of prejudice in a community that the jurors’ claims that they can be impartial should not be believed.” Patton v. Yount, 467 U.S. 1025, 1031, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984); see Irvin, 366 U.S. at 722-23, 81 S.Ct. 1639. Yet, we will presume prejudice only in the rare case where the “media or other community reaction to a crime or a defendant engenders an atmosphere so hostile and pervasive as to preclude a rational trial process.” Rock v. Zimmerman, 959 F.2d 1237, 1252 (3d Cir.1992) (en banc), abrogated on other grounds by Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); see also Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). Supreme Court prec*283edent instructs that, when evaluating whether the pretrial publicity violated the defendant’s right to an impartial jury, we are to consider the content, quantity, and timing of the publicity. See Murphy, 421 U.S. at 798-803, 95 S.Ct. 2031; Rideau v. Louisiana, 373 U.S. 723, 724-26, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Irvin, 366 U.S. at 724-28, 81 S.Ct. 1639. We may also look to the record of voir dire to examine the effect of the publicity on the venire. See, e.g., Patton, 467 U.S. at 1033-35, 104 S.Ct. 2885; Irvin, 366 U.S. at 726-27, 81 S.Ct. 1639; Flamer v. Delaware, 68 F.3d 736, 754-55 (3d Cir.1995).
In denying Hetzel’s change of venue claim, the Pennsylvania Superior Court applied the following standard:
Pre-trial publicity will be presumed to have been prejudicial if the defendant is able to prove that the publicity was sensational, inflammatory, and slanted toward conviction, rather than factual and objective; that such publicity revealed the defendant’s prior criminal record, if any, or referred to confessions, admissions, or reenactments of the crime by the defendant; or that it was derived from official police and prosecutorial reports. Even if the defendant proves the existence of one or more of these circumstances, a change of venue or venire is not warranted unless he or she also shows that the pre-trial publicity was so extensive, sustained, and pervasive that the community must be deemed to have been saturated with it, and that there was insufficient time between the publicity and the trial for any prejudice to have dissipated.
Commonwealth v. Hetzel, 822 A.2d 747, 764 (Pa.Super.Ct.2003) (quoting Commonwealth v. Karenbauer, 552 Pa. 420, 715 A.2d 1086, 1092 (1998)). This standard is consistent with clearly established federal law, and Hetzel does not argue otherwise.
Next, we must determine “whether the state court’s application of clearly established law [was] objectively unreasonable.” Bell, 535 U.S. at 694, 122 S.Ct. 1843. We ask whether “the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under” relevant Supreme Court precedent. Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir.2000).
After setting forth the standard for a motion for a change of venue under Pennsylvania law, the Superior Court evaluated Hetzel’s claim as follows:
As a result of counsel’s request for a change of venue, the trial judge reviewed the media accounts of the case and considered Hetzel’s claim of prejudice. The court denied the motion because it concluded that the published reports, though voluminous, were not “sensational, inflammatory nor slanted toward conviction, but [were] factual and objectively reported.” Nonetheless, the court indicated that it would revisit the issue if it became “evident during jury voir dire that the ability ... to empanel a fair and impartial jury has been compromised by the pretrial publicity.”
Thereafter, jury selection in the case was thorough and careful. The court dismissed for cause all jurors who hinted at having a fixed opinion in the case or who believed they were unable to be fair or impartial. While the majority of the jurors chosen to serve had some knowledge of the case through the media, none reported that the exposure prompted a fixed opinion and all stated that they would decide the matter consistent with the court’s instructions and based on the evidence presented at trial.
In light of the conscientious and methodical manner in which the court presided over jury selection in this case, as well as our limited scope of review, we *284cannot find that there was an abuse of discretion in refusing to grant the change of venue. The record simply does not reveal an extensive, sustained, or pervasive effect from the media coverage in this case.
Hetzel, 822 A.2d at 764-65 (citations omitted).
We find no error in this analysis. A review of the newspaper articles in the record establish that they are, as the trial court found, largely “factual and objectively reported.” Id. at 764 (quoting the trial court’s opinion). The articles focus on Guzman’s death, the police investigation, the arrest of Hetzel and Bloss, and the court proceedings before the trial. Many of the articles do refer to the “lesbian love triangle,” but these articles do not report that Hetzel confessed to the crime or call for Hetzel’s conviction. Nor was there any coverage of any past criminal acts or misdeeds by Hetzel, other than her adulterous affair. Although Hetzel claims that the newspapers published letters to the editor calling for her conviction and the death penalty, only two of the letters to the editor in the record — penned by the same woman — call for conviction and the death penalty. Additionally, in one of the letters, the writer identifies Guzman as her niece. Therefore, Hetzel has not rebutted the presumption that the trial court correctly found that the articles were primarily factual in nature and “no[t] slanted toward conviction.” Id. (refusing to disturb the trial court’s findings).
Although Hetzel compares her case to Rideau, the content of the newspaper coverage here is distinct from the publicity there. Rideau involved the dissemination of a film showing Rideau confessing to the crime with which he was charged. 373 U.S. at 724-27, 83 S.Ct. 1417. Obviously, watching the defendant confess to a crime is likely to have the effect of persuading community members that the defendant is, in fact, guilty of committing the crime. Here, the articles were much less likely to have the effect of convincing potential jurors of Hetzel’s guilt than the film of a confession at issue in Rideau. The content of the coverage is also distinguishable from that in Irvin, in which the press repeatedly reported that Irvin had confessed to the crime, reported on his prior criminal convictions, and claimed he had offered to plead guilty to the crime he was charged with committing. 366 U.S. at 725-726, 81 S.Ct. 1639.
Additionally, there was a significant passage of time between the height of the media coverage in the summer of 2000 and the trial in September 2001. “That time soothes and erases is a perfectly natural phenomenon, familiar to all.” Patton, 467 U.S. at 1034, 104 S.Ct. 2885; see Murphy, 421 U.S. at 802, 95 S.Ct. 2031. In Patton, the Supreme Court explained that, although potential jurors may remember the crime, “[i]t is not unusual that one’s recollection of the fact that a notorious crime was committed lingers long after the feelings of revulsion that create prejudice have passed.” 467 U.S. at 1035, 104 S.Ct. 2885. Here, the intensity of the coverage diminished between the discovery of Guzman’s body and the trial. On appeal, Hetzel claims that seventy-two articles appeared in the local newspapers before her trial but informs us that twenty-four of these articles were published after January 1, 2001. Thus, the jurors were at most exposed to approximately three articles a month for the nine months preceding the trial. The passage of time and the sporadic nature of the coverage in the months proceeding the trial suggest that any prejudice that may have been presumed around the time of Guzman’s death and Hetzel’s arrest may have dissipated by the next year.
*285The record of voir dire also suggests that the publicity surrounding the case did not deprive Hetzel of her right to an impartial jury. During voir dire, slightly more than two-thirds of the seventy-five-person venire admitted that they had heard, seen, or read news coverage of the case. Yet, only two of these jurors stated that they had a fixed opinion about the guilt of the defendants, and both were stricken for cause. Five other jurors answered that they could not give the defendants or the Commonwealth a fair and impartial trial. The percentage of jurors who stated that they had a fixed opinion about the guilt of the defendants here (approximately 3%) is much lower than that in Murphy (26%) and Patton (77%), cases in which the Supreme Court rejected claims of prejudice. See Murphy, 421 U.S. at 803, 95 S.Ct. 2031; Patton, 467 U.S. at 1029, 104 S.Ct. 2885. Thus, the pretrial publicity did not have the effect of convincing the community of Hetzel’s guilt.
Finally, Hetzel argues that the publicity focused on the lesbian relationships “in- and-of themselves created a hostile environment which precluded a rational trial process.” Appellant’s Br. at 28. However, Hetzel offers only speculation, and no evidence, to support the theory that knowledge of the lesbian relationship affected the impartiality of the jurors. She also recognizes that any jury, regardless of the venue, would have heard about her lesbian relationship with Guzman during the trial. Furthermore, Hetzel’s attorney asked the venire whether they could remain impartial and judge Hetzel fairly even though she was bisexual. No one responded that they could not. There is simply no reason to presume prejudice on this record.
Hetzel has not established that the Superior Court’s decision that the media coverage was not so “extensive, sustained, or pervasive,” Hetzel, 822 A.2d at 764, so as to require a change of venue for her trial was an objectively unreasonable application of federal law. Therefore, we must affirm the District Court’s order denying the writ of habeas corpus.
IV.
For these reasons, the judgment of the District Court will be affirmed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478894/ | OPINION
PER CURIAM.
Petitioner Artur Chmielewski, a native and citizen of Poland and a gay man, entered the United States in March of 2003 without being admitted or paroled. He is removable under Immigration & Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). Chmielewski filed a timely application for asylum under INA § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18, claiming that he was persecuted in Poland on the basis of his sexual orientation. Chmielewski most recently was employed in Poland as a bartender. Both in his application and testimony, he asserted that he had many times been the victim of hate crimes; he described numerous attacks and beatings which he believed were motivated by anti-gay bias, and serious injuries he sustained as a result. He also submitted medical documentation and articles published by human rights groups describing attacks on gay men outside of gay bars and clubs in Poland. A November of 2006 Amnesty International Report on Poland, for example, noted that the Law and Justice Party (“PiS”) came to power in September of 2005, and, after that, homophobic statements by public officials increased dramatically. A.R. 406. Judicial authorities declined to prosecute on the ground that the homophobic statements were not “threatening or encouraging to crime.” Id.
The 2005 Country Report on Human Rights Practices in Poland noted that gay rights activists engaged in a peaceful demonstration were attacked reportedly by members of the All Poland Youth League, who threw eggs and rocks, and made verbal threats that were both homophobic and anti-Semitic. A.R. 448. Sixty-eight of the gay rights activists were arrested and interrogated before being released. The violent counter-demonstrators were only asked for identification. See id.
The government responded by submitting articles of its own, which discussed the successes of the gay rights movement in Poland since the fall of the communist government. One article noted Warsaw’s “lively gay tradition” dating back to the eighteenth century, A.R. 459, and a July of 2005 article from the Travel section of Gay Times, Great Britain’s well-known adult gay male magazine, gave Poland, a member of the European Union, 3]é “pink stars,” out of a possible 5, for being tolerant and even accepting, A.R. 466. See also A.R. 468-69 (explaining the “pink star” system and noting that the extra half-star indicates that there is a surprising level of tolerance and freedom despite the lack of positive legal protection).
Following a merits hearing on January 24, 2008, at which Chmielewski was represented by current counsel, Daniel Sansoni, Esquire, the Immigration Judge (“IJ”) denied relief. In a 39-page oral decision, the IJ concluded that there was a lack of credible evidence to support Chmielewski’s claim that the injuries he sustained were as a result of his sexual orientation. The IJ concluded that Chmielewski’s evidence did not support a nexus between his injuries and his sexual orientation, and his country evidence supported a conclusion that there was discrimination in Poland on *311the basis of sexual orientation but not persecution. The IJ also faulted Chmielewski for not providing letters from family and friends or more specific medical documentation in support of his application, which she concluded might have helped him credibly establish his claim.
Mr. Sansoni filed a Notice of Appeal, Form EOIR-26, with the Board of Immigration Appeals. In the space provided for listing the reasons for the appeal, he stated:
The Respondent was not given a just hearing since prejudicial documents were submitted to the Court. By information and belief, it is believed that the Office of Chief Counsel believed respondent’s asylum was frivolous. Respondent indicated that his application was never frivolous. The OCC offered no documentation suggesting frivolous application. However, they offered documentation stating the case was under investigation. Going to the merits of the case, the immigration judge improperly denied a grant of asylum despite the facts and law clearly in the benefit of the respondent.
A.R. 78.
After the question, “Do you intend to file a separate written brief or statement after filing this Notice of Appeal,” Sansoni marked ‘Tes.” A.R. 78. The following “WARNING” was listed under that question: “If you mark ‘Yes’ in item # 8, you will be expected to file a written brief or statement after you receive a briefing schedule from the Board. The Board may summarily dismiss your appeal if you do not file a brief or statement within the time set in the briefing schedule.” A.R. 78. The Board then issued a briefing schedule, which set a deadline for filing the separate written brief or statement. The briefing schedule notice again warned that, if it was indicated on Form EOIR-26 that a separate written brief or statement would be filed, it was “expected.” A.R. 72. Failure to file might result in summary dismissal pursuant to 8 C.F.R. § 1003.1(d)(2)(i)(E). See id.
Chmielewski retained someone new to file his brief. That individual, Reverend Robert Vitaglione, did not follow through. In its March 17, 2009 decision, the Board summarily dismissed Chmielewski’s appeal pursuant to 8 C.F.R. § 1003.1(d)(2)(i)(E), because he failed to file a separate written brief or statement after indicating on the Notice of Appeal that one would be filed. Chmielewski filed a timely pro se petition for review of this decision, resulting in the appeal docketed at C.A. No. 09-2087. He also retained Stephen S. Santo, Esquire, to file a motion for reconsideration with the Board. On April 20, 2009, Santo filed that motion, and in it he contended that the Board should not have summarily dismissed Chmielewski’s appeal. Citing Bhiski v. Ashcroft, 373 F.3d 363, 367-68 (3d Cir.2004), he contended, among other things, that a brief is optional rather than mandatory. A.R. 14. Moreover, Chmie-lewski’s case was not complex and his statement put the Board on notice of what was at issue in his case. See id. at 15-16. The government filed written opposition to the motion to reconsider.
In a decision dated June 24, 2009, the Board denied Chmielewski’s motion to reconsider as untimely because it was not filed within 30 days. Chmielewski’s original attorney, Mr. Sansoni, returned to the case and filed a timely petition for review of that decision, resulting in the appeal docketed at C.A. No. 09-3077. Our Clerk consolidated the petitions for review. We previously denied Chmielewski’s motion for a stay of removal and the government’s motion for summary affirmance in C.A. No. 09-3077.
*312We will deny the consolidated petitions for review. We have jurisdiction to review both final orders of removal under 8 U.S.C. § 1252(a)(1), (b)(1). Chmielewski raises three contentions on appeal: (1) the IJ’s adverse credibility determination is not supported by substantial evidence, where the IJ was consistently misled by the government concerning an unrelated pending government investigation into frivolous asylum applications, and where the IJ incorrectly weighed his testimony and incorrectly determined that Poland does not persecute homosexuals; (2) the Board improperly summarily dismissed his appeal for failure to file a brief; and (3) the Board abused its discretion in denying his motion for reconsideration. Chmielew-ski asserts the failure to file a separate written brief or statement was not his fault, and the motion for reconsideration should not have been denied as untimely because the government did not raise the timeliness issue. See Petitioner’s Brief, at 9-10. Chmielewski seeks reinstatement of his appeal to the Board, or, in the alternative, he asks that we review his claim for asylum.
The government counters that the Board acted within its discretion when it summarily dismissed Chmielewski’s appeal because he did in fact fail to submit a separate written brief or statement after checking the box on the Notice of Appeal that indicated he intended to file one. Moreover, the Board did not abuse its discretion in denying the motion for reconsideration because it was in fact untimely filed by four days.
We will deny the petition for review docketed at C.A. No. 09-3077. Under 8 C.F.R. § 1003.2(b)(2), a motion to reconsider must be filed within 30 days after the date of the Board’s decision. See also 8 U.S.C. § 1229a(c)(6)(B). Chmielewski’s motion to reconsider was received on April 20, 2009, which was more than 30 days after the Board’s March 17, 2009 decision. Review of the Board’s denial of a motion to reopen or motion for reconsideration is for abuse of discretion only. See Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). See also Immigration & Naturalization Serv. v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). “Discretionary decisions of the [Board] will not be disturbed unless they are found to be arbitrary, irrational, or contrary to law.” Tipu v. Immigration & Naturalization Serv., 20 F.3d 580, 582 (3d Cir.1994) (internal quotations and citation removed). The Board’s timeliness determination pursuant to 8 C.F.R. § 1003.2(b)(2) was not arbitrary, irrational, or contrary to law.
Although an alien may file either a motion for reconsideration or a motion to reopen when challenging counsel’s performance, Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and, construed as a motion to reopen, Chmielewski’s April 20, 2009 submission would have been timely filed, see 8 C.F.R. § 1003.2(c)(2) (“a party may file only one motion to reopen ... (whether before the Board or the Immigration Judge) and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered”), we do not fault the Board for not giving Chmielewski the benefit of the doubt with respect to how he styled his motion. Mr. Santo, in that untimely motion to reconsider, stated only that, after proceedings in Immigration Court came to an end, Chmielewski “attempted to change counsel/representation and it is unclear as to whether [his] then new appeal counsel submitted both an EOIR-27 representation form and/or brief to the BIA.” A.R. 13. Mr. Santo did not argue ineffective assistance of counsel to the Board in the motion to reconsider. Nor did Chmielew-ski comply with the procedural require*313ments for making such a claim.1 The Board would not have realized from the motion to reconsider that Reverend Vita-glione performed deficiently by failing to file a separate written brief or statement, as Chmielewski now asserts, see Petitioner’s Brief, at 11-12.
Accordingly, the Board did not abuse its discretion in treating Chmielewski’s motion as one for reconsideration only and denying it as untimely. Chmielewski also contends that the government opposed the motion to reconsider not on the basis of untimeliness but by arguing that Bhiski, 373 F.3d 363, could be distinguished. Because Chmielewski cites no authority for his assertion that the Board lacks authority to dismiss a motion to reconsider on the basis of untimeliness if the government opposes the motion on some other ground, we find no abuse of discretion in this regard either. The government did not affirmatively waive the timeliness objection or join in Chmielewski’s motion. Cf. 8 C.F.R. § 1003.2(c)(3)(iii) (addressing jointly filed motions to reopen).
We turn then to the petition for review docketed at C.A. No. 09-2087, which we will also deny. The regulation provides that: “A single Board member or panel may summarily dismiss any appeal or portion of any appeal in any case in which: * * * (E) The party concerned indicates on Form EOIR-26 or Form EOIR-29 that he or she will file a brief or statement in support of the appeal and, thereafter, does not file such brief or statement, or reasonably explain his or her failure to do so, within the time set for filing.” 8 C.F.R. § 1003.1(d)(2)(i)(E). Chmielewski was warned in both Form EOIR-26 and the Board’s briefing schedule Notice that summary dismissal was a possibility in the circumstance where the box indicating that a separate written brief or statement will be filed is checked and no separate written brief or statement is filed. Because Chmielewski does not challenge the regulation on due process grounds, we review the Board’s application of it in his case for abuse of discretion. See Singh v. Gonzales, 416 F.3d 1006, 1009 (9th Cir.2005); Rioja v. Ashcroft, 317 F.3d 514, 515 (5th Cir.2003).
In support of its decision, the Board, citing 8 C.F.R. § 1003.1(d)(2)(i)(E), noted that: (1) Chmielewski checked the box on the Notice to Appeal stating that he would file a separate written brief or statement; (2) he had until April 28, 2008 to submit a separate written brief or statement in support of his appeal; (3) the record did not contain a separate written brief or statement; and (4) Chmielewski failed to offer an explanation for his failure to timely submit the promised separate written brief or statement. In his brief, Chmielewski contends that it was not his fault that no separate written brief or statement was filed on appeal to the Board, but he did not comply with the Lozada procedural requirements or file a timely motion to reconsider or motion to reopen with the Board alleging deficient performance by counsel or a representative. Moreover, the loss of continuity in his case appears to have been caused by the decision to retain different counsel/representation after the *314proceedings in Immigration Court came to an end.
Chmielewski next contends that his case is not complex and his Notice of Appeal, Form EOIR-26, put the Board on notice of what was at issue in his case. See Petitioner’s Brief, at 15-16. Having reviewed the record, we conclude that the Notice of Appeal, Form EOIR-26, does not adequately apprise the Board of the bases for the appeal. According to his Notice of Appeal, Chmielewski sought to raise a due process claim of an unfair hearing and a claim challenging the IJ’s weighing of the testimony and determination that the government of Poland does not persecute on the basis of sexual orientation or acquiesce in persecution by private actors.
With respect to the claim of an unfair hearing, Chmielewski did not identify the prejudicial documents referred to in the Notice of Appeal, which the government allegedly sought to introduce, nor did he identify with any specificity what aspects of his merits hearing were unfair. The basis of this contention of an unfair hearing is not at all apparent from the administrative record. The government sought a continuance early in the proceedings due to an unspecified “pending investigation,” A.R. 568, but that motion alone was insufficient to render the hearing unfair. Moreover, the IJ was thorough in her review of Chmielewski’s evidence, and she issued a comprehensive, reasonable decision, which discussed the evidence and the relevant legal issues. With respect to the merits of his application for asylum, Chmielewski did not identify in his Notice of Appeal the specific facts or law that should have resulted in a reversal of the Immigration Judge. Nor did he remedy either of the deficiencies we have noted in his motion to reconsider. We thus conclude that the Board acted within its discretion in summarily dismissing Chmielewski’s appeal where he failed to submit a separate written brief or statement as he indicated he would and the Notice of Appeal failed to apprise the Board adequately of the bases for his appeal. See Rioja, 317 F.3d at 515.2
Chmielewski contends that, under Bhiski, 373 F.3d 363, a brief is optional rather than mandatory, but the Board’s summary dismissal procedure only applies where the alien checks the box indicating that he intends to file a separate written brief or statement and then does not follow through. In Bhiski, we considered whether the alien properly exhausted his administrative remedies where he did not file a separate written brief or statement. We held that the alien exhausted his administrative remedies by stating his issue adequately in his Notice to Appeal, and we therefore did not lack jurisdiction over the petition for review. 373 F.3d at 367. Bhi-ski thus concerned the adequacy of an alien’s efforts to exhaust his administrative remedies and our jurisdiction over his petition for review, see id. at 368. It did not concern the Board’s discretion to summarily dismiss an appeal on procedural grounds, and thus is inapposite.
For the foregoing reasons, we will deny the consolidated petitions for review.
. The Board requires that a timely motion to reconsider or reopen based upon a claim of ineffective assistance of counsel should be supported by an affidavit that sets forth the agreement that was entered into with former counsel with respect to the actions to be taken, and former counsel must be informed of the allegations and allowed the opportunity to respond. Matter of Lozada, 19 I. & N. Dec. at 638. The alien must also file a complaint with the bar, but this is not an absolute requirement under Lu v. Ashcroft, 259 F.3d 127, 134 (3d Cir.2001).
. In addition, we are not empowered to conduct the de novo inquiry Chmielewski seeks. See, e.g., Gonzales v. Thomas, 547 U.S. 183, 186, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006) (per curiam). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478896/ | OPINION
PER CURIAM.
Aurora Lopez, a citizen of Guatemala, petitions for review of a Board of Immigration Appeals (“BIA”) order denying her application for cancellation of removal. The Government has filed a motion to dismiss thé petition for lack of jurisdiction.
I
Lopez was charged as removable and appeared before the Immigration Judge (“IJ”) in 2007. She admitted to three of the four charges against her and conceded removability, but sought cancellation of removal under INA § 240A(b), 8 U.S.C. § 1229b(b) (2006). As grounds for relief, Lopez testified that her removal to Guatemala would create an exceptional and extremely unusual hardship on her son, Onar, an American citizen who was 20 years old at the time of the removal hearing.
The IJ denied relief, reasoning that, although Lopez satisfied the other requirements for cancellation of removal, she failed to demonstrate that her removal would impose an exceptional and extremely unusual hardship on her son. The BIA agreed and dismissed Lopez’s appeal. Lopez then filed a petition for review, which prompted the Government’s motion to dismiss.
II
Pursuant to the REAL ID Act of 2005, courts lack jurisdiction to review the denial of discretionary relief, including cancellation of removal. See 8 U.S.C. § 1252(a)(2)(B). Whether the United States citizen child of an alien will suffer “exceptional and extremely unusual hardship,” as required for cancellation of removal, is precisely such a discretionary determination. See INA § 240A(b)(1)(D); Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir.2003). Accordingly, we lack jurisdiction to review the Agency’s decision that Lopez failed to demonstrate exceptional and extremely unusual hardship.
Nevertheless, we retain jurisdiction to review constitutional claims and questions of law raised in a petition for review. See § 1252(a)(2)(D). In her counseled petition for review, Lopez raises three arguments to avoid the jurisdictional bar. The Government counters that we lack jurisdiction because Lopez’s purported questions of law are not colorable and she instead essentially takes issue with the IJ’s and BIA’s exercise of discretion. For the reasons discussed below, we agree with the Government and will dismiss the petition for review on that basis.
First, Lopez contends that the IJ misapplied the standard for determining whether she demonstrated an exceptional and extremely unusual hardship. In making that determination, an IJ must consider hardship factors in the aggregate. See Matter of Monreal-Aguinaga, 23 I. & N. Dec. 56, 63-64 (BIA 2001) (discussing the factors the Agency should consider in assessing an exceptional and extremely unusual hardship). Lopez contends that the IJ failed to consider the aggregate factors in her case, but instead focused on the fact that Onar’s father, who lives near him in New Jersey, could provide him with support. Lopez’s argument lacks merit. Both the IJ and BIA expressly considered a range of factors — including Onar’s age, education, ability to work, and support *317from other relatives, including his father, who lived nearby — in determining that the requisite hardship had not been demonstrated.
Second, Lopez argues that, in denying relief, the BIA improperly considered that her son “aged out” during the pendency of her appeal, as he turned 21 during that time. Her argument is vague and somewhat confusing, as she seems to use “aged out” in an inapt context. At most, we can read her use of the term “aged out” to suggest that the Board wrongly determined that her son was not a qualifying relative because cancellation applications may not be based on hardship to United States citizen children aged 21 or older. See 8 U.S.C. § 1101(b)(1) (defining a child as an unmarried person under 21 for purposes of the INA); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144-45 (9th Cir.2002) (holding that a person 21 years of age or older is not a “child,” for purposes of cancellation of removal). In its opinion, the BIA simply noted that Onar “was 20 years of age at the time of the hearing below and turned 21 during the course of this appeal.” A.R. 2. We agree with the Government that this passing reference to Onar’s age provides no basis to conclude that the Board denied relief on that basis.
Finally, Lopez argues that the BIA violated her constitutional right to due process by failing to adhere to Board precedent, instead “interpret[ing] the law in any willy nilly way it wants.” Brief for the Petitioner, 6. However, Lopez fails to provide any useful elaboration on this claim. See id. at 5-6. In concluding that Lopez failed to demonstrate an exceptional or extremely unusual hardship, the BIA cited two precedential opinions — Matter of Monreal-Aguinaga, and Matter of Andazola-Rivas, 23 I. & N. Dec. 319 (BIA 2002)— both of which discuss the standard for demonstrating such a hardship. There is plainly nothing improper about the Board’s reliance on these cases, and nothing in the record supports Lopez’s vague contention that the BIA ran afoul of the legal standards set forth in those cases — or any other controlling law — in denying her request for cancellation of removal.
Accordingly, we will dismiss the petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478898/ | OPINION
PER CURIAM.
Fang Rong Zheng petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of her motion to reopen deportation proceedings and file a successive asylum application. For the reasons that follow, we will deny the petition.
I.
Fang Rong Zheng is a 32-year-old citizen of China, who entered the United States without being admitted or paroled in March 2001. In March 2002, the Immigration and Naturalization Service filed a Notice to Appear and placed Zheng in removal proceedings. Zheng conceded re-movability and applied for asylum, withholding of removal, and relief under the Convention Against Torture. In support of her application, she argued that because of the birth of her child in the United States, in violation of China’s family planning policy prohibiting pregnancy out of wedlock, she feared that she would be forced to have an abortion and undergo sterilization if she became pregnant again upon returning to China.
In March 2004, after a hearing on the merits, the Immigration Judge (“IJ”) denied Zheng’s application. Finding discrepancies and omissions between Zheng’s asylum application and her testimony, the IJ ultimately concluded that Zheng was not credible. Zheng appealed the IJ’s decision and, on July 21, 2005, the BIA affirmed the IJ’s decision. Zheng did not file a petition for review of the BIA’s decision with this Court.
Over seventeen months later, on January 11, 2007, Zheng filed with the BIA a motion to reopen and to file a successive asylum application. She asserted that her motion was exempt from the ninety-day time restriction governing motions to reopen because her motion was based on the “changed circumstances” exception in INA § 208(a)(2)(D). Alternately, she requested that the BIA reopen her case sua sponte *324under the discretion granted to it under 8 C.F.R. § 1003.2(a). Specifically, Zheng contended that if she returned to China, she would be subject to sterilization under China’s one-child policy because she had given birth to a second child since her removal hearing.
The BIA denied her motion to reopen based on its determinations that her motion was untimely and that the evidence she submitted — namely the birth of her second child — did not reflect changed circumstances in China or exceptional circumstances such that reopening was warranted. The BIA also concluded that the evidence Zheng submitted did not reflect changed circumstances in China to warrant exercising jurisdiction to consider her successive asylum application. Zheng timely petitioned this Court to review the BIA’s decision.
II.
We have jurisdiction over the petition for review pursuant to 8 U.S.C. § 1252. We review the BIA’s findings of fact for substantial evidence and the denial of the motion to reopen for abuse of discretion.1 See Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d Cir.2002). The BIA’s decision is entitled to “broad deference.” Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003). Thus, in order to succeed on the petition for review, Zheng must show that the BIA’s discretionary decision was arbitrary, irrational, or contrary to law. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994) (quotation omitted). Zheng has failed to make such a showing.
III.
The BIA denied the motion to reopen because it was untimely and because Zheng did not meet the exception for changed circumstances under 8 C.F.R. § 1003.2(c) or exceptional circumstances under 8 C.F.R. § 1003.2(a). The motion was undisputably untimely as it was filed over seventeen months after the BIA denied Zheng’s appeal. See 8 C.F.R § 1003.2(c)(2) (motions to reopen must be filed within 90 days of a final order). Zheng did not contest the tardiness of her motion; instead she asserted that it fell within the exception of 8 C.F.R. § 1003.2(c)(3)(ii), which permits reopening “based on changed circumstances arising in the country of nationality ... if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.”
In support of reopening, Zheng submitted (1) an affidavit; (2) evidence of her two children’s births in 2001 and 2006; (3) a 2005 Country Report for China; (4) Fuzhou City regulations on family planning, dated April 1996; (5) 2004 testimony of Assistant Secretary of the State Department; and (6) an April 2006 New York Times article discussing individuals who were returned to China and forcibly sterilized. (See A.R. 9-206.) The BIA found that her evidence — namely the birth of her two children in the United States — did not constitute “changed circumstances arising in the country of nationality” as required by 8 U.S.C. § 1229a(c)(7)(C)(ii) and 8 C.F.R. § 1003.2(c)(3)(ii) to waive the ninety-day deadline for motions to reopen. This conclusion comports with our precedent, see Liu v. Att’y Gen., 555 F.3d 145, *325148 (3d Cir.2009), and we find that the BIA did not abuse its discretion in denying Zheng’s untimely motion to reopen.2
Zheng’s argument that she is entitled to file a successive asylum application is also foreclosed by our decision in Liu, 555 F.3d at 150-51. We have held that in considering an application to file a successive asylum application, the BIA should apply 8 U.S.C. § 1229(a)(7)(C)(ii), which requires evidence to demonstrate “changed country conditions arising in the country of nationality.” Id. Zheng argues that such an interpretation violates the equal protection clause of the Fifth Amendment, in that it holds aliens who have already submitted a prior asylum application to a more stringent standard than otherwise similarly-situated aliens who have never filed an asylum application. In Liu, we acknowledged Zheng’s argument, see id. at 151; however, we found that to interpret 8 U.S.C. § 1158(a)(2)(B) otherwise would circumvent 8 U.S.C. § 1229a(c)(7)(A) and “would not honor Congress’ purpose in the INA to avoid abuse of the system.” Id.
For the above reasons, we will deny the petition for review.
. We have no jurisdiction to review the BIA’s decision to decline to invoke its sua sponte authority to reopen a case under 8 C.F.R. § 1003.2(a). See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474 (3d Cir.2003) (holding that such authority “is committed to [the agency's] unfettered discretion. Therefore, the very nature of the claim renders it not subject to judicial review”) (quoting Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999)).
. We note that in Zheng’s motion to the BIA, she submitted evidence related to conditions in China, but she did not argue that her motion was based on changed circumstances in China, instead conceding that the motion was based on her changed personal circumstances. Thus, we deny the petition for review, despite the BIA's cursory and concluso-ry denial. See Zheng v. Att’y Gen., 549 F.3d 260, 268 (3d Cir.2008) (holding that the BIA must explicitly consider any country conditions evidence that materially bears on an applicant’s claim). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478900/ | OPINION
PER CURIAM.
Chetan Thakar appeals the dismissal of his pro se complaint asserting claims of legal malpractice and conspiracy. We will affirm.
I.
Thakar filed a two-count complaint in the United States District Court for the District of New Jersey asserting claims of (1) legal malpractice against four lawyers (Resnick, Nirenberg, Manta, and Tan) whom he had retained to represent him in civil actions in state and federal court, and (2) a conspiracy between each of those four lawyers and the Community Hospital Group Inc. t/a JFK Medical Center (“JFK”).
According to the complaint and its numerous attached exhibits, Thakar’s appointment as Chief Resident in Neurology at JFK was terminated in May 1998. Tha-kar received a failing score on a medical licensing exam, although he maintains that “the score he received ... is a forged document!!]” Compl. ¶ 13. Thakar filed suit in federal court, alleging discrimination, wrongful termination, and other claims, see Thakar v. JFK Medical Ctr., 149 Fed.Appx. 53 (3d Cir.2005), and he later filed suit in state court, alleging breach of contract, see Thakar v. JFK Medical Ctr., No. A1337-06, 2007 WL 1498816 (NJ.Super.Ct.App.Div. May 24, 2007).
After losing both suits, he filed this action, suing JFK on the theory that it had conspired with his lawyers. Thakar claimed that because his lawyers “committed malpractice in one way or another,” causing him to lose the federal and state cases, “[t]his raises extremely strong circumstances of conspiracy between each of these attorneys and JFK.” Compl. ¶ 38. He alleged, “[o]n information and belief, [that] JFK approached each attorney individually, ... and unduly influenced them into prejudicing Thakar’s claims against JFK.” Id. Thakar sought to recover damages.
The District Court granted JFK’s motion to dismiss. It held that Thakar’s allegations were insufficient under the requirements of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), to state a claim for conspiracy because Thakar rested his claim on the mere failure of his lawyers to prevail in the suits against JFK. Because Thakar alleged no other facts to support his conspiracy theory, the District Court concluded that the possibility of a conspiracy did not rise above the level of conjecture, and therefore the claim cannot survive dismissal under Rule 12(b)(6).
The District Court then granted Resnick and Nirenberg’s motion to dismiss, holding that (1) the malpractice claims must be dismissed with prejudice because Thakar failed to file an affidavit of merit under N.J.S.A. § 2A:53A-27, and (2) the conspiracy claims fail under Twombly. The District Court also granted Manta’s motion to dismiss for the same reasons, rejecting Thakar’s argument that his case falls within the common knowledge exception to the affidavit of merit requirement. Finally, after notice to Thakar, the District Court dismissed the claims against Tan without prejudice under Federal Rule of Civil Procedure 4(m) for failure to effect timely service of the summons and complaint. Thakar timely filed this appeal.
*328II.
The District Court had diversity jurisdiction under 28 U.S.C. § 1332. We have appellate jurisdiction under 28 U.S.C. § 1291. Our review is plenary of a dismissal under Rule 12(b)(6). Lora-Pena v. F.B.I., 529 F.3d 503, 505 (3d Cir.2008). When deciding a motion to dismiss, a court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008). We review a dismissal under Rule 4(m) for abuse of discretion. Boley v. Kaymark, 123 F.3d 756, 758 (3d Cir.1997).
Thakar first challenges the dismissal of his conspiracy claim. He argues that the allegations in his pro se complaint are sufficient to state a claim, and that the District Court erred in applying the standards of Twombly rather than what Tha-kar perceives as a more forgiving standard applied to pro se litigants in Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). We discern no error in the District Court’s analysis.
To survive a motion to dismiss, a complaint — even a pro se complaint — “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. We have held that a conspiracy claim “must include at least a discernible factual basis to survive a Rule 12(b)(6) dismissal.” Capogrosso v. Supreme Ct. of N.J., 588 F.3d 180, 184 (3d Cir.2009) (per curiam). While we are “mindful that direct evidence of a conspiracy is rarely available and that the existence of a conspiracy must usually be inferred from the circumstances ..., the rule is clear that allegations of a conspiracy must provide some factual basis to support the existence of the elements of a conspiracy: agreement and concerted action.” Id. (quoting Crabtree v. Muchmore, 904 F.2d 1475, 1481 (10th Cir.1990)).
Thakar’s conspiracy claim is premised on the fact that he lost his suits against JFK, and his rank speculation that JFK must have approached his lawyers and influenced them. These allegations are plainly insufficient. Cf. Capogrosso, 588 F.3d at 185 (plaintiff failed to state conspiracy claim based on allegation “that Judge Fast interacted with Judge Iglesias after presumably hearing her discuss her case in a hallway, and that Judge Iglesias’ subsequent adverse ruling gives rise to an inference of conspiratorial conduct”). While a litigant’s pro se status requires a court to construe the allegations in the complaint liberally, see Erickson, 551 U.S. at 94, 127 S.Ct. 2197, a litigant is not absolved from complying with Twombly and the federal pleading requirements merely because s/he proceeds pro se. Thakar’s allegations, construed liberally, fail to state a claim for relief.
Thakar argues that the District Court erred in failing to afford leave to amend the conspiracy claim. “We have instructed that if a complaint is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 236 (3d Cir.2008). Here, amendment would be futile. In response to JFK’s motion to dismiss, Thakar relied upon his *329speculation that a conspiracy was afoot because so many of his attorneys allegedly committed malpractice; he gave no indication that he could provide additional factual support for the claim. Similarly, in a proposed amended complaint filed with the District Court, Thakar merely sought to add another lawyer as a defendant for alleged malpractice; he set forth no additional facts to support the conspiracy claim. Thakar offers no explanation on this appeal as to how he would amend to state a viable claim. We are satisfied that leave to amend was not required.
Thakar next challenges the dismissal of his malpractice claim against Manta for failure to file an affidavit of merit.1 Under New Jersey law, which the parties agree governs this case, a plaintiff alleging malpractice by a licensed professional must, within 60 days after an answer to the complaint, “provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices.” N.J. Stat. Ann. § 2A:53A-27. This statute reflects substantive state law and must be applied in diversity actions. See Chamberlain v. Giampapa, 210 F.3d 154, 160 (3d Cir.2000). Failure to provide an affidavit of merit within the time required warrants dismissal “for failure to state a cause of action.” N.J. Stat. Ann. § 2A:53A-29.
Thakar concedes that he failed to file an affidavit of merit, but he argues that his case turns on “common knowledge” regarding legal malpractice, and thus no affidavit should be required. “The factual predicate for a common knowledge case is one where the carelessness of the defendant is readily apparent to anyone of average intelligence and ordinary experience.” Natale v. Camden County Corr. Facility, 318 F.3d 575, 579 (3d Cir.2003) (quotation marks omitted); see Hubbard v. Reed, 168 N.J. 387, 774 A.2d 495, 500 (2001) (“If jurors, using ordinary understanding and experience and without the assistance of an expert, can determine whether a defendant has been negligent, the threshold of merit should be readily apparent from a reading of the plaintiffs complaint.”). If, however, “the claim’s underlying factual allegations require proof of a deviation from the professional standard of care applicable to that specific profession,” an affidavit of merit is required. Couri v. Gardner, 173 N.J. 328, 801 A.2d 1134, 1141 (2002).
Thakar’s claim does not turn on common knowledge. Thakar challenges Manta’s alleged delay in filing suit in state court, which he claims resulted in dismissal of the suit as barred by the statute of limitations. As the District Court observed, understanding a lawyer’s duties with regard to a statute of limitations depends on an industry standard of care, and is beyond the experience of the ordinary person. Expert testimony would be required to determine the duty of care owed, and whether Manta’s actions breached that duty. See Aster ex rel. Garofalo v. Shoreline Behavioral Health, 346 N.J.Super. *330536, 788 A.2d 821, 825 n. 4 (N.J.Super.Ct.App.Div.2002) (“Because plaintiffs predicate for liability as asserted in the complaint is the manner in which a ‘licensed person’ exercised responsibilities and judgment, and because the respects in which the deficiencies occurred, if indeed they did occur, is not a matter within the knowledge of the average citizen or juror, plaintiff would need an expert in order to make out a prima facie case before the jury.”).
Assuming he must file an affidavit of merit, Thakar argues that he substantially complied with the statute. New Jersey recognizes substantial compliance with the affidavit of merit requirement, but to invoke the doctrine a defaulting party must show: “(1) the lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of petitioner’s claim; and (5) a reasonable explanation why there was not strict compliance with the statute.” Newell v. Ruiz, 286 F.3d 166, 169 (3d Cir.2002) (citation omitted). We fully agree with Manta that Thakar has not shown substantial compliance, as Thakar bases his argument mainly upon an assertion that he contacted numerous attorneys to represent him in the past, and was unable to obtain “competent representation.” Appellant’s Br. at 16; cf. Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 771 A.2d 1141 (2001) (plaintiffs submission of medical reports to the defendants’ insurance carrier before trial in an effort to settle claim constituted substantial compliance).
Finally, Thakar challenges the dismissal without prejudice under Rule 4(m) of his claims against Tan. Rule 4(m) provides that if service is not made within 120 days after the complaint is filed, the court “must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Thakar claims that he served Tan by certified mail at his New Jersey business address, and he points to a proof of service that he filed approximately two weeks after filing the complaint. (Docket # 3.) Tan filed a letter with the court claiming that he was never served. (Docket # 6.) On March 12, 2008, the Clerk entered an order advising that the matter would be dismissed unless Thakar could establish that he served within 120 days after filing the complaint. Thakar responded by letter stating that he would rely on the proof of service previously filed. (Docket # 44.) On March 20, 2009, the District Court dismissed the matter under Rule 4(m), finding that Thakar had failed to serve within the time required.
The federal rules provide in relevant part that an individual may be served in a judicial district of the United States by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Fed.R.Civ.P. 4(e)(1).2 Thakar does not cite any New Jersey rule that he believes supports his claim of proper service upon Tan. Personal service is the “primary method of obtaining in personam jurisdiction over a defendant” in New Jersey, N.J. Ct. R. 4:4-4, and Thakar, as noted, did not effect personal service. The New Jersey rules provide for “optional mailed service” by registered or certified mail in lieu of personal service, but “such service shall be effective for obtaining in personam jurisdiction only if the defendant answers the *331complaint or otherwise appears in response thereto.” N.J. Ct. R. 4:4-4(c). Tan never responded to the complaint, thereby making any certified mailing ineffective. Finally, under Rule 4:4-3, New Jersey permits service by certified mail if “personal service cannot be effected after a reasonable and good faith attempt.” N.J. Ct. R. 4:4-3. Thakar has demonstrated no attempt at personal service. On this record, the District Court properly dismissed the claims against Tan.
III.
We have considered Thakar’s remaining contentions, including those raised for the first time in his reply brief, and we find those contentions either waived or without merit. Based on the foregoing, we will affirm the District Court’s judgment.
. Thakar, who is an experienced and educated litigant, expressly limits the argument under "Point III” of his opening brief (and “Point IV” of his reply brief) to challenging the dismissal of his malpractice claim against Manta only. Because he does not raise any challenge to the dismissal of his malpractice claims against Resnick and Nirenberg, we deem those issues waived. See Capogrosso, 588 F.3d at 184 n. 1. The waiver notwithstanding, we are satisfied that Thakar’s claims were properly dismissed for failure to file an affidavit of merit.
. It is undisputed that Thakar did not serve Tan personally, did not leave a copy of the complaint at Tan’s dwelling house or usual place of abode with a suitable person, and did not deliver the complaint to an authorized agent. See Fed.R.Civ.P. 4(e)(2). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478902/ | OPINION
PER CURIAM.
Maurice Oparaji appeals pro se from the District Court’s post-judgment order denying what we construe as his motion to hold defendants in contempt. We will affirm.
I.
Oparaji filed a complaint alleging that North East Auto-Marine Terminal (“NEAT”), among others, breached a contract with him to ship a truck fitted with dredging equipment to Nigeria and committed various related torts. Oparaji apparently had delivered the truck to NEAT, but defendants had not shipped it to Nigeria. On October 23, 2007, a jury returned a verdict in favor of the defendants on all counts.
That same day, the District Court entered an order (1) noting that Oparaji’s truck remained on NEAT’s property, (2) directing the United States Marshals Service to supervise the return of the truck to Oparaji, and (3) requiring the parties to cooperate with the Marshal’s directions.1 Oparaji filed a motion to stay execution of that order. The District Court denied the motion, noting that defendants had no duty to store Oparaji’s truck and that its order merely required Oparaji to assume responsibility for his own property. See Oparaji v. N.E. Auto-Marine Terminal, No. 04-6445, 2007 WL 3226605, at *1 (D.N.J. Oct.29, 2007). Oparaji appealed from the jury verdict and the denial of his motion, and we affirmed in all respects. See Oparaji v. N.E. Auto-Marine Terminal, 297 Fed. Appx. 142, 146 (3d Cir.2008). Among other things, we noted that Oparaji “failed to provide any legitimate basis for vacating the District Court’s order” regarding the return of his truck and rejected his argument that “he should not have to deal with storing the vehicle, which is indisputably his property.” Id.
Approximately one year later, Oparaji filed the document at issue here, which he captioned merely as a “Judgment.” This time, Oparaji asserted that defendants had failed to return his truck as purportedly required by the District Court’s October 23 order and requested a monetary judgment in the amount of $198,750. Defendants filed declarations in opposition, *333asserting that Oparaji had failed to cooperate with several requests by the Marshal to facilitate the return of his truck, that NEAT stored Oparaji’s truck for more than one year after the District Court’s order before ceasing business and closing its yard in November 2008, and that Oparaji’s truck had thereafter been “scrapped” by a third-party towing company. Defendants also requested that the District Court enjoin what they characterized as further vexatious litigation by Opa-raji. Oparaji did not contest any of defendants’ averments.
On December 8, 2009, the District Court entered an order captioned as an “order noticing plaintiff with respect to further filings in the within litigation.” The District Court noted that its October 23 order contemplated that Oparaji would retrieve his truck from NEAT and merely directed the Marshal to supervise that retrieval. The District Court further concluded that “[t]o the extent the plaintiff is exercising whatever rights to get his truck back that could be inferred from the Court’s order ... they were long ago extinguished when he failed to make arrangements to pick up the truck[.]” Finally, the District Court noted defendants’ requests for an injunction against further litigation, but instead merely put Oparaji “on notice that [it] will impose Rule 11 sanctions as required in the event of further meritless filings.” Oparaji appeals.
II.
We construe Oparaji’s “Judgment” as a motion to hold defendants in contempt and award monetary damages as compensation for their purported violation of the October 23 order. We have jurisdiction under 28 U.S.C. § 1291 to review the denial of the motion. See Berne Corp. v. Government of the Virgin Islands, 570 F.3d 130, 135 n. 10 (3d Cir.2009). We do so for abuse of discretion, and may reverse “only where the denial is based on an error of law or a finding of fact that is clearly erroneous.” Roe v. Operation Rescue, 54 F.3d 133, 137 (3d Cir.1995). “We review a district court’s interpretation of its own order for abuse of discretion” as well. Gibbs v. Frank, 500 F.3d 202, 206 (3d Cir.2007).
We perceive no abuse of discretion here. Oparaji argues that the District Court erred in failing to hold defendants in contempt because the October 23 order required them to return the truck or initiate its return. As the District Court explained, however, the October 23 order contemplated that Oparaji would assume responsibility for the truck, which he resisted doing for almost two years. The order did not require defendants to initiate that process or store the truck indefinitely until Oparaji decided to do so. To the contrary, the order required only that they cooperate with the Marshal’s directions in supervising the truck’s return. Oparaji does not allege that defendants failed to cooperate with the Marshal in any respect or otherwise impeded his ability to retrieve the truck. Nor does he challenge the District Court’s finding that he failed to make any arrangements to retrieve the truck himself.
Oparaji also argues that the District Court’s ruling deprived him of property without a hearing, but the ruling did nothing of the kind. Instead, it merely denied his request for monetary sanctions for defendants’ purported violation of the October 23 order. Finally, Oparaji argues that the District Court impermissibly enjoined him from future litigation. The District Court, however, merely noted the possibility of sanctions in the future, and did not *334abuse its discretion in doing so.2
Accordingly, we will affirm. In addition to affirmance, certain defendants appear to request that we enter an order enjoining Oparaji from further vexatious litigation. We decline to do so at this time, but we will tax costs against Oparaji pursuant to Fed. R.App. P. 39(a)(2).
. The District Court entered two orders in this respect on October 23 (Dist. Ct. Docket Nos. 55 and 56). The second order is captioned as an "amended order” and merely amended the designation of one of the defendants contained in the first order. All references herein to the October 23 order are to the amended order, Docket No. 56.
. Oparaji raises several arguments that he did not present to the District Court. He argues, for example, that defendants committed the tort of conversion by “scrapping” his truck and that a new trial is required because defendants' assertion that his truck has been “scrapped” reveals that they misled the jury about the presence of his truck on NEAT's property. These arguments are beyond the scope of this appeal, but because the second argument concerns proceedings in the District Court we note that it lacks merit. NEAT asserted in the District Court that Oparaji’s truck was “scrapped” by a third-party towing company at some point after NEAT ceased doing business in November of 2008, which was over one year after the jury entered its verdict. That assertion has no bearing on the location of Oparaji’s truck at the time of trial. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478904/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
Nassar Rahmaan appeals from a jury verdict finding him guilty of conspiracy, identity theft, and passport offenses, and his resulting sentence of 78 months’ imprisonment. Rahmaan contends that the District Court erred by (1) denying his request to cross-examine a government witness regarding a 1993 aggravated assault conviction, (2) applying a sentencing enhancement based on the involvement of six passports in the offense, and (3) finding that Rahmaan was an organizer or a leader of criminal activity for sentencing purposes. We write only for the parties and assume their familiarity with the factual and procedural history of this case. We will affirm.
*339At trial, the government provided evidence that Rahmaan recruited, instructed, transported, and paid individuals to apply for passports using their identifying information and another person’s picture. One of these individuals, Malik Upshur, applied for a passport using his own picture and identifying information and gave the passport to Rahmaan for a promised payment of $1,000.
During the trial, Rahmaan attempted to cross-examine a government witness, Scottie Williams, regarding a 1993 aggravated assault conviction. Rahmaan initially contended that this conviction was relevant to disprove the government’s suggestion in its opening statement that Rah-maan had control or influence over Williams. On appeal, Rahmaan argues that the conviction should have been admissible to impeach Williams under Federal Rule of Evidence 609. The District Court ruled that Williams’ conviction was irrelevant because the government had not suggested that Rahmaan had any control over Williams, and inadmissible because it did not comply with Federal Rule of Evidence 609(b). Under Rule 609(b), evidence of a conviction is inadmissible to impeach a witness if it is more than ten years old, unless the court decides that its probative value “substantially outweighs” its prejudicial effect. The District Court did not err in excluding evidence of Williams’ conviction, as it was over ten years old and had virtually no probative value.1
At Rahmaan’s sentencing, the District Court applied an enhancement under U.S.S.G. section 2L2.1 upon finding that “the offense involved six or more documents or passports.” Rahmaan claims that there were only five fraudulent passports involved in the offense because the passport that contained Upshur’s photograph 2 and identifying information was legitimate. However, Rahmaan solicited Upshur to obtain this passport and paid Upshur for it. Therefore, the District Court did not err in applying the enhancement under U.S.S.G. section 2L2.1 because Upshur’s passport was clearly “involved” in the offense, though the passport may have been legitimate.
Finally, Rahmaan contends that he was entitled to a jury finding regarding his role in the offense for sentencing purposes under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). However, the portion of the Ap-prendi holding that Rahmaan relies on applies only to facts that increase the statutory maximum punishment—such facts must be found by a jury and proved beyond a reasonable doubt. United States v. Grier, 475 F.3d 556, 567 (3d Cir.2007) (en banc).
Facts relevant to application of the Guidelines ... do not [increase the maximum punishment], E.g., Tannis, 942 F.2d at 198; see also U.S. Sentencing Guidelines Manual § 5G1.1. They inform the district court’s discretion without limiting its authority. They therefore do not constitute “elements” of a “crime” under the rationale of Apprendi and do not implicate the rights to a jury trial and proof beyond a reasonable doubt. 530 U.S. at 490, 120 S.Ct. 2348.
Id. at 567-68.
The District Court properly determined on its own that Rahmaan was an organizer *340or a leader of the criminal activity for sentencing purposes, as this finding did not increase Rahmaan’s statutory maximum punishment.
For the foregoing reasons we will AFFIRM Rahmaan’s conviction and sentence.
. Rahmaan's argument based on Rule 609, governing impeachment, is subject to plain error review because it was not raised at trial. The District Court did not plainly err in not permitting the evidence on this basis.
. Upshur first attempted to apply for a passport using photographs of a black male given to him by Rahmaan. After the passport clerk told Upshur that the photos did not look like him, Upshur applied for a passport using photographs of himself. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478906/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gloria Bautista appeals the district court’s order adopting the magistrate judge’s reports and recommendations to grant Defendant’s summary judgment motion on her race and national origin discrimination claims, brought pursuant to *358Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order. Bautista v. Clemson Univ., No. 8:07-cv-01287-HFF, 2009 WL 742721 (D.S.C. Mar. 20, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478911/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harry James Cascio appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Cascio v. State of Maryland, No. 8:09-cv-01938-RWT, 2009 WL 2913485 (D.Md. Sept. 2, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478913/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keith Darnell McNeill appeals the district court’s order denying his motion for a reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find the district court did not abuse its discretion in denying the motion. See United States v. Munn, 595 F.3d 183, 186-87 (4th Cir.2010). Accordingly, we affirm the district court’s order for the reasons stated there. See United States v. McNeill, No. 4:08-cr-00012-HCM-FBS-l (E.D.Va. Nov. 30, 2009). Further, we deny McNeill’s motion for the appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478910/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harry James Cascio appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Cascio v. State of Maryland, No. 8:09-cv-01938-RWT, 2009 WL 2913485 (D.Md. Sept. 2, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478912/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keith Darnell McNeill appeals the district court’s order denying his motion for a reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find the district court did not abuse its discretion in denying the motion. See United States v. Munn, 595 F.3d 183, 186-87 (4th Cir.2010). Accordingly, we affirm the district court’s order for the reasons stated there. See United States v. McNeill, No. 4:08-cr-00012-HCM-FBS-l (E.D.Va. Nov. 30, 2009). Further, we deny McNeill’s motion for the appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478914/ | *371Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sylvester Kelly appeals the district court’s oi’der denying his motion to reconsider the court’s earlier order ruling on his 18 U.S.C. § 3582(c)(2) (2006) motion for a reduction in sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm. See United States v. Goodwyn, 596 F.3d 233, 234-36 (4th Cir.2010) (holding that district court lacked authority to grant defendant’s motion to reconsider, filed eight months after the district court’s order ruling on original § 3582(c)(2) motion). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478916/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ivan Magdaleno appeals the district court’s orders denying his motion for specific performance of his plea agreement pursuant to Federal Rule of Criminal Procedure 35(b), his motion for reconsideration of that denial, and his motion to reopen the case. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Magdaleno, No. 7:06-cr00703-GRA-2, 2009 WL 4432577 (D.S.C. Nov. 9, 2009; Nov. 25, 2009); 2010 WL 360508 (Jan. 26, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478922/ | *395Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this cii-cuit.
PER CURIAM:
Reco Taylor, a federal prisoner, appeals the district court’s order adopting portions of the report and recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, although we grant leave to proceed in forma pauperis, we affirm for the reasons stated by the district court. Taylor v. United States, No. 3:08-cv-03610-JFA (D.S.C. Oct. 1, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478955/ | PER CURIAM: *
The court has carefully considered these consolidated cases in light of the briefs, *494oral argument and pertinent portions of the record. Having done so, we find no reversible error of law or fact and affirm essentially for the reasons stated by the district court.
AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478915/ | *371Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sylvester Kelly appeals the district court’s oi’der denying his motion to reconsider the court’s earlier order ruling on his 18 U.S.C. § 3582(c)(2) (2006) motion for a reduction in sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm. See United States v. Goodwyn, 596 F.3d 233, 234-36 (4th Cir.2010) (holding that district court lacked authority to grant defendant’s motion to reconsider, filed eight months after the district court’s order ruling on original § 3582(c)(2) motion). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478917/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ivan Magdaleno appeals the district court’s orders denying his motion for specific performance of his plea agreement pursuant to Federal Rule of Criminal Procedure 35(b), his motion for reconsideration of that denial, and his motion to reopen the case. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Magdaleno, No. 7:06-cr00703-GRA-2, 2009 WL 4432577 (D.S.C. Nov. 9, 2009; Nov. 25, 2009); 2010 WL 360508 (Jan. 26, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478920/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lyndell Thomas appeals the district court’s order denying his 18 U.S.C. § 3582(c) (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Thomas, No. 3:93-cr-00058-BR-3, 2009 WL 3300255 (E.D.N.C. Oct. 13, 2009). We dispense with oral argument *379because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478925/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Arnold Young seeks to appeal the district court’s order directing Young to provide evidence that he exhausted his administrative remedies and to pay the filing fee or his 28 U.S.C. § 2241 (2006) petition would be dismissed. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Young seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we deny leave to proceed in forma pauperis and dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478927/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cornelius Maurice Regan, a federal prisoner, appeals the district court’s order denying relief on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Regan v. Johns, No. 5:08-hc02055-D (E.D.N.C. Sept. 18, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478956/ | ORDER
Kenneth Hill appeals from his 188-month sentence for conspiring to commit racketeering. See 18 U.S.C. § 1962(d). He contends principally that the district court improperly classified two of his prior convictions under Wisconsin law as crimes of violence — a classification that led him to be deemed a “career offender” and thus subject to a higher sentence. As the government concedes, one of these crimes was indeed misclassified, and we therefore vacate and remand for resentencing. On remand the district court should also clarify its findings about Hill’s criminal history.
The racketeering charge to which Hill pleaded guilty stemmed from his activities on behalf of the Almighty Latin King Nation, particularly his drug deals and his storage of gang-owned firearms. At sentencing the district court concluded that two of his prior convictions — one for fleeing from an officer, Wis. Stat. § 346.04(3), and one for second-degree recklessly endangering safety, Wis. Stat. § 941.30(2)— constituted crimes of violence. See U.S.S.G. § 4B1.2(a). That finding triggered application of the career-offender guideline, U.S.S.G. § 4Bl.l(a). After a 3-point reduction for acceptance of responsibility, the court assessed Hill’s total offense level at 29 rather than the level 16 that otherwise would have applied. With a criminal history category of VI (the same category the court would have placed him in without the career-offender guideline), Hill’s guideline range was 151-188 months. The court sentenced him to the very top of that range.
On appeal Hill challenges the district court’s conclusion that his prior felonies were both crimes of violence under U.S.S.G. § 4B1.2(a). He argues that neither crime falls within § 4B1.2(a)(l), which involves crimes that have “as an element the use, attempted use, or threatened use of physical force against the person of another,” or § 4B1.2(a)(2), which covers offenses such as burglary, extortion, use of explosives, or other conduct that creates a serious potential risk of physical injury to another.
Hill’s argument about the conviction for fleeing from an officer is foreclosed by our recent decision in United States v. Dismuke, 593 F.3d 582, 593-94 (7th Cir.2010), where we applied Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) and concluded that this offense qualified as a violent felony under the Armed Career Criminal Act, 18 U.S.C. § 924(e). The terms “violent felony” under the ACCA and “crime of violence” under the career-offender guideline are nearly identical in meaning, so that a decision interpreting one term informs the interpretation of the other. See United States v. Templeton, 543 F.3d 378, 379-80 (7th Cir.2008).
Hill is correct, however, about his conviction for recklessly endangering safety, a point that the government concedes. As we held in United States v. Woods, 576 F.3d 400 (7th Cir.2009), an offense for which the mental state is recklessness is not a “crime of violence” under the career-offender guideline because it does not meet the parallel standards for violent felonies established by the Supreme Court in Begay. Woods, 576 F.3d at 412-13 (applying Begay, 128 S.Ct. 1581); see United States v. High, 576 F.3d 429 (7th Cir.2009) (holding that a felony conviction for violating Wis. Stat. § 941.30(2) is not a “violent felony” as that term is used in the ACCA). Second-degree recklessly endangering safety, in violation of Wis. Stat. § 941.30(2), is therefore not a crime of violence for the specific purpose of the *658career-offender guideline. Because Hill has only one prior felony conviction of a crime of violence, he is not a career offender under U.S.S.G. § 4Bl.l(a)(3) and must be resentenced.
Hill also raises a challenge to the calculation of his criminal history points. He argues that his § 941.30(2) conviction should not count because the conduct underlying that offense stemmed from his involvement in the racketeering operation. “When calculating a defendant’s criminal history category, a district court may not consider prior convictions for acts which constitute relevant conduct — conduct that was part of the instant offense.” United States v. Bryant, 557 F.3d 489, 503 (7th Cir.2009); see U.S.S.G. § 4A1.2 cmt. n. 1; United States v. Olson, 408 F.3d 366, 373 (7th Cir.2005).
Here the court considered only whether the specific conduct underlying the § 941.30(2) conviction was charged as a predicate act. in the racketeering indictment. But the court must consider all the evidence and “make specific factual findings regarding the underlying conduct,” and then determine the “relatedness” of the offenses on that basis. Bryant, 557 F.3d at 503. On remand, the court should take the opportunity to squarely address Hill’s contention that the conduct underlying his § 941.30(2) conviction was carried out in furtherance of the racketeering operation.
For the reasons given above, we VACATE the sentence and REMAND the case for resentencing consistent with this order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478958/ | ORDER
A grand jury charged Jason Tolen with second degree murder for beating a fellow inmate to death. The case went to trial and a jury convicted Tolen of the lesser included offense of voluntary manslaughter. After adding an enhancement for obstruction of justice, the district court sentenced him to 180 months imprisonment. Tolen now appeals.
Tolen and Jason Katz were federal inmates at the Metropolitan Correctional Center (MCC) in Chicago, Illinois. Both men were serving the last few months of their sentences. On March 11, 2008, Tolen and Katz attended a prerelease class, the purpose of which was to educate inmates about issues they could face when they reentered society. Prior to class, an inmate asked Tolen if he had told on another inmate for stealing laundry. Tolen responded that “He told on me, so I’m gonna tell on him.” After the instructor came into the room, a different inmate informed the class that correctional officers were upstairs shaking down (thoroughly searching) the unit and that Tolen had gotten them all in trouble. Tolen then heard Katz say we just got done talking about “that snitch-ass bitch.” Tolen took offense to Katz using the word “bitch,” so Tolen said “What?” to Katz. Katz responded, “Yeah, you heard me, you snitch-ass bitch.” Tolen told Katz to “say it to my face, bitch,” and “I’ll fuck you up.” Katz told Tolen he did not want to fight and he didn’t stand up as Tolen continued to yell at him. Even though Katz seemed to be backing down, Tolen walked to Katz’s seat and punched him in the face about 20 times. The blows caused massive hemorrhaging in Katz’s brain. Katz received CPR and medical attention before dying the next day.
A grand jury indicted Tolen for second degree murder and the case proceeded to a jury trial. Wfiiile testifying in his own defense, Tolen admitted that he pummeled Katz in response to being called a bitch but denied that he intended to hurt him. The jury acquitted Tolen of murder in the second degree and convicted him of the lesser included offense of voluntary manslaughter. At sentencing, the district *660court added two offense levels for obstruction of justice based on Tolen’s testimony that he did not intend to harm Katz. The district court then sentenced him to a term of 180 months, which is within the sentencing guideline range.
Tolen raises two issues on appeal. First, he contends that the district court abused its discretion by declining to instruct the jury concerning the additional lesser included offense of involuntary manslaughter. Second, he argues that the district court committed clear error by imposing a two-level enhancement for obstruction of justice based on his testimony that he did not intend to hurt Katz even though he repeatedly punched him in the face.
We review the district court’s refusal to instruct the jury regarding the requested lesser included offense for abuse of discretion. United States v. Hill, 196 F.3d 806 (7th Cir.1999). This means we will only reverse “where no reasonable person could take the view adopted by the trial court.” United States v. Hernandez, 330 F.3d 964, 971 (7th Cir.2003) (quoting United States v. Hughes, 970 F.2d 227, 232 (7th Cir.1992)).
A defendant is entitled to a lesser included offense instruction if “there is enough evidence to permit a rational jury to conclude that he was guilty of it.” Hill, 196 F.3d at 807. To find a defendant guilty of involuntary manslaughter, a jury-must find that he killed without malice, “[i]n the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.” 18 U.S.C. § 1112(a). Under 18 U.S.C. § 113(6), any assault within the territorial jurisdiction of the United States which results in serious bodily injury to the victim is a felony. The parties stipulated to the MCC’s territorial jurisdiction within the United States, and Tolen beat Katz to death, undoubtedly a serious injury. Therefore, no rational jury could find that the first clause of the statute applies.
In order for the second clause to apply, the defendant must have acted lawfully. Typically, this clause applies when a person engages in self-defense — a lawful act— but takes it too far. The facts make it very clear that Tolen did not kill Katz in self-defense or during any other lawful act. Tolen repeatedly punched Katz in the face after Katz told him he did not want to fight, and Katz did not stand up to prepare to defend himself as Tolen yelled at him.
Furthermore, Tolen continued punching Katz even though Katz did not fight back. Since there was no evidence from which a rational jury could have found Tolen guilty of involuntary manslaughter, the district court did not abuse its discretion by refusing to give the additional lesser included offense instruction. And on this record, Tolen was fortunate that the district court gave the jury the option of finding him guilty of voluntary manslaughter. He got a good deal with that decision. To ask for more strikes us as a bit greedy.
Tolen also maintains that the district court erred by adding two offense levels for obstruction of justice because he did not “willfully intend to testify falsely” by claiming that he did not intend to harm Katz. We review the district court’s finding for clear error.
Tolen argues that he did not intend to harm Katz but only intended to shut him up. Prior to the assault, however, Tolen told Katz that he “will fuck you up.” As mentioned, Katz told Tolen that he did not want to fight and he did not stand up to defend himself as Tolen yelled at him. Tolen also continued punching Katz even though Katz never threw a punch himself. He beat Katz so severely that Katz suffered severe head trauma with massive *661hemorrhaging and a displaced artery at the base of his skull. Despite what Tolen says, it’s clear from his actions that he intended to harm Katz. Therefore, the district court did not commit clear error by applying the two-level enhancement for obstruction of justice.
For these reasons, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478960/ | ORDER
Aníbal Pineda-Areola pleaded guilty to conspiracy to distribute methamphetamine, cocaine, and marijuana. See 21 U.S.C. §§ 846, 841(a)(1). In his plea agreement, he waived his right to appeal the conviction and sentence, but reserved the right to appeal the denial of a motion to suppress evidence regarding a mobile phone seized from him during his arrest. He was sentenced to 120 months’ imprisonment. Pineda-Areola filed a notice of appeal, but his appointed counsel now seeks to withdraw because he cannot identify any nonfrivolous ground for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We confine our review to the potential issues identified in counsel’s facially adequate brief, see United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002), and Pineda-Areola’s submission in response, see CIR. R. 51(b).
As part of an investigation into suspected drug trafficking in Louisville, Kentucky and southern Indiana, law enforcement officers tapped the phone of a drug dealer who made drug-related calls to a mobile phone used by Pineda-Areola. During these calls Pineda-Areola was identified only as “Japo.” In a sequence of these calls, the drug dealer set up a transaction with Pineda-Areola at a McDonald’s parking lot in Mumfordville, Kentucky. Officers carried out a surveillance of the transaction and saw the drug dealer’s courier remove a blue cooler from Pineda-Areola’s truck and place it in the courier’s vehicle. The officers approached Pineda-Areola (and others) and asked them for identification. The agents checked with the Bureau of Immigrations and Customs Enforcement and were told that Pineda-Areola was in the United States illegally and that he should be brought to Louisville for questioning. After the officers patted-down Pineda-Areola, they seized a mobile phone that was in his front pants pocket. When an officer used another phone to dial the phone number used by “Japo,” the phone vibrated. Pineda-Areola was arrested for being in the United States illegally, and was subsequently charged with conspiracy to distribute controlled substances. He moved to suppress evidence related to the phone on grounds that the officers did not have reasonable suspicion to stop him, probable cause to arrest him, and permission to “search” his phone by dialing “Japo’s” number. He later pleaded guilty to the charges.
Pineda-Areola suggests in his Rule 51(b) response that he is dissatisfied with his plea agreement and did not understand its significance. But any challenge to Pineda-Areola’s plea would be frivolous. The district court conducted a thorough colloquy under Fed.R.Crim.P. 11, and we see no error, plain or otherwise. (Our review would be for plain error because Pineda-Areola did not move to withdraw his plea in the district court. United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Sura, 511 F.3d 654, 658 (7th Cir.2007).)
Counsel considers whether Pineda-Areola can raise any challenge to the district court’s denial of his motion to suppress. He first examines whether Pineda-*663Areola could argue that the district court wrongly refused to suppress evidence of the phone because the stop and search were not supported by reasonable suspicion as required by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Counsel correctly concludes that this argument would be frivolous given the circumstances leading to the stop. It is proper for an officer to conduct a Terry stop when the officer is “able to point to ‘specific and articulable facts’ that suggest criminality so that he is not basing his actions on a mere hunch.” United States v. Booker, 579 F.3d 835, 838 (7th Cir.2009) (quoting Jewett v. Anders, 521 F.3d 818, 823 (7th Cir.2008)). Here the law enforcement officers had tapped phone conversations between “Japo” and the drug dealer concerning drug transactions. From these calls they learned that “Japo” had set up a drug transaction to occur at the McDonald’s parking lot on June 5, 2007. At the parking lot the officers saw the drug dealer’s courier transfer a cooler from Pineda-Ar-eola’s vehicle to his own vehicle. Given that the officers knew the day and location of a planned drug deal, followed the drug dealer’s courier to the location on that day, and observed the drug dealers exchange a cooler, the officers had much more than a “mere hunch” on which to conclude that a crime was being committed.
Counsel next examines whether Pineda-Areola could challenge the district court’s conclusion that the officers had probable cause to arrest him for an immigration violation. But any such challenge would be frivolous. An officer was informed by an agent -with Immigration Customs Enforcement that Pineda-Areola was in the United States illegally and consequently should be taken into custody. Once the officer had reasonably trustworthy information (from the ICE agent) that Pineda-Areola was committing a crime (being in the United States unlawfully), the officers had probable cause to arrest him. United States v. Burnside, 588 F.3d 511, 517-18 (7th Cir.2009); United States v. Brown, 366 F.3d 456, 458-59 (7th Cir.2004).
Counsel also examines whether Pineda-Areola could challenge the district court’s finding that dialing the phone number associated with “Japo” (and thereby identifying him as Pineda-Areola) was not a search under the Fourth Amendment. But counsel correctly concludes that any such challenge would be frivolous. Even if dialing a phone were considered a search, the officers were entitled to search Pine-da-Areola and the phone incident to his lawful arrest. See United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); United States v. Ortiz, 84 F.3d 977, 984 (7th Cir.1996) (upholding search of contents of pager as incident to lawful arrest); United States v. Finley, 477 F.3d 250, 258-60 (5th Cir.2007) (upholding search of mobile phone’s call records and text messages as incident to lawful arrest).
Finally, Pineda-Areola suggests in his Rule 51(b) response that he was dissatisfied with counsel’s performance in the district court. To the extent, however, that he wishes to pursue a claim of ineffective assistance, that is best done in a collateral proceeding where the record can be more fully developed. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005).
The motion to withdraw is Granted, and the appeal is Dismissed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478926/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cornelius Maurice Regan, a federal prisoner, appeals the district court’s order denying relief on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Regan v. Johns, No. 5:08-hc02055-D (E.D.N.C. Sept. 18, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478928/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kimpest Gerard Brown appeals the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006), and denying his motion for appointment of counsel. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Brown, No. 1:01-cr-00169-LMB-1 (E.D.Va. Nov. 12, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478931/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edsil B. Keener seeks review of the Benefits Review Board’s decision and order affirming the administrative law judge’s denial of black lung benefits pursuant to 30 U.S.C. §§ 901-945 (2006). Our review of the record discloses that the Board’s decision is based upon substantial evidence and is without reversible error. Accordingly, we deny the petition for review for the reasons stated by the Board. Keener v. DOWCP, No. 08-0261-BLA (B.R.B. Nov. 25, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478932/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Spencer Bowens appeals the district court’s order denying his motion to correct a clerical error pursuant to Fed.R.Crim.P. 36. We have reviewed the record and find no reversible error. Accordingly, although we grant Bowens’s motion for leave to proceed in forma pauperis, we affirm for *417the reasons stated by the district court. United States v. Bowens, No. 3:98-cr-00110-REP (E.D.Va. Aug. 6, 2009); see United States v. Johnson, 571 F.3d 716, 717-18 (7th Cir.2009) (finding that court did not have authority to correct calculation error in the presentence report pursuant to Rule 36). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478934/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Frederick L. Goodman appeals the district court’s orders denying relief on his 42 U.S.C. § 1983 (2006) complaint and denying his motion to alter or amend the judgment. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Goodman v. Maryland Parole Comm’n, No. 1:08-cv-01337-RDB, 2009 WL 2170043 (D. Md. filed July 15, 2009, entered July 16, 2009); (Nov. 12, 2009). We take note that the use of victim impact statements in making a determination regarding parole and the Open Parole Hearing policy did not violate the Ex Post Facto Clause or Goodman’s right to due process. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478929/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kimpest Gerard Brown appeals the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006), and denying his motion for appointment of counsel. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Brown, No. 1:01-cr-00169-LMB-1 (E.D.Va. Nov. 12, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478930/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edsil B. Keener seeks review of the Benefits Review Board’s decision and order affirming the administrative law judge’s denial of black lung benefits pursuant to 30 U.S.C. §§ 901-945 (2006). Our review of the record discloses that the Board’s decision is based upon substantial evidence and is without reversible error. Accordingly, we deny the petition for review for the reasons stated by the Board. Keener v. DOWCP, No. 08-0261-BLA (B.R.B. Nov. 25, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478933/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Spencer Bowens appeals the district court’s order denying his motion to correct a clerical error pursuant to Fed.R.Crim.P. 36. We have reviewed the record and find no reversible error. Accordingly, although we grant Bowens’s motion for leave to proceed in forma pauperis, we affirm for *417the reasons stated by the district court. United States v. Bowens, No. 3:98-cr-00110-REP (E.D.Va. Aug. 6, 2009); see United States v. Johnson, 571 F.3d 716, 717-18 (7th Cir.2009) (finding that court did not have authority to correct calculation error in the presentence report pursuant to Rule 36). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478935/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Frederick L. Goodman appeals the district court’s orders denying relief on his 42 U.S.C. § 1983 (2006) complaint and denying his motion to alter or amend the judgment. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Goodman v. Maryland Parole Comm’n, No. 1:08-cv-01337-RDB, 2009 WL 2170043 (D. Md. filed July 15, 2009, entered July 16, 2009); (Nov. 12, 2009). We take note that the use of victim impact statements in making a determination regarding parole and the Open Parole Hearing policy did not violate the Ex Post Facto Clause or Goodman’s right to due process. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478937/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David A. Bardes seeks to appeal the district court’s order adopting the magistrate judge’s report and recommendation and dismissing all but one of Bardes’s claims and attendant defendants. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan *425Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Bardes seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478938/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dolores L. Chia appeals from the district court’s order denying her motion to amend her complaint and determining that, following her discharge in bankruptcy, she lacked standing to bring claims against Wells Fargo Bank, NA, arising out of the refinance of her mortgage and the subsequent foreclosure sale of her home. We have reviewed the record and find no reversible error. Accordingly, although we grant Chia’s motion for leave to file an amended reply brief, we affirm for the reasons stated by the district court. Chia v. Wells Fargo Bank NA, No. 1:09-cv-00670-LMB-TRJ (E.D. Va. Aug. 3 & 5, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478944/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Ziadeh appeals the district court’s order denying his motions for a “rule to show cause why the respondent The U.S. Government should not be held in contempt for its failure to comply with the Court’s Final Restitution Order entered on June 10, 2003,” and a motion for a “stay of execution of any action related to the Final Restitution Order in the caption [sic] case.” We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Ziadeh, No. 3:02-cr-00273-RLW-1 (E.D. Va. June 11, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478947/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding-precedent in this circuit.
PER CURIAM:
Ewin Henriques petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his Fed.R.Civ.P. 60(b) motion filed in his 28 U.S.C.A. § 2255 (West Supp.2009) proceeding. He seeks an order from this court directing the district court to act. Our review of the docket sheet reveals that the district court denied the motion on January 15, 2010. Accordingly, because the district court has *437recently decided Henriques’s case, we deny the mandamus petition as moot. We grant leave to proceed in forma pauperis. We deny Henriques’s motion for a certificate of appealability. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478949/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Amy McDowell Newbold and Joseph K. Newbold appeal the district court’s order denying their motions pursuant to Fed. R.Civ.P. 60(b)(6), 65(a), 70, for a preliminary injunction, modification of judgment, and an order to show cause for civil contempt. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Newbold, No. 1:05-cv-00625-TDS-PTS, 2009 WL 249393 (M.D.N.C. Feb. 2, 2009). We further deny Appellee Chase Home Finance LLC’s motion to dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478941/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodriguez Samuel Da Matha De Santan-na seeks to appeal the district court order dismissing his claims against one of the four Defendants named in his suit. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order De Santan-na seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478942/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Orlando David Almond appeals the magistrate judge’s order * dismissing as untimely filed Almond’s 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Almond v. Sisk, No. 3:08-cv-00138-MHL, 2009 WL 2424084 (E.D.Va. Aug. 6, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
The parties consented to the magistrate judge's jurisdiction pursuant to 28 U.S.C. § 636(c) (2006). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478945/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Ziadeh appeals the district court’s order denying his motions for a “rule to show cause why the respondent The U.S. Government should not be held in contempt for its failure to comply with the Court’s Final Restitution Order entered on June 10, 2003,” and a motion for a “stay of execution of any action related to the Final Restitution Order in the caption [sic] case.” We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Ziadeh, No. 3:02-cr-00273-RLW-1 (E.D. Va. June 11, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478946/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding-precedent in this circuit.
PER CURIAM:
Ewin Henriques petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his Fed.R.Civ.P. 60(b) motion filed in his 28 U.S.C.A. § 2255 (West Supp.2009) proceeding. He seeks an order from this court directing the district court to act. Our review of the docket sheet reveals that the district court denied the motion on January 15, 2010. Accordingly, because the district court has *437recently decided Henriques’s case, we deny the mandamus petition as moot. We grant leave to proceed in forma pauperis. We deny Henriques’s motion for a certificate of appealability. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478948/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Amy McDowell Newbold and Joseph K. Newbold appeal the district court’s order denying their motions pursuant to Fed. R.Civ.P. 60(b)(6), 65(a), 70, for a preliminary injunction, modification of judgment, and an order to show cause for civil contempt. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Newbold, No. 1:05-cv-00625-TDS-PTS, 2009 WL 249393 (M.D.N.C. Feb. 2, 2009). We further deny Appellee Chase Home Finance LLC’s motion to dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478951/ | PER CURIAM: *
The attorney appointed to represent Jack Garrett has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Garrett has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478952/ | PER CURIAM: *
The attorney appointed to represent Anthony Ray Foley has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Foley has filed a response and moves for the appointment of counsel. Our independent review of the record, counsel’s brief, and Foley’s response discloses no nonfrivo-lous issue for appeal. Foley’s motion for appointment of counsel is DENIED. Cf. United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir.1998) Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478953/ | PER CURIAM: *
The attorney appointed to represent Anthony Ray Foley has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Foley has filed a response and moves for the appointment of counsel. Our independent review of the record, counsel’s brief, and Foley’s response discloses no nonfrivo-lous issue for appeal. Foley’s motion for appointment of counsel is DENIED. Cf. United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir.1998) Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478954/ | PER CURIAM: *
The court has carefully considered these consolidated cases in light of the briefs, *494oral argument and pertinent portions of the record. Having done so, we find no reversible error of law or fact and affirm essentially for the reasons stated by the district court.
AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478957/ | ORDER
Kenneth Hill appeals from his 188-month sentence for conspiring to commit racketeering. See 18 U.S.C. § 1962(d). He contends principally that the district court improperly classified two of his prior convictions under Wisconsin law as crimes of violence — a classification that led him to be deemed a “career offender” and thus subject to a higher sentence. As the government concedes, one of these crimes was indeed misclassified, and we therefore vacate and remand for resentencing. On remand the district court should also clarify its findings about Hill’s criminal history.
The racketeering charge to which Hill pleaded guilty stemmed from his activities on behalf of the Almighty Latin King Nation, particularly his drug deals and his storage of gang-owned firearms. At sentencing the district court concluded that two of his prior convictions — one for fleeing from an officer, Wis. Stat. § 346.04(3), and one for second-degree recklessly endangering safety, Wis. Stat. § 941.30(2)— constituted crimes of violence. See U.S.S.G. § 4B1.2(a). That finding triggered application of the career-offender guideline, U.S.S.G. § 4Bl.l(a). After a 3-point reduction for acceptance of responsibility, the court assessed Hill’s total offense level at 29 rather than the level 16 that otherwise would have applied. With a criminal history category of VI (the same category the court would have placed him in without the career-offender guideline), Hill’s guideline range was 151-188 months. The court sentenced him to the very top of that range.
On appeal Hill challenges the district court’s conclusion that his prior felonies were both crimes of violence under U.S.S.G. § 4B1.2(a). He argues that neither crime falls within § 4B1.2(a)(l), which involves crimes that have “as an element the use, attempted use, or threatened use of physical force against the person of another,” or § 4B1.2(a)(2), which covers offenses such as burglary, extortion, use of explosives, or other conduct that creates a serious potential risk of physical injury to another.
Hill’s argument about the conviction for fleeing from an officer is foreclosed by our recent decision in United States v. Dismuke, 593 F.3d 582, 593-94 (7th Cir.2010), where we applied Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) and concluded that this offense qualified as a violent felony under the Armed Career Criminal Act, 18 U.S.C. § 924(e). The terms “violent felony” under the ACCA and “crime of violence” under the career-offender guideline are nearly identical in meaning, so that a decision interpreting one term informs the interpretation of the other. See United States v. Templeton, 543 F.3d 378, 379-80 (7th Cir.2008).
Hill is correct, however, about his conviction for recklessly endangering safety, a point that the government concedes. As we held in United States v. Woods, 576 F.3d 400 (7th Cir.2009), an offense for which the mental state is recklessness is not a “crime of violence” under the career-offender guideline because it does not meet the parallel standards for violent felonies established by the Supreme Court in Begay. Woods, 576 F.3d at 412-13 (applying Begay, 128 S.Ct. 1581); see United States v. High, 576 F.3d 429 (7th Cir.2009) (holding that a felony conviction for violating Wis. Stat. § 941.30(2) is not a “violent felony” as that term is used in the ACCA). Second-degree recklessly endangering safety, in violation of Wis. Stat. § 941.30(2), is therefore not a crime of violence for the specific purpose of the *658career-offender guideline. Because Hill has only one prior felony conviction of a crime of violence, he is not a career offender under U.S.S.G. § 4Bl.l(a)(3) and must be resentenced.
Hill also raises a challenge to the calculation of his criminal history points. He argues that his § 941.30(2) conviction should not count because the conduct underlying that offense stemmed from his involvement in the racketeering operation. “When calculating a defendant’s criminal history category, a district court may not consider prior convictions for acts which constitute relevant conduct — conduct that was part of the instant offense.” United States v. Bryant, 557 F.3d 489, 503 (7th Cir.2009); see U.S.S.G. § 4A1.2 cmt. n. 1; United States v. Olson, 408 F.3d 366, 373 (7th Cir.2005).
Here the court considered only whether the specific conduct underlying the § 941.30(2) conviction was charged as a predicate act. in the racketeering indictment. But the court must consider all the evidence and “make specific factual findings regarding the underlying conduct,” and then determine the “relatedness” of the offenses on that basis. Bryant, 557 F.3d at 503. On remand, the court should take the opportunity to squarely address Hill’s contention that the conduct underlying his § 941.30(2) conviction was carried out in furtherance of the racketeering operation.
For the reasons given above, we VACATE the sentence and REMAND the case for resentencing consistent with this order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478959/ | ORDER
A grand jury charged Jason Tolen with second degree murder for beating a fellow inmate to death. The case went to trial and a jury convicted Tolen of the lesser included offense of voluntary manslaughter. After adding an enhancement for obstruction of justice, the district court sentenced him to 180 months imprisonment. Tolen now appeals.
Tolen and Jason Katz were federal inmates at the Metropolitan Correctional Center (MCC) in Chicago, Illinois. Both men were serving the last few months of their sentences. On March 11, 2008, Tolen and Katz attended a prerelease class, the purpose of which was to educate inmates about issues they could face when they reentered society. Prior to class, an inmate asked Tolen if he had told on another inmate for stealing laundry. Tolen responded that “He told on me, so I’m gonna tell on him.” After the instructor came into the room, a different inmate informed the class that correctional officers were upstairs shaking down (thoroughly searching) the unit and that Tolen had gotten them all in trouble. Tolen then heard Katz say we just got done talking about “that snitch-ass bitch.” Tolen took offense to Katz using the word “bitch,” so Tolen said “What?” to Katz. Katz responded, “Yeah, you heard me, you snitch-ass bitch.” Tolen told Katz to “say it to my face, bitch,” and “I’ll fuck you up.” Katz told Tolen he did not want to fight and he didn’t stand up as Tolen continued to yell at him. Even though Katz seemed to be backing down, Tolen walked to Katz’s seat and punched him in the face about 20 times. The blows caused massive hemorrhaging in Katz’s brain. Katz received CPR and medical attention before dying the next day.
A grand jury indicted Tolen for second degree murder and the case proceeded to a jury trial. Wfiiile testifying in his own defense, Tolen admitted that he pummeled Katz in response to being called a bitch but denied that he intended to hurt him. The jury acquitted Tolen of murder in the second degree and convicted him of the lesser included offense of voluntary manslaughter. At sentencing, the district *660court added two offense levels for obstruction of justice based on Tolen’s testimony that he did not intend to harm Katz. The district court then sentenced him to a term of 180 months, which is within the sentencing guideline range.
Tolen raises two issues on appeal. First, he contends that the district court abused its discretion by declining to instruct the jury concerning the additional lesser included offense of involuntary manslaughter. Second, he argues that the district court committed clear error by imposing a two-level enhancement for obstruction of justice based on his testimony that he did not intend to hurt Katz even though he repeatedly punched him in the face.
We review the district court’s refusal to instruct the jury regarding the requested lesser included offense for abuse of discretion. United States v. Hill, 196 F.3d 806 (7th Cir.1999). This means we will only reverse “where no reasonable person could take the view adopted by the trial court.” United States v. Hernandez, 330 F.3d 964, 971 (7th Cir.2003) (quoting United States v. Hughes, 970 F.2d 227, 232 (7th Cir.1992)).
A defendant is entitled to a lesser included offense instruction if “there is enough evidence to permit a rational jury to conclude that he was guilty of it.” Hill, 196 F.3d at 807. To find a defendant guilty of involuntary manslaughter, a jury-must find that he killed without malice, “[i]n the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.” 18 U.S.C. § 1112(a). Under 18 U.S.C. § 113(6), any assault within the territorial jurisdiction of the United States which results in serious bodily injury to the victim is a felony. The parties stipulated to the MCC’s territorial jurisdiction within the United States, and Tolen beat Katz to death, undoubtedly a serious injury. Therefore, no rational jury could find that the first clause of the statute applies.
In order for the second clause to apply, the defendant must have acted lawfully. Typically, this clause applies when a person engages in self-defense — a lawful act— but takes it too far. The facts make it very clear that Tolen did not kill Katz in self-defense or during any other lawful act. Tolen repeatedly punched Katz in the face after Katz told him he did not want to fight, and Katz did not stand up to prepare to defend himself as Tolen yelled at him.
Furthermore, Tolen continued punching Katz even though Katz did not fight back. Since there was no evidence from which a rational jury could have found Tolen guilty of involuntary manslaughter, the district court did not abuse its discretion by refusing to give the additional lesser included offense instruction. And on this record, Tolen was fortunate that the district court gave the jury the option of finding him guilty of voluntary manslaughter. He got a good deal with that decision. To ask for more strikes us as a bit greedy.
Tolen also maintains that the district court erred by adding two offense levels for obstruction of justice because he did not “willfully intend to testify falsely” by claiming that he did not intend to harm Katz. We review the district court’s finding for clear error.
Tolen argues that he did not intend to harm Katz but only intended to shut him up. Prior to the assault, however, Tolen told Katz that he “will fuck you up.” As mentioned, Katz told Tolen that he did not want to fight and he did not stand up to defend himself as Tolen yelled at him. Tolen also continued punching Katz even though Katz never threw a punch himself. He beat Katz so severely that Katz suffered severe head trauma with massive *661hemorrhaging and a displaced artery at the base of his skull. Despite what Tolen says, it’s clear from his actions that he intended to harm Katz. Therefore, the district court did not commit clear error by applying the two-level enhancement for obstruction of justice.
For these reasons, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478961/ | ORDER
Aníbal Pineda-Areola pleaded guilty to conspiracy to distribute methamphetamine, cocaine, and marijuana. See 21 U.S.C. §§ 846, 841(a)(1). In his plea agreement, he waived his right to appeal the conviction and sentence, but reserved the right to appeal the denial of a motion to suppress evidence regarding a mobile phone seized from him during his arrest. He was sentenced to 120 months’ imprisonment. Pineda-Areola filed a notice of appeal, but his appointed counsel now seeks to withdraw because he cannot identify any nonfrivolous ground for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We confine our review to the potential issues identified in counsel’s facially adequate brief, see United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002), and Pineda-Areola’s submission in response, see CIR. R. 51(b).
As part of an investigation into suspected drug trafficking in Louisville, Kentucky and southern Indiana, law enforcement officers tapped the phone of a drug dealer who made drug-related calls to a mobile phone used by Pineda-Areola. During these calls Pineda-Areola was identified only as “Japo.” In a sequence of these calls, the drug dealer set up a transaction with Pineda-Areola at a McDonald’s parking lot in Mumfordville, Kentucky. Officers carried out a surveillance of the transaction and saw the drug dealer’s courier remove a blue cooler from Pineda-Areola’s truck and place it in the courier’s vehicle. The officers approached Pineda-Areola (and others) and asked them for identification. The agents checked with the Bureau of Immigrations and Customs Enforcement and were told that Pineda-Areola was in the United States illegally and that he should be brought to Louisville for questioning. After the officers patted-down Pineda-Areola, they seized a mobile phone that was in his front pants pocket. When an officer used another phone to dial the phone number used by “Japo,” the phone vibrated. Pineda-Areola was arrested for being in the United States illegally, and was subsequently charged with conspiracy to distribute controlled substances. He moved to suppress evidence related to the phone on grounds that the officers did not have reasonable suspicion to stop him, probable cause to arrest him, and permission to “search” his phone by dialing “Japo’s” number. He later pleaded guilty to the charges.
Pineda-Areola suggests in his Rule 51(b) response that he is dissatisfied with his plea agreement and did not understand its significance. But any challenge to Pineda-Areola’s plea would be frivolous. The district court conducted a thorough colloquy under Fed.R.Crim.P. 11, and we see no error, plain or otherwise. (Our review would be for plain error because Pineda-Areola did not move to withdraw his plea in the district court. United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Sura, 511 F.3d 654, 658 (7th Cir.2007).)
Counsel considers whether Pineda-Areola can raise any challenge to the district court’s denial of his motion to suppress. He first examines whether Pineda-*663Areola could argue that the district court wrongly refused to suppress evidence of the phone because the stop and search were not supported by reasonable suspicion as required by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Counsel correctly concludes that this argument would be frivolous given the circumstances leading to the stop. It is proper for an officer to conduct a Terry stop when the officer is “able to point to ‘specific and articulable facts’ that suggest criminality so that he is not basing his actions on a mere hunch.” United States v. Booker, 579 F.3d 835, 838 (7th Cir.2009) (quoting Jewett v. Anders, 521 F.3d 818, 823 (7th Cir.2008)). Here the law enforcement officers had tapped phone conversations between “Japo” and the drug dealer concerning drug transactions. From these calls they learned that “Japo” had set up a drug transaction to occur at the McDonald’s parking lot on June 5, 2007. At the parking lot the officers saw the drug dealer’s courier transfer a cooler from Pineda-Ar-eola’s vehicle to his own vehicle. Given that the officers knew the day and location of a planned drug deal, followed the drug dealer’s courier to the location on that day, and observed the drug dealers exchange a cooler, the officers had much more than a “mere hunch” on which to conclude that a crime was being committed.
Counsel next examines whether Pineda-Areola could challenge the district court’s conclusion that the officers had probable cause to arrest him for an immigration violation. But any such challenge would be frivolous. An officer was informed by an agent -with Immigration Customs Enforcement that Pineda-Areola was in the United States illegally and consequently should be taken into custody. Once the officer had reasonably trustworthy information (from the ICE agent) that Pineda-Areola was committing a crime (being in the United States unlawfully), the officers had probable cause to arrest him. United States v. Burnside, 588 F.3d 511, 517-18 (7th Cir.2009); United States v. Brown, 366 F.3d 456, 458-59 (7th Cir.2004).
Counsel also examines whether Pineda-Areola could challenge the district court’s finding that dialing the phone number associated with “Japo” (and thereby identifying him as Pineda-Areola) was not a search under the Fourth Amendment. But counsel correctly concludes that any such challenge would be frivolous. Even if dialing a phone were considered a search, the officers were entitled to search Pine-da-Areola and the phone incident to his lawful arrest. See United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); United States v. Ortiz, 84 F.3d 977, 984 (7th Cir.1996) (upholding search of contents of pager as incident to lawful arrest); United States v. Finley, 477 F.3d 250, 258-60 (5th Cir.2007) (upholding search of mobile phone’s call records and text messages as incident to lawful arrest).
Finally, Pineda-Areola suggests in his Rule 51(b) response that he was dissatisfied with counsel’s performance in the district court. To the extent, however, that he wishes to pursue a claim of ineffective assistance, that is best done in a collateral proceeding where the record can be more fully developed. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005).
The motion to withdraw is Granted, and the appeal is Dismissed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478963/ | PER CURIAM.
Andrew Gladue and Beatrice Vivier appeal the district court’s2 adverse grant of summary judgment in their Federal Tort Claims Act action. Upon de novo review, see Johnson v. Blaukat, 453 F.3d 1108, 1112 (8th Cir.2006), we conclude summary judgment was proper for the reasons the district court stated. We affirm. See 8th Cir. R. 47B.
. The Honorable Daniel L. Hovland, United States District Judge for the District of North Dakota. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478965/ | PER CURIAM.
Iowa inmate Stanley Hart appeals the district court’s1 order dismissing without prejudice his 42 U.S.C. § 1983 complaint against prison officials. We conclude that dismissal was proper for the reasons stated by the district court. See 42 U.S.C. § 1997e(a) (exhaustion of administrative remedies). Accordingly, we affirm. See 8th Cir. R. 47B.
. The Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478968/ | MEMORANDUM **
California state prisoner Alonzo L. Taylor appeals from the district court’s order *750denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2258, and we affirm.
Taylor contends that the district court erred when it determined that he entered his guilty plea knowingly and voluntarily. Any error that may have occurred in failing to notify Taylor of the mandatory restitution fine did not have a “substantial and injurious effect or influence” on the outcome of the case. See Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478970/ | MEMORANDUM **
Timothy Bruce Ruddle appeals from his 210-month sentence imposed following a guilty-plea conviction for receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Ruddle contends that the district court procedurally erred by failing adequately to explain the sentence imposed and that the sentence, at the high-end of the Sentencing Guidelines, is substantively unreasonable. The record reflects that the district court adequately explained the sentence. See United States v. Perez-Perez, 512 F.3d 514, 516-17 (9th Cir.2008). Further, in light of the totality of the circumstances and the factors set forth in 18 U.S.C. § 3553(a), the sentence is not unreasonable. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478999/ | ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479001/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479003/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478969/ | MEMORANDUM **
California state prisoner Alonzo L. Taylor appeals from the district court’s order *750denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2258, and we affirm.
Taylor contends that the district court erred when it determined that he entered his guilty plea knowingly and voluntarily. Any error that may have occurred in failing to notify Taylor of the mandatory restitution fine did not have a “substantial and injurious effect or influence” on the outcome of the case. See Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478971/ | MEMORANDUM **
Timothy Bruce Ruddle appeals from his 210-month sentence imposed following a guilty-plea conviction for receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Ruddle contends that the district court procedurally erred by failing adequately to explain the sentence imposed and that the sentence, at the high-end of the Sentencing Guidelines, is substantively unreasonable. The record reflects that the district court adequately explained the sentence. See United States v. Perez-Perez, 512 F.3d 514, 516-17 (9th Cir.2008). Further, in light of the totality of the circumstances and the factors set forth in 18 U.S.C. § 3553(a), the sentence is not unreasonable. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478973/ | MEMORANDUM **
Miguel Angel Negron appeals from the 70-month sentence imposed following his guilty-plea conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Negron contends that the district court procedurally erred by failing to consider and discuss certain facts and factors and also contends that the sentence is substan*789tively unreasonable. The record reflects that the district court did not procedurally err, and the sentence is not substantively unreasonable in light of the totality of the circumstances and the factors set forth in 18 U.S.C. § 3553(a). See Gall v. United States, 552 U.S. 38, 49-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); Rita v. United States, 551 U.S. 338, 356-59, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Carty, 520 F.3d 984, 992-93 (9th Cir.2008) (en banc).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478974/ | MEMORANDUM **
Dennis J. Sittman appeals from the district court’s judgment revoking a previous term of supervised release and imposing a term of imprisonment and a new term of supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Sittman contends that the district court proeedurally erred by failing to explain its reasons for imposing another term of supervised release and contends that the new term of supervised release is substantively unreasonable. The record reflects that the district court did not proeedurally err, and the sentence is not substantively unreasonable in light of the totality of the circumstances and the factors set forth in 18 U.S.C. § 3553(a). See Gall v. United States, 552 U.S. 38, 49-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Carty, 520 F.3d 984, 992-93 (9th Cir.2008) (en banc); United States v. Miqbel, 444 F.3d 1173, 1181-82 (9th Cir.2006).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478976/ | ORDER AND JUDGMENT*
WADE BRORBY, Circuit Judge.
After examining the briefs and appellate record, this panel has determined unani*834mously that oral argument would not materially assist in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Defendant-Appellant Jason Claycomb appeals his convictions on grounds the district court abused its discretion and violated his due process rights in denying his motion for a continuance of his trial. He also claims the government violated his Fifth Amendment due process rights when it “vouched” for the truth and veracity of cooperating witness testimony by asking questions regarding its “golden rule.” We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
I. Factual and Procedural Background
From approximately November 2006 to July 2007, Mr. Claycomb was incarcerated at the Larimer County Detention Center in Fort Collins, Colorado, on charges unrelated to the instant case. While housed at that facility, Mr. Claycomb used the detention center’s telephone on an average of at least two hours a day, spent over $14,094.77 on telephone calls, and made a total of 3,558 successful calls. Each time Mr. Claycomb made a telephone call from the detention center he received a recorded warning stating, “This call may be recorded and it may be subject to monitoring at any time.” All of Mr. Claycomb’s calls were tracked and recorded and later transferred to disks. The incriminating telephone recordings established Mr. Clay-comb arranged drug deals while incarcerated at the detention center by instructing individuals on the sale of methamphetamine and cocaine transported from Fort Collins to Gillette, Wyoming.
As a result of Mr. Claycomb’s telephone calls, in January 2007 the Wyoming Division of Criminal Investigation began an investigation into a drug conspiracy involving several individuals selling, buying, and transporting drugs from Fort Collins to Gillette under Mr. Claycomb’s direction. On September 20, 2007, a superceding indictment issued in which the government charged Mr. Claycomb and others with one count of conspiring to possess with intent to distribute and distribute methamphetamine between October 2005 and July 2007, in violation of 21 U.S.C. §§ 841(a)(1) and 846. On November 26, 2007, the district court entered a discovery order in conjunction with Federal Rule of Criminal Procedure 16, including a provision requiring the government to provide Mr. Clay-comb any item the government intended to use in its case-in-chief at trial. Fed. R.Crim.P. 16(e). Thereafter, on January 17, 2008, a second superceding indictment followed which retained the count against Mr. Claycomb and the others, but added additional defendants. After the other defendants pleaded guilty, a third superced-ing indictment issued on September 25, 2008, charging only Mr. Claycomb with conspiring to possess with intent to distribute and distributing methamphetamine and cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, as well as two firearm counts not previously included.
Sometime in December 2007, pursuant to the Rule 16 discovery order, the government provided to Mr. Claycomb’s counsel what it believed were all of his telephone recordings made at the detention center. Then, in April 2008, the government provided Mr. Claycomb and his counsel a spreadsheet listing every telephone call he made from the detention center as well as a disk containing only the telephone recordings the government intended to use at trial. Four months later, on August 15, 2008, Mr. Claycomb appeared before the *835district court at a change of plea hearing, but after learning how the advisory United States Sentencing Guidelines may apply in his case, including an increase in his base offense level for his leadership or managerial role in the conspiracy, he requested additional time to consider his plea, which the district court granted.
On August 27, 2008, at his next scheduled plea hearing, Mr. Claycomb’s counsel requested a continuance, explaining Mr. Claycomb had not reviewed the telephone recordings provided but wanted to listen to all of the calls he made from the detention center. His counsel explained a continuance was needed because: (1) Mr. Clay-comb had previously attempted to listen, at least one time, to the disks provided, but because one of the conversations with a friend, since deceased, upset him, he asked counsel to stop the recordings; (2) the initial plea hearing regarding his leadership role “concerned” Mr. Claycomb because he had not listened to the disks; (3) while counsel tried to impress on Mr. Claycomb three months earlier the seriousness of his situation, Mr. Claycomb only now understood the ramifications; (4) Mr. Claycomb insisted on listening to all of his telephone recordings rather than a condensed version of them; (5) it was important for Mr. Claycomb to listen to all of the telephone recordings as they could contain evidence to help prepare a sound defense; and (6) counsel arranged with jail staff for Mr. Claycomb to listen to the recordings on an MP3 player provided by counsel, but because of restrictions on use of a private room Mr. Claycomb could only listen to them a few hours at a time.
In turn, the government objected to a continuance, explaining Mr. Claycomb had several months to listen to the recordings of his telephone calls and that the summary disk of those telephone calls it intended to use at trial would only take an hour and a half of listening time. The district court found Mr. Claycomb was not prepared to enter a guilty plea, concluded the hearing, and set a trial date.
Two months later, on October 16, 2008, the parties gathered for another hearing to discuss several pending motions, including a bond hearing related to Mr. Claycomb’s requested release from the detention facility for the purpose of listening to the recordings. Mr. Claycomb’s counsel advised the district court that counsel had reviewed many of the calls he thought were important and those the government identified as important, and an iPod was provided to Mr. Claycomb to listen to the disks, but too many telephone calls existed for Mr. Claycomb to listen to while incarcerated. Counsel then requested Mr. Claycomb be released on bond to a transitional facility so he could listen to all his recorded telephone calls at his defense counsel’s office.
In making his request, Mr. Claycomb’s counsel provided a letter from a staffer at the detention center which actually disclosed that while Mr. Claycomb asked to listen to the telephone recordings on a daily basis, the staffer had seen Mr. Clay-comb only leave his cell twice in one month to listen to the recordings. In addition, unrebutted evidence presented by a United States Marshal established Mr. Clay-comb had not listened to his iPod since September 6, 2008, and that while staff had attempted to wake him several mornings for the purpose of listening to his iPod, he had refused to get up. As a result, over the prior two weeks staff had quit attempting to wake him. The district court denied Mr. Claycomb’s bond request but issued an order instructing detention center staff to: (1) give him the opportunity to listen to the telephone recordings through a playing device furnished by counsel; (2) make the playing device available to him every day in his jail cell or a *836private setting at the detention center; and (3) wake him every morning at 8:00 to listen to the telephone recordings for an eight-hour period each day.
Two months later, on December 2, 2008, and just prior to the commencement of the trial set for that day, Mr. Claycomb’s counsel again requested additional time to listen to the telephone recordings. According to counsel, while he received disks of the recordings, he and Mr. Claycomb did not discover until the evening before trial that the disk which supposedly contained all of the calls from November 2006 through February 1, 2007, only contained three days of recordings, from January 25 to 28, 2007. In turn, the government admitted the disk it provided to defense counsel in December 2007, which it believed contained those telephone calls, did not contain all of them. However, it also explained that in April 2008 — at least seven months prior to trial, it provided defense counsel a spreadsheet of every telephone call recorded, as well as the disk containing only those telephone calls it considered part of its case-in-chief and intended to use at trial. It also noted that it allowed defense counsel access to every item of evidence in the case, and defense counsel spent a week reviewing the government’s evidence.
Mr. Claycomb’s counsel admitted he received the disk with the telephone calls the government intended to use at trial and did not object to the government’s use of those recordings. However, counsel again requested more time to review the other inadvertently omitted telephone recordings which he and Mr. Claycomb did not realize were missing until the night before trial, explaining, “[tjhere might be something in there that I can use,” and “[m]y client would like to hear them to see if there’s anything in there I can use in his defense.” In addition, while Mr. Claycomb’s counsel admitted he possessed the spreadsheet identifying every call from November through January, he stated he did not realize “until last night” that it corresponded to every recorded call. The district court disagreed, stating:
Well, I am not going to give you an objection. I think it is your own fault. I think that you should have compared the logs to the phone transcripts and also to the audio of it. I would think that would be the first thing you would do, not the last.
If you or Mr. Claycomb haven’t gotten around to hearing them, that’s nothing I can help.
As to Mr. Claycomb’s counsel’s argument something might exist in the telephone recordings to use in Mr. Claycomb’s defense, the district court stated, “I’m sorry .... but you’ve had plenty of time.” Accordingly, it denied Mr. Claycomb’s request for a continuance and the parties proceeded to trial.
During the trial, the government called as witnesses five law enforcement or detention facility personnel and seven individuals involved in the conspiracy who pleaded guilty. It also introduced only the telephone recordings designated for its case-in-chief which were provided to Mr. Claycomb’s counsel on a disk in April 2008. Those recordings were used in conjunction with the testimony of at least three cooperating witnesses for the purpose of proving Mr. Claycomb’s guilt. Specifically, Mr. Claycomb’s girlfriend, Mia Brown, identified her plea agreement and the provision stating her understanding a reduction of her sentence could occur based on the district court’s determination of her assistance to the government, including the government’s evaluation of her truthfulness. She also testified she spoke with Mr. Claycomb every day while in jail and he instructed her on the purchase and sale *837of the drugs as well as directed her to obtain his 9mm machine gun from the location where he stored it before police found it. At the end of her testimony, she listened to and identified calls involving herself and others with Mr. Claycomb while he was at the detention center — all of which corroborated her earlier testimony that he instructed her and others with respect to multiple drug transactions. She admitted she lied in her initial statements to law enforcement officers, but when questioned on redirect examination about what the United States Attorney’s Office termed the “golden rule,” she stated she understood it was “[t]o always tell the truth.”
Similarly, other cooperating witnesses involved in the same drug conspiracy corroborated Ms. Brown’s or other witnesses’ testimony, testifying as to: (1) Mr. Clay-comb’s role in selling drugs transported from Fort Collins to Gillette; (2) the fact he continued to direct those drug sales from jail through his girlfriend and others; and/or (3) the quantity of cocaine and methamphetamine Mr. Claycomb was responsible for selling. Like Ms. Brown, two other witnesses identified incriminating telephone recordings made between Mr. Claycomb, themselves, and others while he was incarcerated. In addition to Ms. Brown, the government also asked three of the six other cooperating witnesses to explain their understanding of the “golden rule,” which they said was to tell the truth, and all of the cooperating witnesses were asked to identify their plea agreements and the assistance to government provision for a reduction in sentence and all indicated it required them to tell the truth. One witness also testified he traded a machine gun to Mr. Claycomb in exchange for methamphetamine.
Following the evidence presented at trial, a jury found Mr. Claycomb guilty of all three counts, including conspiring to possess with intent to distribute and distributing methamphetamine and cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846; possessing a machine gun in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(l)(B)(ii); and possessing a firearm not registered in the National Firearms Registration and Transfer Record in violation of 26 U.S.C. §§ 5841, 5845(a), and 5861(d). The district court then sentenced Mr. Claycomb to 360 months imprisonment on the conspiracy count; 360 months imprisonment on the machine gun count, to run consecutively to the sentences for the other counts; and 120 months imprisonment on the gun registration count, to run concurrently with the other sentences.
II. Discussion
A. Denial of Motion for Continuance of Trial
Mr. Claycomb now appeals his convictions on grounds the district court abused its discretion and violated his due process rights by denying his motion for a continuance of the trial. In support of his claim, Mr. Claycomb contends the excluded telephone recordings may contain exculpatory evidence, including possible instances where he “opposed numerous of the drug deals proposed by the other participants .... ” By not listening to those tape recordings, Mr. Claycomb claims he was prejudiced because he had insufficient time to prepare a defense, prepare for his own potential testimony, or investigate and prepare a challenge to those telephone recordings the government used at trial. While he admits he was a party to the recordings in question, Mr. Claycomb suggests the tape recordings of his telephone calls were made too far in the past for him to recall their contents. Additionally, he claims the district court acted unreasonably and arbitrarily in denying a continuance because *838neither he nor his counsel could have “gotten around to hearing” all the telephone calls because the government never provided them.
In response, the government argues: (1) neither Mr. Claycomb nor his counsel were diligent in reviewing the telephone recordings, and, had they been diligent, it would have hastened their eve-of-trial discovery that some of the recorded telephone calls were missing; (2) it is unlikely Mr. Clay-comb would have listened to the recordings in the event of yet another continuance, given his history of not listening to them; (3) Mr. Claycomb’s request for a continuance of unspecified time on the day of the trial would have caused the government, its witnesses who traveled from Colorado, the jurors, and the court great inconvenience; and (4) Mr. Claycomb failed to demonstrate a need for a continuance or that he suffered any harm by denial of his request because he insufficiently asserted what he expects to discover in those recordings.
In addressing the issues presented on appeal, we first turn to our standard of review and the principles underlying motions for continuance. We review a district court’s denial of a motion for continuance for abuse of discretion, “assigning error only if the district court’s decision was arbitrary or unreasonable and materially prejudiced the defendant.” United States v. Apperson, 441 F.3d 1162, 1204 (10th Cir.2006) (internal quotation marks, citation, and alteration omitted). We have said that whether a district court’s denial of a motion for continuance is arbitrary or unreasonable depends, in part, on:
[1] the diligence of the party requesting the continuance; [2] the likelihood that the continuance, if granted, would accomplish the purpose underlying the party’s expressed need for the continuance; [3] the inconvenience to the opposing party, its witnesses, and the court resulting from the continuance; [and] [4] the need asserted for the continuance and the harm that [the] appellant might suffer as a result of the district court’s denial of the continuance.
United States v. Rivera, 900 F.2d 1462, 1475 (10th Cir.1990) (internal quotation marks and citation omitted).
As the government contends, neither Mr. Claycomb nor his counsel acted diligently in reviewing the disk of telephone recordings in their possession since December 2007 — a whole year prior to commencement of the trial. During that time, the district court allowed at least two prior continuances for them to review the recordings provided, and the government furnished a spreadsheet showing all of Mr. Claycomb’s telephone calls. While Mr. Claycomb claims neither he nor his counsel could have “gotten around to hearing” all the telephone calls because the government never provided them, they would have readily discovered, well before trial, that some of the recorded telephone calls were inadvertently missing had they only listened to the disks provided and/or compared those calls with the spreadsheet. Instead, the record is replete with evidence Mr. Claycomb simply failed to bother to listen to the tapes, despite the opportunities afforded him. This, and the fact he and his counsel did not discover missing telephone calls until the eve of trial, demonstrates a lack of diligence sufficient to support the district court’s denial of another continuance.
Next, we consider the likelihood a continuance, if granted, would accomplish the purpose underlying the party’s expressed need for the continuance. In this case, we agree with the government that it is highly unlikely Mr. Claycomb would have listened to the recordings in the event of yet another continuance, given his history of not availing himself of the many prior op*839portunities to listen to them. While his counsel may have listened to them had a continuance been granted, that alone is insufficient, when compared with the other circumstances presented in this case, to establish an abuse of discretion by the district court in denying the motion for continuance.
Next, Mr. Claycomb did not move for a continuance until the day of the trial, and, in doing so, he did not specify the amount of time needed for such a continuance. The government argues that granting a continuance on the morning of the trial would have caused the court, jury, government, and its cooperating witnesses, who apparently traveled from Colorado, great inconvenience. As we have stated before, “any continuance granted practically on the eve of trial inevitably will disrupt the schedules of the court, the opposing party, and the witnesses who have been subpoenaed or who have voluntarily arranged their schedules to attend the trial,” as well as jurors. Id. We have also held that where the motion for continuance does not specify the amount of time needed to prepare adequately for trial, “the resulting uncertainty” is an additional inconvenience to the government and its witnesses. Id. at 1475-76. This case is no exception. Under the circumstances presented, it is apparent a continuance would have caused inconvenience to those involved in the trial.
Finally, with regard to the fourth factor, Mr. Claycomb must show “the need asserted for the continuance and the harm that [he] might suffer as a result of the district court’s denial of the continuance.” Id. at 1475. Here, as the government contends, Mr. Claycomb fails to demonstrate a need for a continuance or any harm caused by its denial because he has not asserted what he expects to discover in those recordings. Instead, on appeal, Mr. Claycomb merely contends the telephone recordings may contain exculpatory evidence, including possible instances where he “opposed numerous of the drug deals proposed by the other participants.... ” However, even if the missing recordings revealed his opposition to some drug deals, such conduct would not exculpate him from responsibility for those drug deals the evidence in the record overwhelmingly establishes he directed and for which he was convicted and sentenced. Given such overwhelming evidence, Mr. Claycomb has not explained how a continuance would have helped him prepare a defense, prepare for his own potential testimony, or investigate and prepare a challenge to the telephone recordings the government did use at trial, which he had full access to seven months in advance. We also note that at the time of the trial, when the district court considered the motion, the only reasons Mr. Claycomb’s counsel could muster for a continuance consisted of assertions that “[t]here might be something in there that I can use,” and “[m]y client would like to hear them to see if there’s anything in there I can use in his defense.” This is woefully insufficient to show the need asserted for a continuance and the harm one might suffer as a result of the district court’s denial of a continuance.
While we do not condone the government’s inadvertent failure to provide all of the telephone recordings to Mr. Claycomb, he has failed to show any material prejudice caused by the error or the denial of his motion for continuance. For all of the reasons stated, we conclude the district court did not act arbitrarily or unreasonably or otherwise abuse its discretion in denying the motion for continuance.
B. Golden Rule Violation
In his appeal, Mr. Claycomb also argues the government violated his Fifth Amendment right to due process when it “vouched for four of its critical witnesses *840by obtaining testimony that they were adhering to ‘the golden rule’ ” to tell the truth. In support, Mr. Claycomb points out the government introduced into evidence each of their plea agreements containing provisions their cooperation would result in lesser sentences if the government determined they told the “truth.” While he concedes admitting plea agreements is permissible, he contends the government’s questions to witnesses about the “golden rule” implicitly suggested that it found their testimony truthful, causing impermissible prosecutorial vouching as to the truthfulness of those witnesses. According to Mr. Claycomb, such witness testimony on the “golden rule” misled the jury and prejudiced him because the case against him depended on the credibility of those witnesses. Because he did not object to the government’s questioning of the witnesses on the “golden rule,” he concedes the standard of review is for plain error but summarily contends he meets this standard because plain error occurred which prejudicially affected his substantial rights depriving him of a fair trial and seriously affected the fairness, integrity, and public reputation of his judicial proceeding.
As Mr. Claycomb acknowledges, he did not object to the admission of the government’s questions regarding the “golden rule,” so we review the issue of such admission for plain error. See United States v. Harlow, 444 F.3d 1255, 1261 (10th Cir.2006). To establish plain error, Mr. Clay-comb must show: (1) an error; (2) that is plain; (3) that affects substantial rights so the outcome of the trial would have been different without the error; and (4) that the error seriously affected the fairness, integrity, or public reputation of the judicial proceeding. See id. All of these requirements must be established before a defendant can meet his burden of establishing plain error.
Having set out our standard of review, we turn to the legal principles involved in considering Mr. Claycomb’s vouching argument. Vouching errors are viewed “in light of the context of the entire proceeding, including the strength of any curative instructions and the closeness of the case.” Id. (citations omitted). We have said it is permissible for a prosecutor to introduce a witness’s plea agreement including a truthfulness provision and to discuss that provision to make sure the witness is aware of the consequences of failing to tell the truth and for the purpose of heading off any claim the witness’s testimony is suspect because of the plea agreement. See id. at 1262. “Use of the ‘truthfulness’ portions of plea agreements becomes impermissible vouching only when the prosecutors explicitly or implicitly indicate that they can monitor and accurately verify the truthfulness of the witness’ testimony.” Id. (internal quotation marks, citation, and alteration omitted).
In this case, it is clear the government only asked the witnesses to identify their plea agreements and the assistance to government or “truthfulness” provisions concerning a reduced sentence and to explain if they knew what the “golden rule” was. A review of their testimony does not in any way indicate the government vouched for the credibility of those witnesses or the veracity of their testimony— either explicitly or implicitly. Thus, we discern no error.
However, even if the government’s questions on the “golden rule” could be interpreted as vouching as to their credibility and constitute plain error, it is clear Mr. Claycomb has not demonstrated the error affected his substantial rights. Instead, a plethora of telephone recordings involving Mr. Claycomb, which he admits were provided to him seven months before trial and introduced into evidence, clearly *841established his managerial role in the drug conspiracy at issue and the location and his possession of the 9mm machine gun.1 Thus, even if plain error had occurred concerning the government’s vouching of witness testimony, Mr. Claycomb’s own telephone recordings overwhelmingly support his convictions. Thus, he has not shown, but for the alleged error, the outcome of the trial would have been different. Having made this determination, we need not address the fourth requirement of our plain error review, other than to note Mr. Clayeomb has also failed to establish the alleged error, if any, seriously affected the fairness, integrity, or public reputation of his judicial proceeding.
III. Conclusion
For the aforementioned reasons, we AFFIRM Mr. Claycomb’s convictions.
This order and judgment is not binding precedent except under the doctrines of law of the *834case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.
. In addition, the government contends Mr. Claycomb’s statements to a law enforcement detective implicated him in the distribution of drugs and his possession of the 9mm machine gun, but it does not indicate where in the record such statements were introduced into evidence. Our review of the record establishes the detective, who testified at trial on the recording of Mr. Claycomb's telephone calls at the detention center, did not testify as to any statement made to him by Mr. Clay-comb. Therefore, we will not consider any such statements on appeal. It also contends three cooperating witnesses were not asked about the “golden rule," so that Mr. Clay-comb's "golden rule” argument should not pertain to their testimony on their working at his direction in the conspiracy or purchasing methamphetamine and/or cocaine from him. This is correct. Our review of the record establishes each of the cooperating witnesses testified regarding the government assistance provision of their plea agreements, and all indicated it required them to state the truth, but only four specifically testified regarding the "golden rule.” However, even if we did not consider any of the witnesses’ testimony, it makes no difference in the result, given the overwhelming inculpatory evidence relating to the tape recordings themselves. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478980/ | ORDER AND JUDGMENT*
PAUL KELLY, JR., Circuit Judge.
Defendant-Appellant Jonathan Curshen appeals from the district court’s judgment in favor of Plaintiff-Appellee Securities and Exchange Commission (“the SEC”). In 1999, Mr. Curshen made approximately thirty-five anonymous Internet postings about a company called Freedom Golf. As a result of these postings, the SEC brought this civil action against him alleging that he committed securities fraud by: (1) failing to disclose that he had been compensated for promoting Freedom Golf, and (2) hyperlinking to an Investor Report on Freedom Golf that expressed an overly optimistic view of Freedom Golfs financial future. The district court held a bench trial resulting in findings of fact and conclusions of law in support of a judgment: (1) permanently enjoining Mr. Curshen from violating federal securities laws; (2) barring Mr. Curshen from participating in penny stock offerings; and (3) ordering Mr. Curshen to disgorge $66,235 along with an undetermined amount of prejudgment interest. S.E.C. v. Jones, No. 03-cv-00636-WDM-KLM, 2009 WL 539615, at *7-8 (D.Colo. Mar.3, 2009). Our jurisdiction arises under 28 U.S.C. § 1292(a)(1), Jackson v. Ft. Stanton Hosp. & Training Sch., 964 F.2d 980, 987 (10th Cir.1992), and we affirm.
Background
In November 1999, Timothy Miles and Gaylen Johnson merged two companies. The resulting company, Freedom Golf, became publicly traded in December 1999. Jones, 2009 WL 539615, at *2. In February 2000, Miles contacted Mr. Curshen and Carter Allen Jones about becoming stock promoters for Freedom Golf. Id. Jones agreed to promote the company and was paid with warrants for the purchase of Freedom Golf stock. Id. Based on numbers provided by Johnson, Jones prepared an “Investor Report” for Freedom Golf that projected rapidly increasing revenues with profits of $1.6 million in 2000, $4.5 million in 2001, and $13.5 million in 2002. Id. at *3. Johnson testified that these numbers were realistic but only if an infomercial was produced and marketed. Id. Without the infomercial, Johnson believed the projections were not realistic. Id. In the end, Freedom Golf was unable to raise enough funding to produce the infomercial. Id. Regardless, Jones publicly distributed the Investor Report despite being aware of *875Freedom Golfs poor financial condition and its minimal sale of golf clubs. Id. at *2.
Mr. Curshen also agreed to promote Freedom Golf. Id. at *3. He told Jones that “he had buyers who would follow his recommendation to purchase Freedom Golf stock and drive up the price.” Id. at *3. He admitted to posting Internet messages under various screen names about Freedom Golf stock, expressly or implicitly urging people to buy it. Id. at *4. Approximately thirty-five messages about Freedom Golf were posted under Mr. Curshen’s screen names. See, e.g., 4 Aplt.App. 675, 680, 686, 689, 700, 701, 707, 710, 711, 713, 727, 729, 735, 741, 742, 749, 762, 763, 764, 765, 767, 769, 770, 774, 777, 782, 783, 784, 785, 786, 787, 788. In one of the postings, Mr. Curshen provided a hyperlink to Jones’s Investor Report and stated, “For research on [Freedom Golf], look at the Raging Links section or go here [hyperlink to Investor Report].” 4 Aplt.App. 762.
In April 2003, the SEC brought a civil action alleging that Mr. Curshen’s conduct violated 15 U.S.C. § 78j(b) (“ § 10(b)”), 15 U.S.C. § 77q(a) (“§§ 17(a)(l)-(3)”), 15 U.S.C. § 77q(b) (“ § 17(b)”), and 17 C.F.R. § 240.10b-5 (“Rule 10b-5”). The SEC argued that Mr. Curshen’s postings contained material misrepresentations because (1) he had not disclosed that he was not a disinterested observer, but rather was a paid promoter, and (2) he was selling his shares while encouraging the public to purchase the stock. The SEC also posited that Mr. Curshen’s hyperlink to the Investor Report, which he knew or should have known was baseless, was also a material misrepresentation. The SEC sought a permanent injunction enjoining Mr. Curshen from violating federal securities laws, a penny stock bar, disgorgement, prejudgment interest, and a civil penalty.
Mr. Curshen disputed, inter alia, that he had been compensated for posting the messages, that the messages were false (let alone material), and that he had acted with intent. Furthermore, he argued that the messages were not actionable because they were mere puffery — statements of corporate optimism for the future. The district court found Mr. Curshen’s testimony to be “not fully credible” because it was often in direct conflict with other witnesses who had no self-interest in the particular issue. Jones, 2009 WL 539615, at *1.
Relying on a transcript from Miles’s deposition, the district court concluded that Mr. Curshen had been compensated for promoting Freedom Golf. Id. at *3. Specifically, Miles testified during his deposition that he had arranged for Mr. Curshen to be compensated with stock. 2 Aplt.App. 421. Miles transferred 125,000 shares of Freedom Golf stock in February and March 2000 to an account in the name of Triparoo, S.A., a Costa Rican entity. 4 Aplt.App. 658, 664; 5 Aplt.App. 1016-1017. The stated beneficiary on the account was Barry Ross, although Mr. Curshen placed orders for purchases and sales of Freedom Golf stock despite not having trading authority. 5 Aplt.App. 1014-16, 1018-1021. In addition to the transferred shares, records indicate that Mr. Curshen bought at least another 57,200 shares of Freedom Golf for the Triparoo account for $83,523.13. Jones, 2009 WL 539615, at *3; 4 Aplt.App. 662-670. Over the same time period, Mr. Curshen ordered the sale of at least 158,700 shares of Freedom Golf stock for $211,696.76 — a profit of $128,173.63. Jones, 2009 WL 539615, at *3; 4 Aplt.App. 662-671. Mr. Curshen testified that the stock proceeds belonged to Ross and that the payments were repayments for an undocumented loan to Ross. 5 Aplt.App. 1076-78, 1112-14. The district court found that no testimony or other evidence tended to corroborate Mr. Curshen’s testimony *876that the money he received was a loan repayment. Jones, 2009 WL 589615, at *3.
The district court noted that' the full extent of Mr. Curshen’s benefit from the sale of the Freedom Golf stock was not clear. Id. The funds from the Triparoo account were regularly wired to Surety Bank in the Bahamas. Aplee. Supp.App. 1-4. The listed name on the Surety Bank account was Kahn Noonien Singh Management, LC, but the account had Mr. Curshen’s facsimile number on it. 5 Aplt. App. 1025; Aplee. Supp.App. 1-4. After receipt of the funds from the Triparoo account, Surety Bank wired amounts to either Mr. Curshen individually or to Southern Assurance, a privately held company owned and operated by Mr. Curshen. Aplee. Supp.App. 1-4. Specifically, on March 9, April 7, and April 20, 2000, Surety Bank was wired $24,990, $29,990, and $14,990 respectively from the Triparoo account. Aplee. SuppApp. 2-3. Southern Assurance also directly received $15,065 on April 28. Aplee. SuppApp. 3. On March 10, 2000, Surety Bank wired $5,040 to Mr. Curshen. Aplee. SuppApp. 2. On March 16, April 13, and April 28, Surety Bank wired $16,065, $30,065, and $15,065 to Southern Assurance. Aplee. Supp. App. 2-3. In total, at least $66,235 of the net proceeds from the sale of Freedom Golf stock were received by Mr. Curshen either directly or through Southern Assurance. Aplee. SuppApp. 1-4.
The district court found that Mr. Curshen’s promotional efforts were contemporaneous with his compensation and that his actions and omissions were knowingly made. Jones, 2009 WL 539615, at *4. The court found that his omissions and misrepresentations were material because a reasonable investor would consider it important that an individual promoting a stock was being compensated for his activities and was selling the same stock for his own benefit. Id. at *5. The court also concluded that posting the hyperlink to the Investor Report was a material misstatement because “financial projections are matters a reasonable investor would consider,” and Mr. Curshen “knew the dire financial position of Freedom Golf and either knew, or recklessly didn’t know, that the published investor report was essentially baseless because there was a ‘gross disparity’ between Freedom Golfs financial reality and the unrealistic financial prediction based upon a non-existent ‘infomercial.’ ” Id. at *5. Ultimately, the district court concluded that Mr. Curshen’s conduct violated § 10(b), Rule 1 Ob-5, and § 17(a)(l)-(3). In addition, the court concluded that Mr. Curshen violated § 17(b)’s anti-touting provision by failing to disclose his compensation when posting messages promoting Freedom Golf. Id. at *5.
For relief, the district court granted a permanent injunction and a penny stock bar, and ordered disgorgement in the amount of $66,235. Id. at *7-8. The court retained jurisdiction to determine prejudgment interest and to consider a motion for civil penalty. Id. at *8.
As framed by Mr. Curshen, the merits appeal presents the following issues: (1) whether the district court erred in finding that Mr. Curshen made misrepresentations or omissions for purposes of §§ 10(b) and/or 17(a); (2) whether, even if Mr. Curshen did make misrepresentations or omissions, they were material; (3) whether Mr. Curshen could have possessed the requisite scienter if he made no material misrepresentations or omissions in the first instance; (4) whether Mr. Curshen can be liable under § 17(b) where there was no competent evidence that he received compensation for promoting Freedom Golfs stock; and (5) whether the district court erred in ordering Mr. Curshen to disgorge funds and pay damages. Aplt. Br. 1-2.
*877
Discussion
A. Standard of Review
“In an appeal from a bench trial, we review the district court’s factual findings for clear error and its legal conclusions de novo.” Keys Youth Servs., Inc. v. City of Olathe, 248 F.3d 1267, 1274 (10th Cir.2001); see also SEC v. Maxxon, Inc., 465 F.3d 1174, 1180 (10th Cir.2006). “If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson v. City of Bessemer, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (citations omitted). The same standard “applies equally regardless of whether the district court’s factual findings are based on credibility determinations or on documentary evidence.” La Resolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1177 (10th Cir.2009). “When findings are based on determinations regarding the credibility of witnesses, [Fed.R.Civ.P.] Rule 52(a) demands even greater deference to the trial court’s findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.” Anderson, 470 U.S. at 575, 105 S.Ct. 1504 (citation omitted). Whether Mr. Curshen made material misrepresentations and whether he did so with the requisite scien-ter are both “ ‘fact-specific issues.’ ” SEC v. Solv-Ex Corp., 101 Fed.Appx. 271, 272-73 (10th Cir.2004) (citing Schneider v. Vennard, 886 F.2d 1109, 1113 (9th Cir.1989)). With respect to evidentiary rulings, a “district court violates the Rules of Evidence only if it abuses its broad discretion — i.e., only if its ruling is based on a clearly erroneous finding of fact or an erroneous conclusion of law or the ruling manifests a clear error in judgment.” United States v. Oldbear, 568 F.3d 814, 820 (10th Cir.2009) (internal quotation marks and citations omitted). As for the district court’s grant of a permanent injunction and order of disgorgement, we review both for abuse of discretion. Prairie Band Potawatomi Nation v. Wagnon, 402 F.3d 1015, 1019 (10th Cir.2005) (citing SEC v. Pros Int’l, Inc., 994 F.2d 767, 769 (10th Cir.1993)) (permanent injunction); Maxxon, 465 F.3d at 1179 (disgorgement).
B. Liability under §§ 17(a) (l)-(3), § 10(b), and Rule 10b-5
To establish a § 10(b) or Rule 10b-5 violation,1 the SEC must prove that Mr. Curshen made: (1) “a misrepresentation or omission (2) of material fact, (3) with scienter, (4) in connection with the purchase or sale of securities, and (5) by virtue of the requisite jurisdictional means.” SEC v. Wolfson, 539 F.3d 1249, 1256 (10th Cir.2008) (citation omitted). Section 17(a)(1)-(3) requires substantially similar proof with respect to the offer or sale of securities. Id. The primary difference between § 17(a) and § 10(b) lies in the element of scienter. Section 10(b) and § 17(a)(1) require the SEC to establish scienter, whereas negligence is sufficient for § 17(a)(2) and § 17(a)(3). Id. at 1256-57 (citing Aaron v. SEC, 446 U.S. 680, 697, 100 S.Ct. 1945, 64 L.Ed.2d 611 (1980)); Pros Int’l., 994 F.2d at 769.
The focus of the parties’ legal debate concerning these elements is whether *878there was a misrepresentation and, if so, whether it was material and whether there was scienter. The district court noted that there was apparently no dispute that the SEC has proved connectivity and use of jurisdictional means, Jones, 2009 WL 539615, at *4, and these elements are not at issue on appeal.
1. Compensation
Mr. Curshen asserts that the record does not support the district court’s finding that he received compensation for promoting Freedom Golf.Codefendant Miles was out of the country and thus unavailable to testify at Mr. Curshen’s bench trial. During an earlier deposition, Miles testified that he arranged to transfer stock and warrants to Mr. Curshen for promoting Freedom Golf. 2 Aplt-App. 421. Neither Mr. Curshen nor his counsel attended the deposition because it took place before Mr. Curshen was joined in the case. 3 Aplt.App. 620. Mr. Curshen argues that the deposition was the only testimony regarding his alleged involvement with Freedom Golf and that the court abused its discretion by admitting the transcript. Aplt. Br. 27. Over Mr. Curshen’s objection, the district court ruled that Miles’s deposition was admissible under Federal Rules of Evidence 804(b)(1) and 807. 3 Aplt-App. 620-623.
A statement “not specifically covered by [Federal] Rules [of Evidence] 803 or 804 but having equivalent circumstantial guarantees of trustworthiness” is admissible under Rule 807 if the court determines “(A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; [ ](C) ... the interests of justice will best be served by admission of the statement into evidence,” and (D) the proponent provided notice to the adverse party of its intent to offer such evidence. Fed.R.Evid. 807. Exercising its discretion, the district court determined that the deposition transcript satisfied each of the elements of Rule 807. 3 ApltApp. 623 n. 1. Although the court did not comment on trustworthiness, Miles’s deposition had circumstantial guarantees of trustworthiness as it was taken under oath subject to penalty of perjury. F.T.C. v. Kuykendall, 312 F.3d 1329, 1343 (10th Cir.2002), vacated on other grounds, 371 F.3d 745 (10th Cir.2004) (en banc) (holding that consumer declarations and complaints had circumstantial guarantees of trustworthiness because they were made under oath subject to penalty of perjury). The district court determined that Miles’s deposition transcript was offered as evidence of a material fact; notice of intent to offer had been given; the transcript was more probative on points at issue than any other evidence which proponent could procure through reasonable effort; and the interests of justice would best be served by admitting the testimony. 3 Aplt.App. 623 n. 1.
Mr. Curshen argues that the SEC did not satisfy its burden of demonstrating that Miles’s prior testimony was the most probative evidence reasonably available because the district court did not force the SEC to establish that the testimony was unavailable from any other witness or source. Aplt. Br. 27 (citing United States v. Balfany, 965 F.2d 575, 582 (8th Cir.1992)) (noting that the probative value of the hearsay testimony was “very questionable” and that the “district court could have (and probably should have) required the prosecution to establish that such information was unavailable from any other witness before” admitting the hearsay). While we do not interpret the “more probative” requirement with “cast iron rigidity,” United States v. Harrison, 296 F.3d 994, 1007 (10th Cir.2002) (internal citation and quotation marks omitted), we have *879previously upheld the inadmissability of evidence under the residual exception where “no showing as to the probative value of the statement or as to efforts made by defendant to obtain the information from other sources,” United States v. Zamora, 784 F.2d 1025, 1031 (10th Cir.1986). Here, the district court could properly rule that Miles’s deposition was the most probative available evidence with respect to Miles’s agreement with Mr. Curshen to promote Freedom Golf for compensation. The district court found that the SEC tried to elicit testimony directly from Mr. Curshen regarding this topic, but he apparently could not recall his conversations with Miles. 3 Aplt.App. 623; see 5 Aplt.App. 980-83, 986, 991-94.
Accordingly, we hold that the district court did not abuse its discretion by admitting Miles’s deposition under Rule 807. Because we hold that the deposition was properly admitted under Rule 807, we need not reach the district court’s Rule 804(b)(1) analysis. See Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1088 (10th Cir.2006) (court of appeals may affirm on any ground supported by the record, provided the parties have had an opportunity to address such ground). We further conclude that, given (1) Miles’s deposition testimony confirming that he had arranged to compensate Mr. Curshen; (2) the district court’s finding that Mr. Curshen’s explanation that the money was repayment for a loan to Ross was not credible; and (3) the extensive bank records showing transfer of funds to Mr. Curshen or Mr. Curshen’s company, Southern Assurance, the district court did not clearly err in finding that Mr. Curshen had been compensated by Freedom Golf.
2. Puffery
To satisfy the first element of a 10b-5 claim, the SEC must allege facts showing Mr. Curshen made an untrue statement of material fact, or failed to state a material fact necessary to make the statements that were made not misleading. 17 C.F.R. § 240.10b-5. In applying the materiality element, courts have identified several categories of statements that are not considered materially misleading. Relevant to the case at hand are “[statements classified as ‘corporate optimism’ or ‘mere puffing’ ” — “typically forward-looking statements, or ... generalized statements of optimism that are not capable of objective verification.” Grossman v. Novell, Inc., 120 F.3d 1112, 1119 (10th Cir.1997); see also Pirraglia v. Novell, Inc., 339 F.3d 1182, 1189 (10th Cir.2003). Examples of puffery include: the company “ ‘is poised to carry the growth and success of 1991 well into the future,’ ” “ ‘significant sales gains should be seen as the year progresses,’ ” 1992 will “ ‘produce excellent results [for the company],’ ” and the company will “maintain a ‘high’ level of growth.” Grossman, 120 F.3d at 1119-20 (collecting cases).
As noted by the SEC during oral argument, puffing statements are typically made by the corporation or someone investors would know is associated with the corporation. Mr. Curshen agrees that “ ‘[professional investors, and most amateur investors as well, know how to devalue the optimism of corporate executives, who have a personal stake in the future success of the company.’” Aplt. Br. 40 (quoting In re Verifone Sec. Litig., 784 F.Supp. 1471, 1481 (N.D.Cal.1992)) (emphasis added). Circuit courts “ ‘have demonstrated a willingness to find immaterial as a matter of law a certain kind of rosy affirmation commonly heard from corporate managers and numbingly familiar to the marketplace — loosely optimistic statements that are so vague, so lacking in specificity, or so clearly constituting the opinions of the speaker, that no reasonable investor could find them important to the total mix of information available.’ ” In re *880Ford Motor Co. Sec. Litig., 381 F.3d 563, 570-71 (6th Cir.2004) (quoting Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1217 (1st Cir.1996)); see id. at 571 (“corporation’s self-praise about its business strategy is ‘not considered seriously by the marketplace and investors in assessing a potential investment’ ”) (internal citation and quotation marks omitted).
Even though a reasonable investor would not have known that Mr. Curshen was associated with Freedom Golf when he made the Internet postings, Mr. Curshen argues that all of the postings are unac-tionable puffery. Aplt. Br. 39-40; Aplt. Reply Br. 11-16. While the district court referred to Mr. Curshen’s postings as “puffing type messages,” Jones, 2009 WL 539615, at *4, the court did not specifically address the materiality of Mr. Curshen’s statements.
The messages on the Internet bulletin boards concern whether the stock had value or was just part of a pump and dump scheme. We agree that many of Mr. Curshen’s postings are vague, optimistic, unverifiable statements on which no reasonable investor would rely. Statements like “Pump up the volume!!,” “Get in now before the fireworks,” and “The next big mover ...,” 4 Aplt.App. 680, 707, 788, certainly fall into this category. However, other postings suggest that Mr. Curshen has personal knowledge about the company and its plans. For example, some postings represent that Mr. Curshen has spoken with the CEO who is functioning in accordance with some sort of strategic plan: “I have enjoyed speaking with [the CEO], He appears to have a good short, medium and long term plan for the company.” 4 Aplt.App. 735. “According to management there are some good things coming on the horizon that should bring life into the stock.” 4 Aplt.App. 764. Another posting matter-of-factly states, “I hear some rumblings that some very powerfull [sic] investor relations people are going to get involved here.” 4 ApltApp. 675. Because we believe that a rational trier of fact could look at the entire message exchange and conclude that some statements extend beyond mere corporate optimism, we do not reach whether the puffery exception applies to statements by persons that reasonable investors would not know were associated with the corporation.
3. Materiality
There is no liability under § 10(b) for failure to disclose information absent a duty to do so. See Cent. Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 174, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994) (§ 10(b)); SEC v. Cochran, 214 F.3d 1261, 1264 (10th Cir.2000) (§ 10(b)); Arst v. Stifel, Nicolaus & Co., Inc., 86 F.3d 973, 981 (10th Cir.1996) (Rule 10b-5). The duty to disclose arises when “‘one party has information that the other party is entitled to know because of a fiduciary or other similar relation of trust and confidence between them.’ ” Cochran, 214 F.3d at 1264 (quoting Chiarella v. United States, 445 U.S. 222, 228, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980)). However, where a party without a duty elects to disclose material facts, he must speak fully and truthfully, and provide complete and non-misleading information with respect to the subjects on which he undertakes to speak. In re K-Tel Int’l Inc. Sec. Litig., 300 F.3d 881, 898 (8th Cir.2002) (internal citations omitted). Thus, a voluntary statement invokes a duty to disclose only if it is material. “A statement or omission is only material if a reasonable investor would consider it important in determining whether to buy or sell stock” and if it would have “significantly altered the total mix of information available to current and potential investors.” Grossman, 120 F.3d at 1119 (citing and quoting TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 *881L.Ed.2d 757 (1976)) (internal quotation marks omitted); citing Basic Inc. v. Levinson, 485 U.S. 224, 281-282, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988).
Mr. Curshen argues that making anonymous Internet postings does not create a fiduciary or otherwise heightened duty to the public requiring him to disclose that he is being compensated for promoting Freedom Golf. Aplt. Br. 29-30. He further argues that “no reasonable investor under the circumstances present here would consider it important in deciding whether to buy or sell Freedom Golf stock that someone anonymously touting that stock on an Internet bulletin board was paid to do so.” Aplt. Br. 43. The SEC counters that failing to disclose the fact that he was being compensated for promoting Freedom Golf stock makes all of his statements per se misleading because a reasonable investor would consider his compensation as bearing on Mr. Curshen’s objectivity. Aplee. Br. 33. The district court agreed that a reasonable investor would find important that an individual promoting the sale of a stock was being compensated for his actions and was selling the same stock for his own benefit. Jones, 2009 WL 539615, at *5.
We agree with the SEC that some investors may use the Internet for investment advice and as a means of distilling information about a stock. Aplee. Br. 36. Merely because the posting is anonymous or on the Internet does not mean that the securities laws are inapplicable. As the above messages suggest, Mr. Curshen appears to be vouching for management (or at least relaying information), and the fact that he was compensated as a promoter would be necessary to make the statements not misleading. A reasonable investor would consider the speaker’s motivation a significant factor in making an investment decision. Mr. Curshen’s failure to disclose that he was being compensated for making material statements is a material omission under these circumstances. See, e.g., Basic, Inc., 485 U.S. at 232, 108 S.Ct. 978.
4. Scienter
To establish scienter, the SEC must demonstrate: (1) Mr. Curshen knew of the potentially material fact, and (2) Mr. Curshen knew that failure to reveal the potentially material fact would likely mislead investors. City of Philadelphia v. Fleming Cos., 264 F.3d 1245, 1261 (10th Cir.2001). “The requirement of knowledge in this context may be satisfied under a recklessness standard by the defendant’s knowledge of a fact that was so obviously material that the defendant must have been aware both of its materiality and that its non-disclosure would likely mislead investors.” Id.
The SEC argues that Mr. Curshen acted with scienter because he knew he was being compensated, and he knew, or must have known, that his failure to disclose this information would mislead investors reading his messages. Aplee. Br. 39 (citing SEC v. Gebben, 225 F.Supp.2d 921, 927 (C.D.Ill.2002) (finding scienter because defendant “knew that investors reading the threads would wrongly believe that his opinions represented independent research, rather than merely a recitation of what Issuers paid [him] to say”)). Mr. Curshen counters that we need not reach scienter because the messages he posted were not materially misleading. Aplt. Reply Br. 20-21. The district court found that Mr. Curshen acted with knowing intent to manipulate a market for his own benefit or with severe reckless disregard to the investing public. Jones, 2009 WL 539615, at *5. The court also concluded that Mr. Curshen’s acts and omissions certainly were negligent in violation of § 17(a)(2) & (3). Id.
*882We see nothing clearly erroneous about the district court’s finding that Mr. Curshen’s material omissions were made with the requisite scienter. Once the district court found that Mr. Curshen had been compensated for his promotional activities, there is nothing controversial about drawing the logical conclusion — he knew he was being compensated, and he knew failing to disclose this compensation would mislead those reading his postings by making his opinions seem objective. The district court’s conclusion that Mr. Curshen’s acts were negligent in violation of § 17(a)(2) & (3) is likewise not clearly erroneous.
To conclude our discussion of §§ 17(a)(1) — (3), § 10(b), and Rule 10b-5, we find that the district court correctly found that some of Mr. Curshen’s Internet postings violated the statutes and Rule 10b-5. While making material statements in Internet postings, Mr. Curshen failed to disclose the important fact that he was being compensated by Freedom Golf for his activities. He also acted with the requisite scienter. Because we affirm the district court’s finding of liability under §§ 17(a)(1) — (3), § 10(b), and Rule 10b-5 based on Mr. Curshen’s materially misleading postings, we need not reach whether hyperlinking to the Investor Report is actionable under these statutes. See Champagne Metals, 458 F.3d at 1088.
C. Liability under § 17(b)
Section 17(b) makes it unlawful “to publish, give publicity to, or circulate any ... communication which, though not purporting to offer a security for sale, describes such security for a consideration received or to be received, directly or indirectly, from an issuer ... without fully disclosing the receipt ... of such consideration and the amount thereof.” 15 U.S.C. § 77q(b). The district court held that Mr. Curshen’s Internet postings touting Freedom Golf violated § 17(b) because he did not disclose his compensation.
On appeal, Mr. Curshen only challenges the district court’s finding that he received compensation, reiterating the evidentiary objections discussed above. Aplt. Br. 54-55; Aplt. Reply Br. 31. Because the district court’s finding that Mr. Curshen was compensated is not clearly erroneous, and it is undisputed that he did not disclose the receipt and amount of such compensation as required by law, United States v. Ware, 577 F.3d 442, 448 (2d Cir.2009), the district court did not err in finding Mr. Curshen liable under § 17(b).
D. Sanctions
An injunction based on the violation of securities laws is appropriate if the SEC demonstrates a reasonable and substantial likelihood that Mr. Curshen, if not enjoined, will violate securities laws in the future. See SEC v. Pros Int'l, Inc., 994 F.2d 767, 769 (10th Cir.1993). Determination of the likelihood of future violations requires analysis of several factors, such as (1) the seriousness of the violation; (2) the degree of scienter; (3) whether his occupation will present opportunities for future violations; and (4) whether he has recognized his wrongful conduct and given sincere assurances against future violations. Id. “Although no single factor is determinative, we have previously held that the degree of scienter ‘bears heavily’ on the decision.” Id. (quoting SEC v. Haswell, 654 F.2d 698, 699 (10th Cir.1981)). “A knowing violation of §§ 10(b) or 17(a)(1) will justify an injunction more readily than a negligent violation of § 17(a)(2) or (3). However, if there is a sufficient showing that the violation is likely to recur, an injunction may be justified even for a negligent violation of 17(a)(2) or (3).” Id. (citing Aaron v. SEC, 446 U.S. *883680, 700-01, 100 S.Ct. 1945, 64 L.Ed.2d 611 (1980)).
Mr. Curshen argues that there is no evidence that he engaged in the sort of recurrent conduct that would support an injunction and that any wrongdoing attributed to him will not re-occur in the future. Aplt. Br. 57. Nonetheless, the district court made specific fact findings supporting its grant of a permanent injunction: Mr. Curshen’s concealment of his interest in Freedom Golf stock “was of an egregious nature over a several week period,” his “complete failure to disclose his self-interest is strong circumstantial evidence of intentional conduct,” and his “giving credence to a fabricated financial report is at best reckless.” Jones, 2009 WL 539615, at *6. It also found that Mr. Curshen’s “history of being involved with stock promotion and stock trading ... bespeaks some likelihood of future trading....” Id. It further found that Mr. Curshen did “not recognize any wrong-doing” and “was not a fully credible witness,” and it did “not accept [his] assurances against future violations or that there is no likelihood that he will have the opportunity to engage in similar conduct.” Id. The district court did not abuse its discretion by granting a permanent injunction.
As for the disgorgement order, “[t]he SEC is entitled to disgorgement upon producing a reasonable approximation of Mr. Curshen’s ill-gotten gains.” SEC v. Calvo, 378 F.3d 1211, 1217 (11th Cir.2004). Mr. Curshen notes that once the SEC has produced such an estimate, “[t]he burden then shifts to [Mr. Curshen] to demonstrate that the Commission’s estimate is not a reasonable approximation.” Aplt. Br. 58 (citing SEC v. First City Fin. Corp., 890 F.2d 1215, 1232 (D.C.Cir.1989)). However, he does not contest the amount of the disgorgement order. Rather, Mr. Curshen argues that disgorgement is not appropriate because he has not violated the securities laws. Accordingly, we do not review the amount of disgorgement, although we note that the record suggests that Mr. Curshen received at least $66,235. Given that Mr. Curshen’s conduct violated §§ 17(a)(1) — (3), 17(b), 10(b), and Rule 10b-5, ordering him to disgorge $66,235 was not an abuse of discretion.
AFFIRMED.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.
. "The scope of Rule 10b-5 is coextensive with the coverage of § 10(b)." SEC v. Zandford, 535 U.S. 813, 816 n. 1, 122 S.Ct. 1899, 153 L.Ed.2d 1 (2002); Maxxon, 465 F.3d at 1179 (noting that the elements of a § 10(b) claim and a Rule 10b-5 claim are identical). We therefore use "§ 10(b)” to refer to both the statute and the rule. See Wolfson, 539 F.3d at 1256 n. 11. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478982/ | ON MOTION
ORDER
James A. Brady, having submitted the required appendix. Upon consideration thereof,
IT IS ORDERED THAT:
(1) The court’s June 16, 2009 dismissal and the mandate be, and the same hereby *45are vacated and recalled, and the notice of appeal is reinstated.
(2) The appendix is accepted for filing. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479000/ | ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478975/ | MEMORANDUM **
Dennis J. Sittman appeals from the district court’s judgment revoking a previous term of supervised release and imposing a term of imprisonment and a new term of supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Sittman contends that the district court proeedurally erred by failing to explain its reasons for imposing another term of supervised release and contends that the new term of supervised release is substantively unreasonable. The record reflects that the district court did not proeedurally err, and the sentence is not substantively unreasonable in light of the totality of the circumstances and the factors set forth in 18 U.S.C. § 3553(a). See Gall v. United States, 552 U.S. 38, 49-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Carty, 520 F.3d 984, 992-93 (9th Cir.2008) (en banc); United States v. Miqbel, 444 F.3d 1173, 1181-82 (9th Cir.2006).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478977/ | ORDER AND JUDGMENT*
WADE BRORBY, Circuit Judge.
After examining the briefs and appellate record, this panel has determined unani*834mously that oral argument would not materially assist in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Defendant-Appellant Jason Claycomb appeals his convictions on grounds the district court abused its discretion and violated his due process rights in denying his motion for a continuance of his trial. He also claims the government violated his Fifth Amendment due process rights when it “vouched” for the truth and veracity of cooperating witness testimony by asking questions regarding its “golden rule.” We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
I. Factual and Procedural Background
From approximately November 2006 to July 2007, Mr. Claycomb was incarcerated at the Larimer County Detention Center in Fort Collins, Colorado, on charges unrelated to the instant case. While housed at that facility, Mr. Claycomb used the detention center’s telephone on an average of at least two hours a day, spent over $14,094.77 on telephone calls, and made a total of 3,558 successful calls. Each time Mr. Claycomb made a telephone call from the detention center he received a recorded warning stating, “This call may be recorded and it may be subject to monitoring at any time.” All of Mr. Claycomb’s calls were tracked and recorded and later transferred to disks. The incriminating telephone recordings established Mr. Clay-comb arranged drug deals while incarcerated at the detention center by instructing individuals on the sale of methamphetamine and cocaine transported from Fort Collins to Gillette, Wyoming.
As a result of Mr. Claycomb’s telephone calls, in January 2007 the Wyoming Division of Criminal Investigation began an investigation into a drug conspiracy involving several individuals selling, buying, and transporting drugs from Fort Collins to Gillette under Mr. Claycomb’s direction. On September 20, 2007, a superceding indictment issued in which the government charged Mr. Claycomb and others with one count of conspiring to possess with intent to distribute and distribute methamphetamine between October 2005 and July 2007, in violation of 21 U.S.C. §§ 841(a)(1) and 846. On November 26, 2007, the district court entered a discovery order in conjunction with Federal Rule of Criminal Procedure 16, including a provision requiring the government to provide Mr. Clay-comb any item the government intended to use in its case-in-chief at trial. Fed. R.Crim.P. 16(e). Thereafter, on January 17, 2008, a second superceding indictment followed which retained the count against Mr. Claycomb and the others, but added additional defendants. After the other defendants pleaded guilty, a third superced-ing indictment issued on September 25, 2008, charging only Mr. Claycomb with conspiring to possess with intent to distribute and distributing methamphetamine and cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, as well as two firearm counts not previously included.
Sometime in December 2007, pursuant to the Rule 16 discovery order, the government provided to Mr. Claycomb’s counsel what it believed were all of his telephone recordings made at the detention center. Then, in April 2008, the government provided Mr. Claycomb and his counsel a spreadsheet listing every telephone call he made from the detention center as well as a disk containing only the telephone recordings the government intended to use at trial. Four months later, on August 15, 2008, Mr. Claycomb appeared before the *835district court at a change of plea hearing, but after learning how the advisory United States Sentencing Guidelines may apply in his case, including an increase in his base offense level for his leadership or managerial role in the conspiracy, he requested additional time to consider his plea, which the district court granted.
On August 27, 2008, at his next scheduled plea hearing, Mr. Claycomb’s counsel requested a continuance, explaining Mr. Claycomb had not reviewed the telephone recordings provided but wanted to listen to all of the calls he made from the detention center. His counsel explained a continuance was needed because: (1) Mr. Clay-comb had previously attempted to listen, at least one time, to the disks provided, but because one of the conversations with a friend, since deceased, upset him, he asked counsel to stop the recordings; (2) the initial plea hearing regarding his leadership role “concerned” Mr. Claycomb because he had not listened to the disks; (3) while counsel tried to impress on Mr. Claycomb three months earlier the seriousness of his situation, Mr. Claycomb only now understood the ramifications; (4) Mr. Claycomb insisted on listening to all of his telephone recordings rather than a condensed version of them; (5) it was important for Mr. Claycomb to listen to all of the telephone recordings as they could contain evidence to help prepare a sound defense; and (6) counsel arranged with jail staff for Mr. Claycomb to listen to the recordings on an MP3 player provided by counsel, but because of restrictions on use of a private room Mr. Claycomb could only listen to them a few hours at a time.
In turn, the government objected to a continuance, explaining Mr. Claycomb had several months to listen to the recordings of his telephone calls and that the summary disk of those telephone calls it intended to use at trial would only take an hour and a half of listening time. The district court found Mr. Claycomb was not prepared to enter a guilty plea, concluded the hearing, and set a trial date.
Two months later, on October 16, 2008, the parties gathered for another hearing to discuss several pending motions, including a bond hearing related to Mr. Claycomb’s requested release from the detention facility for the purpose of listening to the recordings. Mr. Claycomb’s counsel advised the district court that counsel had reviewed many of the calls he thought were important and those the government identified as important, and an iPod was provided to Mr. Claycomb to listen to the disks, but too many telephone calls existed for Mr. Claycomb to listen to while incarcerated. Counsel then requested Mr. Claycomb be released on bond to a transitional facility so he could listen to all his recorded telephone calls at his defense counsel’s office.
In making his request, Mr. Claycomb’s counsel provided a letter from a staffer at the detention center which actually disclosed that while Mr. Claycomb asked to listen to the telephone recordings on a daily basis, the staffer had seen Mr. Clay-comb only leave his cell twice in one month to listen to the recordings. In addition, unrebutted evidence presented by a United States Marshal established Mr. Clay-comb had not listened to his iPod since September 6, 2008, and that while staff had attempted to wake him several mornings for the purpose of listening to his iPod, he had refused to get up. As a result, over the prior two weeks staff had quit attempting to wake him. The district court denied Mr. Claycomb’s bond request but issued an order instructing detention center staff to: (1) give him the opportunity to listen to the telephone recordings through a playing device furnished by counsel; (2) make the playing device available to him every day in his jail cell or a *836private setting at the detention center; and (3) wake him every morning at 8:00 to listen to the telephone recordings for an eight-hour period each day.
Two months later, on December 2, 2008, and just prior to the commencement of the trial set for that day, Mr. Claycomb’s counsel again requested additional time to listen to the telephone recordings. According to counsel, while he received disks of the recordings, he and Mr. Claycomb did not discover until the evening before trial that the disk which supposedly contained all of the calls from November 2006 through February 1, 2007, only contained three days of recordings, from January 25 to 28, 2007. In turn, the government admitted the disk it provided to defense counsel in December 2007, which it believed contained those telephone calls, did not contain all of them. However, it also explained that in April 2008 — at least seven months prior to trial, it provided defense counsel a spreadsheet of every telephone call recorded, as well as the disk containing only those telephone calls it considered part of its case-in-chief and intended to use at trial. It also noted that it allowed defense counsel access to every item of evidence in the case, and defense counsel spent a week reviewing the government’s evidence.
Mr. Claycomb’s counsel admitted he received the disk with the telephone calls the government intended to use at trial and did not object to the government’s use of those recordings. However, counsel again requested more time to review the other inadvertently omitted telephone recordings which he and Mr. Claycomb did not realize were missing until the night before trial, explaining, “[tjhere might be something in there that I can use,” and “[m]y client would like to hear them to see if there’s anything in there I can use in his defense.” In addition, while Mr. Claycomb’s counsel admitted he possessed the spreadsheet identifying every call from November through January, he stated he did not realize “until last night” that it corresponded to every recorded call. The district court disagreed, stating:
Well, I am not going to give you an objection. I think it is your own fault. I think that you should have compared the logs to the phone transcripts and also to the audio of it. I would think that would be the first thing you would do, not the last.
If you or Mr. Claycomb haven’t gotten around to hearing them, that’s nothing I can help.
As to Mr. Claycomb’s counsel’s argument something might exist in the telephone recordings to use in Mr. Claycomb’s defense, the district court stated, “I’m sorry .... but you’ve had plenty of time.” Accordingly, it denied Mr. Claycomb’s request for a continuance and the parties proceeded to trial.
During the trial, the government called as witnesses five law enforcement or detention facility personnel and seven individuals involved in the conspiracy who pleaded guilty. It also introduced only the telephone recordings designated for its case-in-chief which were provided to Mr. Claycomb’s counsel on a disk in April 2008. Those recordings were used in conjunction with the testimony of at least three cooperating witnesses for the purpose of proving Mr. Claycomb’s guilt. Specifically, Mr. Claycomb’s girlfriend, Mia Brown, identified her plea agreement and the provision stating her understanding a reduction of her sentence could occur based on the district court’s determination of her assistance to the government, including the government’s evaluation of her truthfulness. She also testified she spoke with Mr. Claycomb every day while in jail and he instructed her on the purchase and sale *837of the drugs as well as directed her to obtain his 9mm machine gun from the location where he stored it before police found it. At the end of her testimony, she listened to and identified calls involving herself and others with Mr. Claycomb while he was at the detention center — all of which corroborated her earlier testimony that he instructed her and others with respect to multiple drug transactions. She admitted she lied in her initial statements to law enforcement officers, but when questioned on redirect examination about what the United States Attorney’s Office termed the “golden rule,” she stated she understood it was “[t]o always tell the truth.”
Similarly, other cooperating witnesses involved in the same drug conspiracy corroborated Ms. Brown’s or other witnesses’ testimony, testifying as to: (1) Mr. Clay-comb’s role in selling drugs transported from Fort Collins to Gillette; (2) the fact he continued to direct those drug sales from jail through his girlfriend and others; and/or (3) the quantity of cocaine and methamphetamine Mr. Claycomb was responsible for selling. Like Ms. Brown, two other witnesses identified incriminating telephone recordings made between Mr. Claycomb, themselves, and others while he was incarcerated. In addition to Ms. Brown, the government also asked three of the six other cooperating witnesses to explain their understanding of the “golden rule,” which they said was to tell the truth, and all of the cooperating witnesses were asked to identify their plea agreements and the assistance to government provision for a reduction in sentence and all indicated it required them to tell the truth. One witness also testified he traded a machine gun to Mr. Claycomb in exchange for methamphetamine.
Following the evidence presented at trial, a jury found Mr. Claycomb guilty of all three counts, including conspiring to possess with intent to distribute and distributing methamphetamine and cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846; possessing a machine gun in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(l)(B)(ii); and possessing a firearm not registered in the National Firearms Registration and Transfer Record in violation of 26 U.S.C. §§ 5841, 5845(a), and 5861(d). The district court then sentenced Mr. Claycomb to 360 months imprisonment on the conspiracy count; 360 months imprisonment on the machine gun count, to run consecutively to the sentences for the other counts; and 120 months imprisonment on the gun registration count, to run concurrently with the other sentences.
II. Discussion
A. Denial of Motion for Continuance of Trial
Mr. Claycomb now appeals his convictions on grounds the district court abused its discretion and violated his due process rights by denying his motion for a continuance of the trial. In support of his claim, Mr. Claycomb contends the excluded telephone recordings may contain exculpatory evidence, including possible instances where he “opposed numerous of the drug deals proposed by the other participants .... ” By not listening to those tape recordings, Mr. Claycomb claims he was prejudiced because he had insufficient time to prepare a defense, prepare for his own potential testimony, or investigate and prepare a challenge to those telephone recordings the government used at trial. While he admits he was a party to the recordings in question, Mr. Claycomb suggests the tape recordings of his telephone calls were made too far in the past for him to recall their contents. Additionally, he claims the district court acted unreasonably and arbitrarily in denying a continuance because *838neither he nor his counsel could have “gotten around to hearing” all the telephone calls because the government never provided them.
In response, the government argues: (1) neither Mr. Claycomb nor his counsel were diligent in reviewing the telephone recordings, and, had they been diligent, it would have hastened their eve-of-trial discovery that some of the recorded telephone calls were missing; (2) it is unlikely Mr. Clay-comb would have listened to the recordings in the event of yet another continuance, given his history of not listening to them; (3) Mr. Claycomb’s request for a continuance of unspecified time on the day of the trial would have caused the government, its witnesses who traveled from Colorado, the jurors, and the court great inconvenience; and (4) Mr. Claycomb failed to demonstrate a need for a continuance or that he suffered any harm by denial of his request because he insufficiently asserted what he expects to discover in those recordings.
In addressing the issues presented on appeal, we first turn to our standard of review and the principles underlying motions for continuance. We review a district court’s denial of a motion for continuance for abuse of discretion, “assigning error only if the district court’s decision was arbitrary or unreasonable and materially prejudiced the defendant.” United States v. Apperson, 441 F.3d 1162, 1204 (10th Cir.2006) (internal quotation marks, citation, and alteration omitted). We have said that whether a district court’s denial of a motion for continuance is arbitrary or unreasonable depends, in part, on:
[1] the diligence of the party requesting the continuance; [2] the likelihood that the continuance, if granted, would accomplish the purpose underlying the party’s expressed need for the continuance; [3] the inconvenience to the opposing party, its witnesses, and the court resulting from the continuance; [and] [4] the need asserted for the continuance and the harm that [the] appellant might suffer as a result of the district court’s denial of the continuance.
United States v. Rivera, 900 F.2d 1462, 1475 (10th Cir.1990) (internal quotation marks and citation omitted).
As the government contends, neither Mr. Claycomb nor his counsel acted diligently in reviewing the disk of telephone recordings in their possession since December 2007 — a whole year prior to commencement of the trial. During that time, the district court allowed at least two prior continuances for them to review the recordings provided, and the government furnished a spreadsheet showing all of Mr. Claycomb’s telephone calls. While Mr. Claycomb claims neither he nor his counsel could have “gotten around to hearing” all the telephone calls because the government never provided them, they would have readily discovered, well before trial, that some of the recorded telephone calls were inadvertently missing had they only listened to the disks provided and/or compared those calls with the spreadsheet. Instead, the record is replete with evidence Mr. Claycomb simply failed to bother to listen to the tapes, despite the opportunities afforded him. This, and the fact he and his counsel did not discover missing telephone calls until the eve of trial, demonstrates a lack of diligence sufficient to support the district court’s denial of another continuance.
Next, we consider the likelihood a continuance, if granted, would accomplish the purpose underlying the party’s expressed need for the continuance. In this case, we agree with the government that it is highly unlikely Mr. Claycomb would have listened to the recordings in the event of yet another continuance, given his history of not availing himself of the many prior op*839portunities to listen to them. While his counsel may have listened to them had a continuance been granted, that alone is insufficient, when compared with the other circumstances presented in this case, to establish an abuse of discretion by the district court in denying the motion for continuance.
Next, Mr. Claycomb did not move for a continuance until the day of the trial, and, in doing so, he did not specify the amount of time needed for such a continuance. The government argues that granting a continuance on the morning of the trial would have caused the court, jury, government, and its cooperating witnesses, who apparently traveled from Colorado, great inconvenience. As we have stated before, “any continuance granted practically on the eve of trial inevitably will disrupt the schedules of the court, the opposing party, and the witnesses who have been subpoenaed or who have voluntarily arranged their schedules to attend the trial,” as well as jurors. Id. We have also held that where the motion for continuance does not specify the amount of time needed to prepare adequately for trial, “the resulting uncertainty” is an additional inconvenience to the government and its witnesses. Id. at 1475-76. This case is no exception. Under the circumstances presented, it is apparent a continuance would have caused inconvenience to those involved in the trial.
Finally, with regard to the fourth factor, Mr. Claycomb must show “the need asserted for the continuance and the harm that [he] might suffer as a result of the district court’s denial of the continuance.” Id. at 1475. Here, as the government contends, Mr. Claycomb fails to demonstrate a need for a continuance or any harm caused by its denial because he has not asserted what he expects to discover in those recordings. Instead, on appeal, Mr. Claycomb merely contends the telephone recordings may contain exculpatory evidence, including possible instances where he “opposed numerous of the drug deals proposed by the other participants.... ” However, even if the missing recordings revealed his opposition to some drug deals, such conduct would not exculpate him from responsibility for those drug deals the evidence in the record overwhelmingly establishes he directed and for which he was convicted and sentenced. Given such overwhelming evidence, Mr. Claycomb has not explained how a continuance would have helped him prepare a defense, prepare for his own potential testimony, or investigate and prepare a challenge to the telephone recordings the government did use at trial, which he had full access to seven months in advance. We also note that at the time of the trial, when the district court considered the motion, the only reasons Mr. Claycomb’s counsel could muster for a continuance consisted of assertions that “[t]here might be something in there that I can use,” and “[m]y client would like to hear them to see if there’s anything in there I can use in his defense.” This is woefully insufficient to show the need asserted for a continuance and the harm one might suffer as a result of the district court’s denial of a continuance.
While we do not condone the government’s inadvertent failure to provide all of the telephone recordings to Mr. Claycomb, he has failed to show any material prejudice caused by the error or the denial of his motion for continuance. For all of the reasons stated, we conclude the district court did not act arbitrarily or unreasonably or otherwise abuse its discretion in denying the motion for continuance.
B. Golden Rule Violation
In his appeal, Mr. Claycomb also argues the government violated his Fifth Amendment right to due process when it “vouched for four of its critical witnesses *840by obtaining testimony that they were adhering to ‘the golden rule’ ” to tell the truth. In support, Mr. Claycomb points out the government introduced into evidence each of their plea agreements containing provisions their cooperation would result in lesser sentences if the government determined they told the “truth.” While he concedes admitting plea agreements is permissible, he contends the government’s questions to witnesses about the “golden rule” implicitly suggested that it found their testimony truthful, causing impermissible prosecutorial vouching as to the truthfulness of those witnesses. According to Mr. Claycomb, such witness testimony on the “golden rule” misled the jury and prejudiced him because the case against him depended on the credibility of those witnesses. Because he did not object to the government’s questioning of the witnesses on the “golden rule,” he concedes the standard of review is for plain error but summarily contends he meets this standard because plain error occurred which prejudicially affected his substantial rights depriving him of a fair trial and seriously affected the fairness, integrity, and public reputation of his judicial proceeding.
As Mr. Claycomb acknowledges, he did not object to the admission of the government’s questions regarding the “golden rule,” so we review the issue of such admission for plain error. See United States v. Harlow, 444 F.3d 1255, 1261 (10th Cir.2006). To establish plain error, Mr. Clay-comb must show: (1) an error; (2) that is plain; (3) that affects substantial rights so the outcome of the trial would have been different without the error; and (4) that the error seriously affected the fairness, integrity, or public reputation of the judicial proceeding. See id. All of these requirements must be established before a defendant can meet his burden of establishing plain error.
Having set out our standard of review, we turn to the legal principles involved in considering Mr. Claycomb’s vouching argument. Vouching errors are viewed “in light of the context of the entire proceeding, including the strength of any curative instructions and the closeness of the case.” Id. (citations omitted). We have said it is permissible for a prosecutor to introduce a witness’s plea agreement including a truthfulness provision and to discuss that provision to make sure the witness is aware of the consequences of failing to tell the truth and for the purpose of heading off any claim the witness’s testimony is suspect because of the plea agreement. See id. at 1262. “Use of the ‘truthfulness’ portions of plea agreements becomes impermissible vouching only when the prosecutors explicitly or implicitly indicate that they can monitor and accurately verify the truthfulness of the witness’ testimony.” Id. (internal quotation marks, citation, and alteration omitted).
In this case, it is clear the government only asked the witnesses to identify their plea agreements and the assistance to government or “truthfulness” provisions concerning a reduced sentence and to explain if they knew what the “golden rule” was. A review of their testimony does not in any way indicate the government vouched for the credibility of those witnesses or the veracity of their testimony— either explicitly or implicitly. Thus, we discern no error.
However, even if the government’s questions on the “golden rule” could be interpreted as vouching as to their credibility and constitute plain error, it is clear Mr. Claycomb has not demonstrated the error affected his substantial rights. Instead, a plethora of telephone recordings involving Mr. Claycomb, which he admits were provided to him seven months before trial and introduced into evidence, clearly *841established his managerial role in the drug conspiracy at issue and the location and his possession of the 9mm machine gun.1 Thus, even if plain error had occurred concerning the government’s vouching of witness testimony, Mr. Claycomb’s own telephone recordings overwhelmingly support his convictions. Thus, he has not shown, but for the alleged error, the outcome of the trial would have been different. Having made this determination, we need not address the fourth requirement of our plain error review, other than to note Mr. Clayeomb has also failed to establish the alleged error, if any, seriously affected the fairness, integrity, or public reputation of his judicial proceeding.
III. Conclusion
For the aforementioned reasons, we AFFIRM Mr. Claycomb’s convictions.
This order and judgment is not binding precedent except under the doctrines of law of the *834case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.
. In addition, the government contends Mr. Claycomb’s statements to a law enforcement detective implicated him in the distribution of drugs and his possession of the 9mm machine gun, but it does not indicate where in the record such statements were introduced into evidence. Our review of the record establishes the detective, who testified at trial on the recording of Mr. Claycomb's telephone calls at the detention center, did not testify as to any statement made to him by Mr. Clay-comb. Therefore, we will not consider any such statements on appeal. It also contends three cooperating witnesses were not asked about the “golden rule," so that Mr. Clay-comb's "golden rule” argument should not pertain to their testimony on their working at his direction in the conspiracy or purchasing methamphetamine and/or cocaine from him. This is correct. Our review of the record establishes each of the cooperating witnesses testified regarding the government assistance provision of their plea agreements, and all indicated it required them to state the truth, but only four specifically testified regarding the "golden rule.” However, even if we did not consider any of the witnesses’ testimony, it makes no difference in the result, given the overwhelming inculpatory evidence relating to the tape recordings themselves. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478978/ | ORDER DISMISSING APPEAL
JOHN C. PORFILIO, Circuit Judge.
Defendant-Appellant Christopher Ysais brought this case in the District of New Mexico, attempting to remove his New Mexico state court divorce proceeding to federal court. The district court, concluding that there was no basis for federal jurisdiction, remanded the divorce case to state court. Mr. Ysais appealed, and we dismissed his appeal for lack of jurisdiction. See Ysais v. Ysais, Case No. 08-2219 (10th Cir. Sept. 23, 2008) (order) (citing 28 U.S.C. § 1447(d)).
Undeterred, Mr. Ysais later filed a seventy-four-page motion under Fed.R.Civ.P. 60(b), again requesting that the district *844court take jurisdiction over the case. Before the district court could rule on his motion, he filed the notice of appeal currently before us.
We lack jurisdiction over this appeal for two reasons. First, since the district court has not ruled on the 60(b) motion, there is no final order of the district court that could supply us with jurisdiction. See 28 U.S.C. § 1291 (granting courts of appeals “jurisdiction of appeals from all final decisions of the district courts of the United States.”).1 Second, “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” 28 U.S.C. § 1447(d). We therefore lack jurisdiction to review the denial of a 60(b) motion seeking reconsideration of a decision to remand the case to state court, and cannot and will not consider an appeal from the denial of such a motion.
This appeal is therefore DISMISSED. We deny Ysais’s motion to proceed in for-ma pauperis. None of his other pending motions are authorized by the Federal Rules of Appellate Procedure and all of them lack merit. All pending motions are therefore DENIED.
. Mr. Ysais also purports to appeal from another as-yet-unadjudicated motion: his motion demanding a trial by jury on his 60(b) motion. An order denying this motion would not be a final decision creating jurisdiction in this court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478981/ | ON MOTION
ORDER
James A. Brady, having submitted the required appendix. Upon consideration thereof,
IT IS ORDERED THAT:
(1) The court’s June 16, 2009 dismissal and the mandate be, and the same hereby *45are vacated and recalled, and the notice of appeal is reinstated.
(2) The appendix is accepted for filing. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478983/ | ON MOTION
ORDER
Intellectual Science and Technology, Inc. moves without opposition to dismiss appeals nos. 2009-1143 and 2009-1144 pursuant to Fed. R. App. P. 42(b) concerning Defendants-Appellees, U.S. JVC Corporation, JVC Americas Corporation, and Panasonic Corporation of North America.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted. Appeals 2009-1143 and 2009-1144 are dismissed. The revised official caption is reflected above.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478987/ | ORDER
Petitioner having filed the required Statement Concerning Discrimination,
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The court’s November 24, 2009 dismissal order is vacated, the mandate is recalled, and the petition for review is reinstated.
(2) Petitioner’s brief is due on or before February 12, 2010. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478989/ | ORDER
• The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478991/ | ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478993/ | ORDER
Counsel having failed to become a member of the bar of this court as required by the Federal Circuit Rule 46, it is
ORDERED that the appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479009/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order issued October 21, 2009, be affirmed. The district court did not abuse its discretion in dismissing the appellant’s complaint without prejudice for failure to comply with Fed.R.Civ.P. 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” See Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C.Cir.2004).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of *78the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479011/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order issued May 19, 2009, be affirmed. The district court properly construed the appellant’s complaint as a mandamus petition and dismissed it due to the appellant’s failure to show he had a clear right to the relief requested. See Power v. Barnhart, 292 F.3d 781, 784 (D.C.Cir.2002); Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (holding that the Administrative Procedure Act, 5 U.S.C. §§ 701-706, only provides for judicial review of an agency’s failure to act when the action is not committed to agency discretion by law). The regulation on which the appellant relies, 28 C.F.R. § 0.50, describing the general functions of the Civil Rights Division, serves an organizational purpose and does not make it mandatory for the Civil Rights Division to investigate every civil rights violation alleged. See Peek v. Mitchell, 419 F.2d 575 (6th Cir.1970) (holding that the Attorney General could not be compelled to investigate allegedly known civil rights violators because the matter was committed to prosecutorial discretion).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
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