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https://www.courtlistener.com/api/rest/v3/opinions/8480248/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ralph and Beverly Byrd appeal the district court’s orders affirming the order of the bankruptcy court directing the Chapter 13 trustee to disburse to the Appellee all funds held by the Chapter 13 trustee in partial payment of the allowed administrative expenses of Ralph’s bankruptcy case while under Chapter 7 and Chapter 11, and denying their motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Byrd v. Johnson, No. 8:06-cv-02704 (D. Md. Mar. 23, 2009 & Apr. 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https://www.courtlistener.com/api/rest/v3/opinions/8480250/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronald Wendell Doby appeals the district court’s order denying Doby’s 18 U.S.C. § 3582(c) (2006) motion for reduction of sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Doby, No. 3:08-cr-00029-HEH-1 (E.D.Va. Feb. 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https://www.courtlistener.com/api/rest/v3/opinions/8480252/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steve Carl Chadwick-El appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915(e) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Chadwick-El v. Titus, No. 1:09-ev-02662-RDB (D.Md. filed Nov. 4, 2009; entered Nov. 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/8480253/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas J. Savoca petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his Fed. R. Civ. P. 59(e) motion to alter or amend the judgment denying relief on his 28 U.S.C.A. § 2255 (West Supp.2010) motion. He seeks an order from this court directing the district court to act. Our review of the district court’s docket reveals that the district court, on June 8, 2010, denied Savo-ca’s motion to alter or amend the judgment. In light of this recent ruling, we deny the mandamus petition as moot. We grant leave to proceed in forma pauperis. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before *449the 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/8480255/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darrell Lamont Bostick petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his motion for reconsideration. He seeks an order from this court directing the district court to act. Our review of the district court’s docket reveals that the district court denied Bostick’s motion on April 8, 2010. Accordingly, because the district court has recently decided Bostick’s case, we deny the mandamus petition as moot. We grant leave to proceed in forma pau-peris. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials be*455fore 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/8480257/ | *570ORDER
When police officers responded to a call of shots fired, a woman in the crowd pointed them to John Anthony, and a patdown revealed a gun in his pants pocket. A custodial search then revealed 5.46 grams of crack in his other pocket. Anthony pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and to possessing crack with intent to distribute, 21 U.S.C. § 841(a)(1). The district court sentenced him as a career offender, see U.S.S.G. § 4B1.1, but went below the guidelines range of 188 to 235 months and imposed a sentence of 126 months’ imprisonment. Anthony filed a notice of appeal. But he does not wish to withdraw his guilty plea, and appointed counsel cannot find a basis to challenge the sentence and seeks permission to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002). Anthony has not commented on counsel’s motion even though he was invited to do so. See CiR. R. 51(b). We limit our review to the issues identified by counsel in her facially adequate brief. United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Counsel notes that there is no question that the guidelines range was properly calculated and that Anthony’s below-guidelines sentence is entitled to a presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Jackson, 598 F.3d 340, 345 (7th Cir.2010); United States v. Wallace, 531 F.3d 504, 507 (7th Cir.2008). Counsel considers whether Anthony could overcome that presumption by arguing that the district court failed to adequately consider the sentencing factors in 18 U.S.C. § 3553(a). See United States v. Singleton, 588 F.3d 497, 500-01 (7th Cir.2009). Counsel concludes, however, that any such challenge would be frivolous. Here, the district court credited Anthony’s asserted mitigating factors to some extent, acknowledging the relatively minor nature of offenses that led to his designation as a career offender, his positive educational and parenting traits, and his family’s efforts at cooperating with the government. The court concluded, however, that an even lower sentence was not warranted because of the serious nature of the crimes (Anthony was intoxicated while carrying a gun in a volatile area) and Anthony’s history of violence (his criminal history included convictions for assault, resisting the police, and smashing his ex-girlfriend’s car). The court’s careful consideration of the factors in § 3553(a) leaves Anthony no basis for an appeal. See United States v. Scott, 555 F.3d 605, 610 (7th Cir.), cert. denied, — U.S.-, 130 S.Ct. 341, 175 L.Ed.2d 225 (2009).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480258/ | ORDER
This is a successive appeal. More than a decade ago, we affirmed Edward L. Bu-ehannan Jr.’s convictions for distribution of, and conspiracy to distribute, crack cocaine (21 U.S.C. § 846), assaulting a federal officer (18 U.S.C. § 111) and robbery of federal funds (18 U.S.C. § 2112), but remanded for resentencing. United States v. Buchannan, 115 F.3d 445, 453 (7th Cir.1997). In January 2008, Buchannan completed his prison term and began serving a term of supervised release. Soon thereafter, he violated the conditions of his release, and the district court admonished him at a noncompliance hearing. In February 2009, probation alleged further violations and, at a revocation hearing in March, Buchannan, through counsel, pleaded guilty to two charged violations of his supervised release including possession of controlled substances and failure to report for drug testing or for substance abuse counseling. The district court found a factual basis for the allegations and accepted Buchannan’s plea. The court, however, released him and continued the hear*572ing for three months to allow Buchannan to demonstrate to the court that the term of reimprisonment imposed should reflect Buchannan’s assurance that he had turned himself around. After further violations, the district court reconvened the hearing in August 2009. The district court revoked Buchannan’s supervised release and imposed a term of reimprisonment of 36 months, an above-the-guidelines term, with a recommendation that he participate in the Residential Drug Abuse Program (RDAP) while incarcerated, followed by 12 months further supervised release.
Buchannan filed a notice of appeal, but his appointed counsel now seeks to withdraw because he cannot identify any non-frivolous ground for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because Buchannan has not submitted a response to counsel’s motion, see CIR. R. 51(b), we confine our review to the potential issues identified in counsels facially adequate brief, see United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
In his Anders submission, counsel first considers whether Buchannan could argue that the district court abused its discretion when it found he had violated the conditions of, and then revoked, his supervised release. As counsel notes, however, this argument would be frivolous, because the defendant admitted that he violated the conditions of his release. Buchannan did not move to withdraw his admissions before the district court and therefore counsel, and we, need not address whether his admissions were knowing and voluntary.
Counsel next considers whether Buchannan could challenge his terms of reimprisonment as unreasonable. Counsel correctly concludes that this argument, too, would be frivolous because the reimprisonment term was not “plainly unreasonable.” United States v. Kizeart, 505 F.3d 672, 674 (7th Cir.2007). Buchannan agreed with the court that he committed a Grade B violation, that his original criminal history category was III, that his guidelines range was 8 to 14 months and that the district court could impose supervised release following revocation. U.S.S.G. § 7B1.4(a). The district court imposed a term of 36 months, noting Buchannan’s inability to lead a fully law-abiding life, his history of violence, and his need for drug rehabilitation that could be provided by the RDAP program. In imposing a term of supervised release following the term of imprisonment, the district court considered Buchannan’s promises that he had become a changed man and accorded him another opportunity to fulfill these promises under the supervision of the probation office and the court. The district court’s explanation demonstrates that it considered the applicable policy statements, see U.S.S.G. ch. 7, pt. B, and the factors set out in 18 U.S.C. § 3553(a), see United States v. Salinas, 365 F.3d 582, 588-89 (7th Cir.2004).
We therefore GRANT the motion to withdraw and DISMISS Buchannan’s appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480276/ | *366Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lance M. Hilley appeals the district court’s judgment denying Hilley’s summary judgment motion and granting Defendant’s motion to dismiss and for summary judgment on Hilley’s “mixed case” seeking review of a Merit Systems Protection Board decision, and disability discrimination claims under the American with Disabilities Act of 1990, 42 U.S.C.A. §§ 12101-12213 (West 2005 & Supp.2010), and the Rehabilitation Act of 1973, as amended, 29 U.S.C.A. §§ 701-7961 (West 2008 & Supp.2010). We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s judgment. See Hilley v. Mabus, No. 2:08-ev-00457-JBF-FBS (E.D.Va. July 31, 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/8480259/ | MEMORANDUM **
California state prisoner Miguel Mor-eira-Alfaro appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253.1 We review de novo the district court’s denial of Moreira-Alfaro’s federal habeas petition, see Doody v. Schriro, 596 F.3d 620, 634 (9th Cir.2010) (en banc), and we affirm.
The state court did not unreasonably conclude that “some evidence” supports the California Board of Parole Hearings’ 2005 decision to deny Moreira-Alfaro parol. See 28 U.S.C. § 2254(d); see also Hayward v. Marshall, 603 F.3d 546, 563 (9th Cir.2010) (en banc).
We reject the State’s argument that Moreira-Alfaro does not have a due process liberty interest in parole. See Hayward, 603 F.3d at 561-63.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. We certify for appeal, on our own motion, the issue of whether the California Board of Parole Hearings’ 2005 decision to deny Mor-eira-Alfaro parole violated due process. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480260/ | MEMORANDUM ***
Avtar Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Gonzalez-Hemandez v. Ashcroft, 336 F.3d 995, 998 (9th Cir.2003), and we deny the petition for review.
Substantial evidence supports the agency’s finding that, even if Singh established a well-founded fear of persecution, the government established by a preponderance of the evidence that Singh could reasonably relocate within India. See 8 C.F.R. § 1208.13(b)(3)(ii); Sowe v. Mukasey, 538 F.3d 1281, 1287 (9th Cir.2008) (“The presumption that an asylum applicant has a well-founded fear of persecution can be rebutted ... either by a showing that [t]he applicant could avoid future persecution by relocating to another part of *655the applicant’s country of nationality.”) (citation and internal quotation marks omitted). In addition, substantial evidence also supports the BIA’s conclusion that Singh’s presumptive well-founded fear was rebutted by changed circumstances in India because the BIA’s analysis of the State Department report was sufficiently individualized and its resolution of potentially contradictory statements in the report was rational. See Gonzalez-Hernandez, 336 F.3d at 998-99. Accordingly, Singh’s asylum and withholding of removal claims fail. Id. at 1001 n. 5.
Substantial evidence also supports the agency’s denial of CAT relief because Singh failed to demonstrate that it was more likely than not he would be tortured if returned to India. See Hasan v. Ashcroft, 380 F.3d 1114, 1122-23 (9th Cir.2004) (denying CAT relief based on the possibility of internal relocation).
PETITION FOR REVIEW DENIED.
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/8480261/ | MEMORANDUM **
We affirm for the reasons stated by the district court in the three orders relevant to this case. Those orders are (1) Order Granting in Part and Denying in Part Plaintiffs and Defendant’s Motions for Summary Judgment, dated May 14, 2009; (2) Order Granting Plaintiffs Motion for Partial Summary Judgment and Denying Defendant’s Motion for Summary Judgment, dated June 26, 2007; and (3) Order Denying Defendant’s Motion to Dismiss, dated May 12, 2006.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480262/ | MEMORANDUM **
Waymon Hobdy, Jr., appeals the district court’s partial summary judgment and its partial Rule 12(b)(6) dismissal in Hobdy’s Title VII action against the Los Angeles Unified School District (“LAUSD”) and several of its employees. Hobdy, a former assistant principal and current teacher for LAUSD, alleged race and gender discrimination, retaliation, a hostile work environment, and state-law intentional infliction of emotional distress (“IIED”). The IIED claims against all parties and the Title VII claims against the individual defendants were dismissed on the Rule 12(b)(6) motion. The district court dismissed the remaining claims on summary judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
We address first the summary judgment rulings. The district court did not err in granting summary judgment on Hobdy’s Title VII discrimination claims. To survive summary judgment under Title VII, Hobdy had to adduce a triable issue of fact that LAUSD’s justifications for demoting Hobdy were merely a pretext for discrimination. Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1066 (9th Cir.2003). Because Hobdy had not passed the district’s Administrators’ Examination, he was subject to demotion to his former position at the end of the semester if demotion was considered by the school district to be in its best interests. Here, LAUSD submitted extensive evidence that almost from the onset of his appointment, Hobdy’s supervisor thought that Hobdy was not adequately performing his job duties. Principal O’Riley, who, like Hobdy, is an African-American, provided Hobdy with more than one hundred notes critical of his job performance and identified twenty-two areas of concern about Hobdy’s ability to carry out his responsibilities, including, in her critical assertions, Hobdy’s poor attendance, lack of administrative judgment, last-minute event planning, inability to anticipate problems in his administrative areas, and failure to take initiative to learn the position without assistance. See Unt v. Aerospace Corp., 765 *724F.2d 1440, 1447 (9th Cir.1985) (concluding that there was no Title VII violation when the discipline resulted from the plaintiffs “well documented performance deficiencies”). Hobdy’s own subjective belief that he was performing satisfactorily does not create a genuine issue of material fact. See Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir.1996). And even if O’Riley was mistaken and wrong in her critical appraisals of Hobdy, that is not sufficient to establish a federal Title VII discrimination claim.
Moreover, because Principal O’Riley was primarily responsible for both the hiring and the demoting of Hobdy, the defendants were entitled to the “same actor” inference, which creates a strong inference that there was no discriminatory motive. See id. at 270-71. Hobdy provided no direct evidence of race discrimination, which on the record did not seem likely because O’Riley was herself an African-American and had been instrumental in Hobdy’s hiring in the first instance. Moreover, as for Hobdy’s claims of gender discrimination, he relied on evidence that we do not consider substantially probative of gender discrimination, such as O’Riley’s statement that Hobdy should refrain from engaging in a “pissing contest” and describing the probability of Hobdy remaining in the position as “lesser than the Immaculate Conception.” In our view such phrases cannot reasonably be construed in context as demonstrating evidence of gender discrimination. LAUSD also hired a Latino male to replace Hobdy in the assistant principal position, further undermining Hobdy’s gender-discrimination claim. Hobdy’s reliance on the same evidence overall was also insufficient to create a genuine issue of material fact that the defendants’ conduct was sufficiently severe or pervasive to create a hostile work environment. See Vasquez v. County of L.A., 349 F.3d 634, 643-44 (9th Cir.2003).
Nor has Hobdy provided sufficient evidence to survive summary judgment on his retaliation claim. Hobdy’s documented history of inadequate performance as challenged and asserted by Principal O’Riley, and the school district’s policy permitting demotions of special appointees at the end of each semester provide adequate nonre-taliatory reasons for Hobdy’s demotion. See Stegall, 350 F.3d at 1065-66. There is no genuine issue of material fact regarding pretext as Hobdy’s poor performance was documented before he engaged in protected activity, and Hobdy was informed before engaging in protected activity that he would receive a substandard evaluation absent an improvement in his performance. See Manatt v. Bank of Am., N.A., 339 F.3d 792, 803-04 (9th Cir.2003). Hobdy’s comparator evidence was insufficient to raise a genuine issue of material fact regarding pretext for retaliation because there was no evidence indicating whether or not Margaret Farrell engaged in protected activity.
The district court also properly dismissed Hobdy’s Title VII claims against the individual employee defendants. See Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1058 (9th Cir.2007) (“We have long held that Title VII does not provide a separate cause of action against supervisors or co-workers.”).
As to Hobdy’s state-law IIED claims, which were dismissed on the Rule 12(b)(6) motion, the only issue on IIED raised by Hobdy’s opening brief was: “4. Did the District Court commit error as a matter of law in granting Appellee Karen O’Riley’s 12(b)(6) Motion as to Mr. Hobdy’s sixth claim for Intentional Infliction of Emotional Distress, because the Eleventh Amendment was not a bar to such claim against this Appellee? Yes.” We have consistently *725held that a party has an obligation to raise any dispositive issue in its opening brief, or else that issue need not be considered. See, e.g., Kim v. Kang, 154 F.3d 996, 1000 (9th Cir.1998) (Ninth Circuit will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant’s opening brief); Image Technical Serv., Inc. v. Eastman Kodak Co., 136 F.3d 1354, 1356 (9th Cir.1998) (same). Accordingly, it is very clear that appellant’s opening brief did not preserve any dispute about dismissal of the IIED claims against any defendant other than Principal O’Riley.
Further, even with regard to O’Riley, Hobdy challenges only one ground relied on by the district court to dismiss those claims — Eleventh Amendment immunity. That issue was mentioned by the court during the oral argument on the Rule 12(b)(6) motion to dismiss the IIED claims, but when the district court later signed an order dismissing the claims, it explicitly incorporated by reference all of the grounds asserted in the motion, stating: “(1) The Motion to Dismiss by the individual defendants is granted. As to the individual defendants the Court dismisses all nine claims for relief set forth in Plaintiffs Complaint for the reasons set forth in the motion, pursuant to FRCP Rule 12(b)(6).” That motion had asserted not only the Eleventh Amendment ground challenged on appeal by Hobdy, but also that California employment law precluded the IIED claims and that the conduct alleged of the individual defendants did not satisfy the California law standard of “extreme and outrageous conduct” necessary for the tort of IIED. Because appellant Hobdy does not challenge the other two grounds the district court relied on to dismiss those claims, namely, failure to comply with California’s Tort Claims Act and failure to allege sufficiently facts showing “extreme and outrageous conduct,” Hobdy has therefore waived any challenge to the dismissal of his IIED claims. See Rodriguez v. Hayes, 591 F.3d 1105, 1118 n. 6 (9th Cir.2010) (“[T]he failure of a party in its opening brief to challenge an alternate ground for a district court’s ruling given by the district court waives that challenge.” (emphasis omitted)); MacKay v. Pfeil, 827 F.2d 540, 542 n. 2 (9th Cir.1987) (per curiam) (same).
Moreover, even if we were to assess that claim on its merits, we would hold that the challenged conduct of Principal O’Riley, namely her negative evaluations of Assistant Principal Hobdy and her related conduct, are not so extreme and outrageous as to come within the California tort of IIED. Even though some employment discrimination eases will have fact patterns sufficient to qualify as extreme and outrageous conduct, every case of employment discrimination does not reach that point. This principle has been recognized by the California Court of Appeal. See Janken v. GM Hughes Electronics, 46 Cal.App.4th 55, 79-80, 53 Cal.Rptr.2d 741 (1996) (holding that “[t]he intentional infliction of emotional distress claim fails” where “[t]he factual allegations ... plead claims of discrimination” but not more). Here, Hob-dy’s basic complaint about O’Riley is that she discriminated against him in various ways in her evaluations and related conduct. To the extent that Hobdy alleges more than mere discrimination, the additional alleged conduct, such as giving him a negative review in presence of others and commencing negative evaluations shortly after he started on this job, is not sufficient for the IIED tort under traditional common law standards applicable in California.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480263/ | GOULD, J.,
concurring in part and dissenting in part:
I concur in the court’s affirmance of the Federal Rule of Civil Procedure 12(b)(6) dismissal of the California state law claims for intentional infliction of emotional distress. However, although it is a close case on the question whether the Title VII discrimination claims should have been resolved by summary judgment, I respectfully dissent from the court’s affirmance of that decision by the district court. I conclude that there is a genuine issue of material fact on the issue of pretext if we consider the totality of circumstances, accept all of Mr. Hobdy’s factual assertions as true, and give him all reasonable inferences from them in support of his claims.
Most significant for me are the immediacy and frequency thereafter of Principal O’Riley’s criticisms of Hobdy in his new role as an assistant principal, that O’Riley on at least one occasion gave Hobdy a dressing down in front of other teachers, and that, although it might be reconciled by reference to different school-district needs or different decisionmakers, Hob-dy’s loss of the assistant principal job carried with it more hardship than the comparable loss faced by Farrell. Certainly one can easily state an innocent explanation of all these, but a contrary inference favoring Hobdy on pretext to me seems to be permissible. For example, one might view O’Riley’s frequent and harshly critical notes, delivered to Hobdy, which started soon after Hobdy started his new job, as legitimate but tough criticisms, with the timing motivated by her trying to turn Hobdy around after she had urged his being hired for administrative work; but one also might view these notes, as Hobdy did, as a campaign of harassment, or as a pretextual attempt to paper the file. In my view, Hobdy’s tale in its factual aspects, if fully credited, raises a genuine issue about the motive of O’Riley, and traditionally such issues of motive have been thought factual and submitted to the trier of fact. See, e.g., Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1072-73 (9th Cir.2004).
If the record viewed favorably to Hobdy only shows that O’Riley was a bad manager, harsh in criticism of subordinates, excessive in looking over their shoulders and unreasonably demanding on points that weren’t critical to the job, that would not be enough to support a Title VII discrimination claim. But the record, again in the light most favorably to Hobdy, rather than most favorable to O’Riley and the school district, shows more. I would let a jury decide. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480265/ | PER CURIAM.
Rafal Filipczyk appeals the United States Court of Federal Claims’ dismissal of his request for lodging expense reimbursement due to lack of jurisdiction, and in the alternative, summary judgment in favor of the Government action denying his request. Because we agree that Mr. Filipczyk is not entitled to the requested reimbursement as a matter of law, we affirm the summary judgment of the Court of Federal Claims.
Background
Mr. Filipczyk is a civilian employee of the Naval Oceanographic Office (“NAVO-CEANO”). He is regularly assigned temporary duty aboard naval ships traveling across open waters and docked in foreign ports. Certain terms of Mr. Filipczyk’s employment conditions are governed by a Collective Bargaining Agreement (“CBA”) between his employer, NAVOCEANO, and his labor union, American Federation of Government Employees Local 1028. One such term is that NAVOCEANO does not reimburse employees for lodging costs incurred during the first forty-eight hours in port.
While a ship is in open waters, employees on board are lodged in shipboard quarters. When the ship is docked in port, the employees are free to leave the ship during their off-duty hours. At night, the employees have the option of sleeping in their shipboard quarters, or staying at a hotel in town. Shipboard quarters are provided to employees free of charge at all times. Per the CBA, NAVOCEANO will reimburse employees for hotel costs in*975curred after the first forty-eight consecutive hours in port. Thus, if an employee wishes to stay at a hotel the first night or two in port, the CBA requires that he do so at his own expense.
In September of 2007, Mr. Filipczyk was serving on board a ship that docked at Naha, Japan, for three days. Mr. Filip-czyk rented a hotel for three nights, September 25-28, one of which nights was during the first forty-eight hours in port. The following month, Mr. Filipczyk’s ship docked at Saesbo, Japan, and Mr. Filip-czyk rented Government quarters on shore for two nights during the first forty-eight hours in port. Mr. Filipczyk submitted documentation for all of his incurred lodging expenses when he returned to his permanent station at Stennis Space Center in Mississippi. NAVOCEANO refused to reimburse Mr. Filipczyk for the lodging expenses incurred during his first night in Naha and his first two nights in Saesbo. The amount of the non-reimbursed expenses totaled $175.17.
Mr. Filipczyk appealed the denial of his reimbursement request to the Civilian Board of Contract Appeals (“CBCA”), alleging violations of the Travel Expense Act 5 U.S.C. §§ 5702(a)(1), (a)(2); 41 C.F.R. § 301-11.3., the Defense Housing Management Manual, 5 U.S.C. § 5911(e), and the Federal Service Labor-Management Relations Act (“FSLMRA”) 5 U.S.C. §§ 7101-35. The CBCA dismissed the claim for lack of subject matter jurisdiction, because the claim pertained to a provision of the CBA. The CBA sets forth exclusive administrative procedures for resolving grievances, and appeal to the CBCA is not one of those procedures.
In September of 2008, Mr. Filipczyk filed a compliant in the Court of Federal Claims seeking vacatur of the CBCA’s dismissal of his appeal. The Court of Federal Claims dismissed Mr. Filipczyk’s complaint for lack of subject matter jurisdiction because the claim did not seek monetary relief as required under the Tucker Act. See 28 U.S.C. § 1491(a)(1). The Court of Federal Claims also noted in its opinion that it did not have jurisdiction to review decisions of the CBCA.
In January of 2009, Mr. Filipczyk filed a second complaint in the Court of Federal Claims seeking money damages in the amount of $175.17, pursuant to the Travel Expense Act, 5 U.S.C. §§ 5702(a)(1) and (a)(2). He also included the allegations previously brought to the CBCA that the travel provision of the CBA violated various federal statutes and regulations.
The Court of Federal Claims found that it did not have jurisdiction to hear Mr. Filipczyk’s complaint that the CBA violated the FSLMRA, § 5911(e), or the Defense Housing Management Manual, because none of those sources of law confer a substantive right to money damages against the United States. The Court of Federal Claims held that the Federal Labor Relations Authority (“FLRA”) has exclusive jurisdiction to hear claims related to the FSLMRA, providing an additional reason why the Court of Federal Claims has no jurisdiction to hear that claim.
Mr. Filipczyk moved for reconsideration, arguing that the money-mandating Travel Expense Act provides a jurisdictional hook for his non-money-mandating FSLMRA, § 5911(e), and Housing Manual claims. He reasoned that evaluating the legality of the CBA is inseparable from and necessary for determining whether he is entitled to money damages under the Travel Expense Act. See Holley v. United, States, 124 F.3d 1462, 1465 (Fed.Cir.1997).
The Court of Federal Claims denied the motion, and held that Tucker Act jurisdiction requires each claim presented to arise independently from a money-mandating *976statute. In the alternative, the Court of Federal Claims found that if it possessed jurisdiction over the § 5911(e) claim, then the Government was entitled to summary judgment that the CBA did not violate the cited provision under Court of Federal Claims precedent. Finally, the Court of Federal Claims found that the Government was entitled to summary judgment that the CBA travel provision did not violate the Travel Expense Act. The Court of Federal Claims found that federal agencies have wide discretion in setting per diem allowances. The cited statute and regulation provide for per diem allowances, but do not specify any minimum amount or whether any restrictions may apply.
Mr. Filipczyk timely appealed to this court. This court has jurisdiction over appeals from the Court of Federal Claims under 28 U.S.C. 1295(a)(3). On appeal, Mr. Filipczyk contends that the Court of Federal Claims erred in dismissing his claims under the FSLMRA and Defense Housing Manual, and erred in granting summary judgment as to his claims under the FSLMRA and Travel Expense Act. We address each claim below.
DISCUSSION
Both parties acknowledge that there were no issues of fact in dispute before the Court of Federal Claims, and that every one of Mr. Filipczyk’s claims is properly resolved as a matter of law. The dispute on appeal is only whether the various legal questions presented were properly decided. We review the Court of Federal Claims’ legal conclusions, determinations of jurisdiction, and award of summary judgment without deference. Pennington Seed, Inc. v. Produce Exch. No. 299, 457 F.3d 1334, 1338 (Fed.Cir.2006); Suess v. United States, 535 F.3d 1348, 1359 (Fed.Cir.2008); City of Tacoma v. Richardson, 163 F.3d 1337, 1339 (Fed.Cir.1998).
Jurisdictional Dispute
The Court of Federal Claims does not have jurisdiction to prospectively enjoin the enforcement of contracts. Such relief must be obtained from a tribunal with subject matter jurisdiction over the legal challenge to the contract. The tribunal with subject matter jurisdiction over the CBA here is the FLRA. The FLRA was created by Congress for the purpose of enforcing collective bargaining agreements and adjudicating the negotiability of bargaining terms. It has exclusive jurisdiction to declare certain provisions of such agreements invalid or unenforceable. If an aggrieved party is unsatisfied with the disposition of his claim before the FLRA, he may seek judicial review of the case in a federal appellate court. 5 U.S.C. § 7123(b).
The Government responds to most of Mr. Filipczyk’s claims by arguing that the Court of Federal Claims does not have jurisdiction to decide the negotiability of terms under a CBA, whether a CBA violates Department of Defense housing guidelines, or whether the CBA violates a statutory prohibition against compelling federal employees to rent government quarters. These statutes are not money-mandating, and the Tucker Act itself does not confer any substantive right to relief. The Government concludes that the Court of Federal Claims can only entertain claims that independently arise from a money-mandating statute.
Mr. Filipczyk responds that the Court of Federal Claims has jurisdiction under the money-mandating Travel Expense Act, and thus has jurisdiction over the entire cause, including related claims under laws that are not themselves money-mandating. The Court of Federal Claims rejected Mr. Filipczyk’s argument, holding that all claims brought before the Court of Feder*977al Claims must independently relate back to a money-mandating statute. See Synernet Corp. v. United States, 41 Fed.Cl. 375, 382 (Ct.Cl.1998).
It appears to us from the record in this case that the Court of Federal Claims erred in finding that it had no jurisdiction to entertain arguments that were not directly based on a money-mandating statute. Claimants in the Court of Federal Claims may argue issues based on violations of the Constitution or of a statute or regulation to support their claims for monetary relief under money-mandating statutes. Holley, 124 F.3d at 1467 (holding that the Court of Federal Claims had jurisdiction to decide an alleged due process violation related to his claim for damages under a money-mandating statute); see also Trek Leasing, Inc. v. United States, 62 Fed.Cl. 673, 677-78 (2004) (holding that the Court of Federal Claims had pendant jurisdiction over a state law contract claim that was part of the same case as a claim over which the Court of Federal Claims had jurisdiction pursuant to 28 U.S.C. § 1498(b)).
The Court of Federal Claims has jurisdiction to consider all of Mr. Filipczyk’s arguments directly related to the alleged violation of the Travel Expense Act. This includes jurisdiction over prerequisite questions as to whether the CBA is lawfully enforceable against Mr. Filipczyk for purposes of denying him expenses to which he would otherwise be entitled under the Travel Expense Act. Accordingly, the Court of Federal Claims has jurisdiction to determine whether the CBA violates the Defense Housing Manual, § 5911(e), or the FSLMRA, to the limited extent that such a determination will resolve whether the CBA is a lawful reason to deny Mr. Filip-czyk the reimbursement to which he claims to be entitled under the Travel Expense Act.
FSLMRA
Under 5 U.S.C. §§ 7101-35, commonly known as the FSLMRA, unions and federal agencies must negotiate in good faith over terms and conditions of employment, and those negotiated terms are binding unless a bargaining proposal is inconsistent with existing federal law, rule, or regulation. See 5 U.S.C. § 7117(a)(1). Mr. Filipczyk argues that the negotiated rule against reimbursing lodging expenses incurred within the first forty-eight hours in port is in violation of 5 U.S.C. § 5911(e), the Defense Housing Manual, and the Travel Expense Act, and is thus invalid. If Mr. Filipczyk is correct that the travel provision of the CBA is contrary to one of these laws, then the Court of Federal Claims is authorized to award him damages pursuant to a money mandating statute, in the amount of the travel reimbursement to which he would be entitled but for the invalid CBA.
The FSLMRA does not, however, confer on the Court of Federal Claims the authority to enjoin the enforcement of the CBA or award Mr. Filipczyk any other declaratory relief. Such relief must first be sought at the FLRA, and then a proper appellate court. 5 U.S.C. § 7123(b). We thus turn to the contrary provisions of law that Mr. Filipczyk contends invalidate the CBA.
5 U.S.C. § 5911(e)
Since we determine that the Court of Federal Claims had jurisdiction to decide the issue presented by Mr. Filipczyk regarding the CBA’s alleged violation of 5 U.S.C. § 5911(e), we now turn to the Court of Federal Claims’ alternative disposition of that issue on the merits.
Section 5911(e) prohibits the Government from requiring employees to occupy *978quarters on a “rental basis.” The Court of Federal Claims found that the CBA provision prohibiting reimbursement of lodging expenses incurred during the first forty-eight hours in port did not violate § 5911(e). The Court of Federal Claims’ conclusion relied on its decision in Boege v. United States, 206 Ct.Cl. 560, 566 n. 4 (1975), which noted that § 5911(e) did not apply to shipboard quarters in a foreign port that are provided free of charge.
Mr. Filipczyk cited to the Court of Federal Claims and to this court several decisions by the Government Accountability Office holding under other circumstances that § 5911(e) applies to quarters furnished by the Government, regardless of whether they are provided for free or at cost. See To the Sec’y of the Air Force, B-15617, 44 Comp. Gen. 626, 630 (Apr. 15, 1965); Matter of Fed. Aviation Admin.: Gov’t Quarters, B-195859, 1980 WL 16914, at *4 (Comp.Gen. Mar.18, 1980). Mr. Fi-lipczyk argues that the Comptroller General’s analysis in these opinions is more persuasive than that of the Court of Federal Claims, and asks this court to resolve the apparent conflict in law.
Mr. Filipczyk acknowledges, however, that the plain language of § 5911(e) specifying “rental basis” does not on its face include shipboard quarters provided free of charge. Mr. Filipczyk asks this court to take the extraordinary measure of intentionally looking past the plain language of the statute, and interpreting the language to better comport with what Mr. Filipczyk contends was the intent of Congress in passing the Act. He alleges that the Comptroller General did just this in the cited opinions, and that this court should follow his persuasive example.
We do not agree with Mr. Filipczyk that the clear intent of Congress was to include in the scope of § 5911(e) shipboard quarters provided free of charge in a foreign port, especially where employees have the option of staying elsewhere at their own expense. Moreover, we do not agree that interpreting the statute to deliberately reach beyond its plain language is appropriate under the facts of this case.
Defense Housing Manual
Section C5.1.3.1 of the Housing Manual for the Department of Defense provides that Defense personnel staying in transient quarters should have the same quality of furnishing as they would in a good-quality, midlevel hotel. Section C5.1.3.10 defines the services and supplies required to satisfy section C5.1.3.1. Mr. Filipczyk argues that the CBA is invalid because it effectively requires personnel to occupy shipboard quarters that are inferior to a good-quality, mid-level hotel.
The Court of Federal Claims dismissed this claim for lack of subject matter jurisdiction under the same rationale as Mr. Filipczyk’s § 5911(e) claim, but did not go on to dispose of Mr. Filipczyk’s Housing Manual claim on the merits in the alternative. Although we determine that the Court of Federal Claims has jurisdiction to consider this claim for the reasons discussed above, we hold that the Government would be entitled to summary judgment that the CBA does not violate the Defense Housing Manual.
There is no indication in the record that the CBA is invalid for conflicting with the Defense Housing Manual. Mr. Filipczyk has not alleged sufficient facts that the shipboard quarters provided free of charge and occupied while the ship is in the open waters and during the first forty-eight hours in port constitute transient quarters within the meaning of the Housing Manual, or that they violate the guidelines of the Housing Manual. Nor has he indicated that the guidelines in the Hous*979ing Manual are judicially enforceable. There is no indication in the record that even if the CBA deviated from the transient quarters guidelines or any other guidelines in the Housing Manual, it would constitute a violation of a “[f]ederal law or any Government-wide rule or regulation” such that it would invalidate the CBA under the FSLMRA. Accordingly, we conclude that Mr. Filipczyk has not alleged facts sufficient to prove that the CBA is invalid for conflicting with sections C5.1.3.1-10 of the Defense Housing Manual. 5 U.S.C. § 7117(a)(1).
Travel Expense Act
The Travel Expense Act and its accompanying regulation provide that a federal employee traveling on official business away from his designated post of duty shall be entitled to (a) a per diem allowance (b) reimbursement for actual and necessary expenses or (c) some combination of (a) and (b). 5 U.S.C. § 5702(a)(1); 41 C.F.R. § 301-11.3. The amount of the per diem and the maximum amount of reimbursement are set by other sources of authority. 5 U.S.C. § 5702(a)(2).
The Court of Federal Claims found that the denial of Mr. Filipczyk’s travel expenses pursuant to the CBA does not violate the Travel Expense Act, because agencies have wide discretion in authorizing travel allowances that they determine to be in the best interest of promoting United States official business. We agree with the Court of Federal Claims that the CBA does not violate the Travel Expense Act. The bargained-for reimbursement provision of the CBA is within the wide discretion granted to agencies under the Travel Expense Act, and is not so unreasonable as to violate the letter or spirit of 5 U.S.C. § 5702(a). Since the CBA is not invalid under any of the other statutes that Mr. Filipzyk cites, it provides a lawful basis for denying Mr. Filipczyk’s travel expense reimbursement request.
Accordingly, we affirm the Court of Federal Claims’ judgment that the Government is entitled to summary judgment that NAVOCEANO’s denial of Mr. Filip-czyk’s reimbursement request was not in violation of the Travel Expense Act.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480277/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Aimee Jomaur Jacques seeks to appeal the district court’s order dismissing his habeas petition without prejudice. 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, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Jacques seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. See Chao v. Rivendell Woods, Inc., 415 F.3d 342, 345 (4th Cir.2005). 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/8480266/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the amended brief and appendix filed by 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 filed December 17, 2009, dismissing appellant’s complaint as barred by the doctrine of res judicata, be affirmed.
Although appellant filed the underlying complaint as a new civil action, he is seeking relief from the district court’s final order in Morton v. Guiterrez, 07cv0751, 2008 WL 274910 (D.D.C., filed Jan. 31, 2008), which this court summarily affirmed in No. 08-5037, 2008 WL 4898960 (D.C.Cir., filed Sept. 4, 2008). The doctrine of res judicata, also known as claim preclusion, prevents a party from filing a new civil action which is based on the same operative facts as underlay a previously-litigated civil action. See Capitol Hill Group v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d 485, 490 (D.C.Cir.2009) (and cases cited therein). Because the district court rendered a final judgment in 07cv0751, and because that action involved the identical parties, claims, and “nucleus of facts” as the new complaint filed in 09cv2382, the district court was precluded from considering the latter action anew. “[RJes judicata ... bars relitigation not only of matters determined in a previous litigation but also ones that a party could have raised[.]” NRDC v. Thomas, 838 F.2d 1224, 1252 (D.C.Cir.1988). Whether the district court in 07cv0751 specifically addressed appellant’s allegations of fraud, as .he now contends, those claims were raised by appellant in his prior action, were considered by the district court in that prior action, and thus were properly dismissed in the subsequent action on res judicata grounds.
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 |
https://www.courtlistener.com/api/rest/v3/opinions/8480269/ | 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 and appendix filed by the appellant. See Fed. RApp. P. 34(a)(2); D.C.Cir. Rule 340). It is
ORDERED AND ADJUDGED that the district court’s order filed March 16, 2010, be affirmed. The district court properly denied appellant’s petition for a writ of mandamus and dismissed the action, because appellant has not shown a “clear and indisputable right” to mandamus relief. Gulfstream Aerospace Corp. v. Mayaca-mas Corp., 485 U.S. 271, 289, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988). The Executive Branch has absolute discretion to de*4cide whether to prosecute a case. United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); see also Powell v. Katzenbach, 359 F.2d 234, 234 (D.C.Cir.1965) (the prosecutorial discretion of the Attorney General may not be controlled through mandamus). Moreover, appellant has not demonstrated that the appellees owed him a duty to prosecute particular individuals. To the extent appellant attempted to raise causes of actions based on criminal statutes, there is no private cause of action for perjury, 18 U.S.C. § 1621; subornation of perjury, 18 U.S.C. § 1622; false declarations before a grand jury or court, 18 U.S.C. § 1623; or false statements, 18 U.S.C. § 1001. See Central Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 190, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994) (refusing to infer a private right of action from a “bare criminal statute”); see also McDonnell Douglas Corp. v. Widnall, 57 F.3d 1162, 1164 (D.C.Cir.1995).
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 |
https://www.courtlistener.com/api/rest/v3/opinions/8480270/ | SUMMARY ORDER
Plaintiff-Appellant Christopher Bakow-ski appeals from a judgment of the district court dismissing his malicious prosecution claim. In 1994, Bakowski was indicted on charges of conspiracy to defraud the United States Air Force (“USAF”) and making false statements. He was acquitted of these charges on October 31, 1995. In November 1998, Bakowski filed a complaint against fifteen federal employees and three federal agencies alleging, inter alia, malicious prosecution pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2401(b), 2671 to 2680 and the judicially-created remedy made available by Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In a March 2000 order, the district court granted plaintiffs request to add the United States as a defendant, dismissed plaintiffs Bivens claim as barred by the statute of limitations, and dismissed the FTCA claims against all defendants except the United States.1 Following discovery, the district court granted the government’s motion for summary judgment, concluding that, because Bakowski failed to demonstrate that the government had no probable cause to prosecute him, his malicious prosecution claim failed.
On appeal, Bakowski argues that the district court erred in: (i) granting the government’s summary judgment motion without first requiring it to answer the interrogatories and requests for admission that Bakowski had served on the original defendants; (ii) finding that the government had probable cause to prosecute him; (iii) granting his motion to compel without requiring the government to produce the privileged documents or more adequately explain its privilege log; (iv) deferring to the Government by allowing it to file its summary judgment motion out-of-time; and (v) dismissing his Bivens claim as barred by the statute of limitations. For the reasons that follow, we AFFIRM.
Reviewing de novo the district court’s dismissal under Fed.R.Civ.P. 12(b)(6), and taking all facts alleged in the complaint as true and drawing all inferences in favor of the plaintiff, Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir.2000), we conclude that the district court’s dismissal was proper. Federal law establishes that a Bivens claim accrues on the date on which the plaintiff was aware of the facts underlying the claim. Kronisch v. United States, 150 F.3d 112, 123 (2d Cir.1998). A cause of action for malicious prosecution accrues when a criminal proceeding terminates in the plaintiff’s favor. DiBlasio v. City of New York, 102 F.3d 654, 657-58 (2d Cir.1996). Under Connecticut General Statute § 52-577, the applicable statute of limitations for a Bivens action is three years from the point of accrual. Conn. Gen.Stat. § 52-577; Lounsbury v. Jeffries, 25 F.3d 131, 134 (2d Cir.1994). Here, Bakowski’s claim accrued on October 31, 1995, when he was acquitted of the offenses charged in the indictment. Bakowski, however, did not file his Bivens claim until November 24, 1998 — more than three *12years after the claim had accrued. To the extent that Bakowski argues that the statute of limitations should have been equitably tolled because he did not discover his cause of action until conferring with counsel and receiving a closing letter from the USAF, this argument is unavailing. It is within the discretion of the district court to equitably toll the statute of limitations “where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (footnote omitted). Here, Bakowski presented no evidence showing that he filed a defective pleading within the statutory period or that the government induced him to file his claim outside of the statute of limitations. Accordingly, the district court’s dismissal of Bakowski’s Bivens claim as time-barred was proper.
Bakowski also contends that the district court erred in concluding that he had not established that the government lacked probable cause to indict him. We review de novo a district court’s grant of summary judgment, focusing on whether the district court properly concluded that no genuine issues of material fact existed and that the movant was entitled to judgment as a matter of law. Allstate Ins. Co. v. Mazzola, 175 F.3d 255, 258 (2d Cir.1999). To prevail on his malicious prosecution claim, Bakowski was required to show, among other things, that the Government lacked probable cause to indict him. Zenik v. O’Brien, 137 Conn. 592, 79 A.2d 769, 772 (1951) (“[T]he burden is upon the plaintiff to prove affirmatively, by circumstances or otherwise, that the defendant had no reasonable ground for instituting the criminal proceeding.”); Bernard v. United States, 25 F.3d 98, 102 (2d Cir.1994) (applying state law to FTCA malicious prosecution claim). Here, the evidence presented to the grand jury, independent of Vail’s testimony, established that Bakowski submitted a letter and form seeking an exemption from the requirement of providing cost and price information, and that the letter and form referred to a sale that was never consummated. Accordingly, the evidence presented to the grand jury was sufficient to establish probable cause to indict Bakowski.
Finally, plaintiff challenges two of the district court’s rulings limiting the scope of discovery. Plaintiff first challenges the district court’s decision reviewing the district court’s discovery rulings as an abuse of discretion, Sequa Corp. v. GBJ Corp., 156 F.3d 136, 147 (2d Cir.1998). Here, the original defendants, upon whom Bakowski served his interrogatories and requests for admissions, were dismissed from the case in the disposition of the defendants’ Rule 12(b)(6) motion. Thereafter, Bakowski made no efforts to serve more tailored discovery requests on the government, the sole remaining defendant, until the government had filed its motion for summary judgment. Because Bakowski’s discovery requests were directed to the dismissed defendants and were not modified for service on the government, the district court’s decision not to compel production was reasonable.
Bakowski also challenges the district court’s decision not to order the government to produce privileged documents, or in the alternative, to order the government to explain its reasons for asserting the privilege. Under Rule 26(b)(5), a party withholding information as privileged is re*13quired to “describe the nature of the documents ... in a manner that ... will enable other parties to assess the applicability of the privilege.” Here, the government’s privilege log clearly documented the nature of the requested documents and its rationale for classifying the information as privileged. Accordingly, the district court’s rulings limiting the scope of discovery to the requests served on the government and allowing the government to withhold privileged documents were well within the scope of its discretion.
Finally, Bakowski challenges the district court’s decision to allow the government to file its motion for summary judgment out-of-time. Rule 6(b)(2) provides that “[wjhen a party is required to file a motion within a specified time, the district court may, upon motion, extend that time where the failure to act was the result of excusable neglect.” Here, the government’s motion was untimely because the parties were involved in document production and review when the deadline for filing dispositive motions elapsed. Accordingly, it was clearly within the district court’s discretion to grant the government an opportunity to file its motion for summary judgment out-of-time.
For these reasons, the judgment of the district court is AFFIRMED.
. The district court found that plaintiff's FTCA claim was timely filed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480271/ | OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
The major issue presented in this case is whether the affidavit on its face provided a substantial basis for the district justice’s finding of probable cause. For the following reasons, the affidavit supporting the warrant provided a substantial basis for finding probable cause to search Appellant’s jeep. Alternatively, even if the affidavit did not establish probable cause, the officers who executed the search of Appellant’s jeep relied on the warrant in objective good faith. Accordingly, we affirm the District Court’s denial of Mr. Mortimer’s motion to suppress and the Judgment of Conviction. However, in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we will vacate his sentence and remand for resentencing in accordance with Booker. As we write only for the parties, we need not restate the facts.
I. JURISDICTION
The District Court had jurisdiction under 18 U.S.C. § 3231. A timely notice of appeal was filed on October 17, 2003. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.
II. ANALYSIS
A. The Affidavit Establishes Probable Cause
In ruling on Mr. Mortimer’s motion to suppress, the District Court “did not question the facts contained in the affidavit” supporting the search warrant. United States v. Jones, 994 F.2d 1051, 1055 (3d Cir.1993). As such, we exercise plenary review of the District Court’s denial of Appellant’s motion to suppress. Id. at 1055, & n. 5; United States v. Hodge, 246 F.3d 301, 306 (3d Cir.2001). It goes without saying that although the warrant was *140issued by a state district justice, the validity of the warrant is governed by federal law. United States v. Rickus, 737 F.2d 360, 364 (3d Cir.1984). Because our review of the District Court’s decision denying Mr. Mortimer’s motion to suppress is plenary, we are obliged to apply the same deferential standard that the district court applies in reviewing a magistrate judge’s initial probable cause determination. Jones, 994 F.2d at 1055. Specifically, we must pay “great deference” to the magistrate’s determination of probable cause. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)).
Thus, in reviewing the probable cause assessment, this Court does not undertake a de novo review of whether probable cause actually existed. Jones, 994 F.2d at 1054, 1055, 1057. Instead, our duty, like that of a district court, is simply to ensure that the state district justice had a “substantial basis” for concluding that the affidavit supporting the warrant established probable cause. Id. at 1054; see also Gates, 462 U.S. at 236, 103 S.Ct. 2317. In making this assessment, this Court confines itself “to the facts that were before the magistrate judge, i.e., the affidavit, and [does] not consider information from other portions of the record.” Jones, 994 F.2d at 1055. Moreover, “the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” Id. at 1057-58 (quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)). That said, the great deference afforded to a magistrate’s determination “does not mean that reviewing courts should simply rubber stamp a magistrate’s conclusion.” United States v. Tehfe, 722 F.2d 1114, 1117 (3d Cir.1983), cert. denied sub nom., Sanchez v. United States, 466 U.S. 904, 104 S.Ct. 1679, 80 L.Ed.2d 154 (1984). A magistrate judge or state district justice may find probable cause when, viewing the totality of the circumstances, “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238, 103 S.Ct. 2317. Proof beyond a reasonable doubt is not required. Id. at 235, 103 S.Ct. 2317.
Mr. Mortimer argues that Patrolman Williams’ affidavit failed to marshal enough facts or evidence to warrant the district justice’s conclusion that there was a fair probability that either drugs or drug paraphernalia would be found in his jeep. The supporting affidavit must be read in its entirety and in a common sense and nontechnical manner. Gates, 462 U.S. at 230-31, 103 S.Ct. 2317. Read in this light, the affidavit sets forth ample facts to support the magistrate’s finding of probable cause to believe that drug related evidence would be discovered in Mr. Mortimer’s vehicle.
Although the affidavit does not provide direct evidence that contraband would be present in Mr. Mortimer’s jeep, “direct evidence linking the place to be searched to the crime is not required for issuance of a search warrant.” United States v. Conley, 4 F.3d 1200, 1207 (3d Cir.1993). Instead, “probable cause can be, and often is, inferred by ‘considering the type of crime, the nature of the items sought, the suspect’s opportunity for concealment and normal inferences about where a criminal might hide” ’ the fruits of his crime. Jones, 994 F.2d 1051 (quoting United States v. Jackson, 756 F.2d 703, 705 (9th Cir.1985)). A court “is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense.” United States v. Whitner, 219 F.3d 289, 296 (3d Cir.2000) (quoting Unit*141ed States v. Caicedo, 85 F.3d 1184, 1192 (6th Cir.1996)).
In the present case, the reasonable inferences that may be drawn from the facts presented in the affidavit could lead a magistrate to reasonably conclude that drugs or drug paraphernalia would be found in Mr. Mortimer’s jeep. The affidavit informed the district justice of the circumstances surrounding the arrest warrant that was executed on Appellant on January 28, 2003. Mr. Mortimer was apprehended on the outstanding arrest warrant for possession with intent to deliver a controlled substance, namely 4.3 grams of methamphetamine, possession of a controlled substance, and carrying loaded weapons. The loaded weapon, a .22 caliber rifle, had been discovered in Mr. Mortimer’s vehicle. It is significant to the probable cause inquiry that the events giving rise to the outstanding arrest warrant and the events giving rise to the instant search warrant and charges instituted against Appellant both involved controlled substances. Indeed, this Court has stated that “[t]he use of prior arrests and convictions to aid in establishing probable cause is not only permissible, but is often helpful. This is especially so where, ... the previous arrest or conviction involves a crime of the same general nature as the one which the warrant is seeking to uncover.” Conley, 4 F.3d at 1207 (citations omitted).1 Given Patrolman Williams’ statement in his affidavit that “[i]n my experience 4.3 grams [of methamphetamine] is more than what is normally carried or purchased for personal use,” the fact that a loaded weapon, generally understood to be a tool of the drug trade, United States v. Koonce, 884 F.2d 349, 354 n. 8 (8th Cir.1989); United States v. Bonner, 874 F.2d 822, 824 (D.C.Cir.1989), was found in Appellant’s vehicle, and the fact that the Mr. Mortimer was discovered with marijuana on his person when the arrest warrant was executed, it was reasonable for the district justice to infer that Appellant is a drug dealer.
This alone may not have been sufficient to establish probable cause that drugs or contraband would be discovered in Mr. Mortimer’s jeep on January 28, 2003. However, when considered in conjunction with the remaining information in the affidavit, probable cause to search Appellant’s vehicle existed at that time. At the time of execution of the arrest warrant, Mr. Mortimer was found in possession of drugs while he was merely a few feet from his jeep filling it with gas. It is eminently reasonable for Patrolman Williams and the magistrate to believe that further contraband or similar evidence relevant to both the drugs discovered on his person and the crime for which Appellant had just been arrested might be found in the vehicle from which he must have recently alighted and which was in his immediate vicinity at the time of the arrest. This inference is bolstered by the fact that, at the time of Mr. Mortimer’s arrest, his jeep was packed with numerous suitcases and other belongings. In addition, the jeep had a temporary license plate covering the permanent license plate. Patrolman Williams observed in his affidavit that “Mortimer appears to be in the process of moving or traveling extensively.” Indeed, that Mr. Mortimer’s jeep appeared to contain a substantial amount of his personal belongings renders it more probable that any drugs or drug contraband in addition to that al*142ready seized would be located in his vehicle.
Taken together, these factors — that Mr. Mortimer was found with marijuana on his person as he was being arrested on an outstanding warrant for possession with intent to distribute methamphetamine; that a loaded weapon was previously discovered in his vehicle in connection with the methamphetamine; that at the time the marijuana was discovered on his person he was but a few feet from his jeep; and that Appellant’s jeep was packed with suitcases and personal belongings — lead to the common sense conclusion that there was a fair probability that drugs or drug paraphernalia would be found in Mr. Mortimer’s jeep. The cumulative impact of the evidence as set forth in the affidavit and outlined above leads us to conclude that there was a substantial basis from which the district justice could infer that a search of Appellant’s jeep would yield drug-related evidence.
B. The Good Faith Exception
Alternatively, even if there was not a substantial basis from which the district justice could make a finding of probable cause, we would still affirm the District Court’s denial of Mr. Mortimer’s motion to suppress on the basis that Patrolman Williams and other officers who participated in the search of his jeep relied in “good faith” on the issuance of the search warrant.
The good faith exception to the exclusionary rule provides that the suppression of evidence is inappropriate “when an officer executes a search in objectively reasonable reliance on a warrant’s authority, even though no probable cause to search exists.” United States v. Hodge, 246 F.3d 301, 307 (3d Cir.2001) (internal quotations omitted). In assessing whether the good faith exception applies, a court must inquire “whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization;” United States v. Loy, 191 F.3d 360, 367 (3d Cir.1999). Although “the mere existence of a warrant typically suffices to prove that an officer conducted a search in good faith and justifies application of the good faith exception,” Hodge, 246 F.3d at 307-08, this Court has recognized four instances when an officer’s reliance on a warrant is not reasonable. See id. at 308. The parties agree that the only possible applicable exception in this case is “[when] the warrant was based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” Id. (quoting United States v. Williams, 3 F.3d 69, 74 n. 4 (3d Cir.1993) (citations omitted)).
As illustrated by our probable cause analysis, Patrolman Williams’ affidavit contained more than adequate indicia of probable cause to support the district justice’s finding. At most, it could be argued that the affidavit presented a close call. It, however, unquestionably amounted to more than a “bare bones” document based on conclusory, unsupported statements. Loy, 191 F.3d at 368. Contrary to Appellant’s analysis, which incorrectly fails to consider the affidavit in its entirety, the affidavit, as explained above, outlined in appropriate detail the circumstances surrounding the arrest warrant and its execution, including the observations and research of Patrolman Williams. Once the magistrate made the probable cause determination, it was objectively reasonable for the officers to rely on it. The District Court in this case found that there was a substantial basis for magistrate’s finding. We agree. The warrant was not so facially deficient or lacking in indicia of probable cause that a reasonably well trained *143officer would have known that the search was illegal despite the magistrate’s authorization. Accordingly, we hold that, even if there was not a substantial basis for the district justice’s probable cause determination, the good faith exception applies and the District Court’s denial of Mr. Mortimer’s motion to suppress was proper under the circumstances.
C. The Sixth Amendment Claim
Finally, we note that Mortimer has raised issues concerning the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), in a Motion for Summary Remand. Mortimer claims that his Sixth Amendment rights were violated when the District Court made factual findings regarding the quantity of drugs he possessed in calculating his sentencing range under the Guidelines. This case was appealed, and the briefs were filed before the Supreme Court rendered its decision in Blakely. Mortimer’s initial response to Blakely was to file objections to his base offense sentencing calculation with the District Court and also file a Motion to Stay Proceedings in this Court. On July 22, 2004, we denied Mortimer’s Motion to Stay and noted that “the District Court is without jurisdiction to act at this time.” The District Court also denied Mortimer’s objections because it lacked jurisdiction. On August 2, 2004, Mortimer filed a Motion for Summary remand with this Court so he could be resentenced in light of Blakely. We denied Mortimer’s motion to remand on August 3, 2004, but nevertheless held this case C.A.V. “pending a resolution of the Blakely matter.”
On January 12, 2005, the Supreme Court handed down its ruling in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and held that Blakely applies to the federal Sentencing Guidelines. The Supreme Court also held that the Booker decision applies to all cases on direct review, and remanded the cases involved in Booker for resentencing. Id. at 769. Accordingly, Booker applies to the case before us. Having determined that the sentencing issues Mortimer raises are best determined by the District Court in the first instance, we will vacate the sentence and remand for resentencing in light of Booker.
III. CONCLUSION
The District Court properly denied Mr. Mortimer’s motion to suppress. Thus, his conviction will be affirmed. However, we will vacate Mortimer’s sentence and remand for resentencing in accordance with Booker.
. Appellant challenges the relevance of his 1989 conviction for possession of a small amount of marijuana to the determination of whether probable cause existed for the search of his jeep. We agree that this prior conviction is of negligible relevance to the instant inquiry. Nevertheless, the remainder of the affidavit, when read in its entirety, is sufficient to establish probable cause. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480272/ | OPINION
ROTH, Circuit Judge:
Appellant Heriberto Santiago pled guilty to a four-count indictment charging him with (1) possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1); (2) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and (3-4) being a felon in possession of a firearm and of ammunition, both in violation of 18 U.S.C. § 922(g)(1). On appeal, he argues that the District Court committed three errors. First, he contends that the court erred in denying his motion to suppress evidence obtained pursuant to an allegedly defective warrant. Second, he urges that the court improperly classified his prior Pennsylvania conviction for reckless endangerment as a “crime of violence” under the Sentencing Guidelines. And third, he argues that the court erred by entering separate convictions for the possession both of a firearm and of ammunition. We will affirm the District Court’s order denying Santiago’s motion to suppress and its judgment entering separate convictions for possession of the firearm and ammunition, but we will vacate his sentence and remand the case for re-sentencing.
I. Background
On November 1, 2007, the Allentown police obtained a warrant to search Santiago’s home and vehicle for a cellular telephone, based on two affidavits of probable cause submitted by police detectives. In those affidavits, the detectives indicated that a witness to an Allentown homicide had been been in contact with that telephone multiple times on the day of the crime, including a call just nine minutes prior to the homicide. The witness admitted that he had been at the scene of the crime in order to buy illegal drugs, but he lied about who owned the cellular telephone in question. The detectives determined that the cellular telephone belonged to Santiago, and they obtained cell site location records that revealed that the cellular telephone had been in the approxi*225mate area of the homicide around the time of the crime.
The police executed the warrant on November 2. They detained Santiago outside his home while he was getting into his car and found a .40 caliber semiautomatic handgun on his person. The police then searched his house and, based on their plain view observations of drug trafficking evidence, obtained a warrant to search the residence for drugs and ammunition. That search revealed a full box of 39mm ammunition.
Santiago was charged in a four-count indictment, as described above. He moved to suppress the evidence seized during the execution of the warrant, alleging that the initial warrant failed to establish probable cause. The District Court denied that motion, and Santiago subsequently pled guilty to all charges, conditioned on his being able to appeal the suppression denial after his conviction. At sentencing, the District Court calculated Santiago’s base offense level for possession of the firearm and ammunition to be 20 under § 2K2.1(a)(4)(A) of the Sentencing Guidelines, determining that Santiago’s prior conviction for reckless endangerment of another person qualified as a “crime of violence.” The court sentenced Santiago to a total of 120 months imprisonment, and Santiago appealed.1
II. Discussion
A. Motion to Suppress
Santiago first argues that the District Court erred in denying his motion to suppress the evidence obtained pursuant to the initial search warrant for the cellular telephone. He contends that “the search warrant was devoid of probable cause to believe that the cellular telephone sought was or contained evidence relating to the homicide being investigated.”
The District Court denied the suppression motion based on the facts set forth in the affidavit. In reviewing this denial, we “sit[] like a district court and must, like the district court, give great deference to the magistrate judge’s probable cause determination.” United States v. Hodge, 246 F.3d 301, 305 (3d Cir.2001). Our role “is not to decide probable cause de novo, but to determine whether ‘the magistrate had a substantial basis for concluding that probable cause existed.’ ” United States v. Steam, 597 F.3d 540, 554 (3d Cir.2010) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).
We agree with the District Court that the affidavits “contain ample indicia of probable cause that Defendant’s cellular telephone was evidence of a crime.” The affidavits contained information indicating that Santiago owned the cellular telephone in question, that he had been in contact with a witness immediately before the homicide, and that he had been in the vicinity of the homicide. We, therefore, hold that the District Court had a substantial basis to conclude that there was probable cause that Santiago’s cellular telephone would contain evidence pertaining to the homicide.
B. “Crime of Violence”
We exercise plenary review over the District Court’s determination that Santiago’s prior Pennsylvania conviction for reckless endangerment of another person was a “crime of violence.” United States v. Johnson, 587 F.3d 203, 207 (3d Cir.2009). Under the Sentencing Guidelines, a *226firearm offense in violation of 18 U.S.C. § 922(g)(1) carries a base offense level of 20 if the offender had previously committed a “crime of violence” or a “controlled substance offense.” U.S.S.G. § 2K2.1(a)(4)(A). A “crime of violence” is defined as
“any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”
Id. § 4B1.2(a).
The question presented in this appeal is whether the Pennsylvania reckless endangerment offense is of the type that would justify its inclusion within § 4B 1.2(a)(2), known as the “residual provision.” See Johnson, 587 F.3d at 208. Santiago had previously been convicted and sentenced to 23 months’ imprisonment for reckless endangerment under 18 Pa. Cons.Stat. § 2705. That statute provides that “[a] person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.”
The District Court determined that reckless endangerment fell within the residual provision, based on our decision in United States v. Parson, 955 F.2d 858 (3d Cir.1992), in which we held that a Delaware conviction for reckless endangerment was a crime of violence. Santiago argues that, following Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), Parson’s holding must be reevaluated. He urges that reckless endangerment should no longer be considered a crime of violence because it lacks the requisite “purposeful” mens rea to fall within the residual provision.2
In Begay, the Supreme Court interpreted a virtually identical residual provision in the definition of “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii)- The Court found that the list of examples in the residual provision — burglary, arson, extortion, use of explosives — indicated that “the statute covers only similar crimes, rather than every crime that ‘presents a serious risk of physical injury to another.’ ” 553 U.S. at 142, 128 S.Ct. 1581 (citing 18 U.S.C. § 924(e)(2)(B)(ii)). And the Court concluded that crimes are similar to the enumerated examples if they involve “purposeful, violent, and aggressive conduct.” Id. at 144-45, 128 S.Ct. 1581 (internal quotation marks omitted).
We have applied Begay’s analysis to the definition of “crime of violence” and held that a prior conviction falls within § 4B1.2(a)’s residual provision “if it ‘typically involve[s] purposeful, violent, and aggressive conduct.’ ” United States v. Stinson, 592 F.3d 460, 465 (3d Cir.2010) (citing Begay, 553 U.S. at 144-45, 128 S.Ct. 1581); Johnson, 587 F.3d at 208.
To determine whether a crime involves “purposeful, violent, and aggressive conduct,” we apply “a categorical approach to classify a prior conviction,” asking “wheth*227er the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offender.” Johnson, 587 F.3d at 208 (internal quotation marks omitted).
Johnson involved an intentional crime, but in dictum we questioned “whether reckless conduct may amount to a crime of violence post-Begay.” Id. at 210 n. 8. We further noted that “nearly every court of appeals that has considered the issue has held that reckless conduct does not qualify as a crime of violence post-Begay.” Id. (citing United States v. Baker, 559 F.3d 443, 453 (6th Cir.2009); United States v. Roseboro, 551 F.3d 226, 242-43 (4th Cir.2009); United States v. Smith, 544 F.3d 781, 786-87 (7th Cir.2008); United States v. Gray, 535 F.3d 128, 131-32 (2d Cir.2008)).
After this appeal was filed, our Court issued its decision in United States v. Lee, 612 F.3d 170, 195-97 (3d Cir.2010), in which we joined our sister circuits in holding that “following Begay, a conviction for mere recklessness cannot constitute a crime of violence.”3 Accordingly, the District Court erred in determining that Santiago’s prior reckless endangerment conviction was a crime of violence under U.S.S.G. § 2K2.1(a)(4)(A).
This conclusion, however, does not end our analysis of this Sentencing Guidelines provision. The government argues that § 2K2.1(a)(4)(A) was nonetheless applicable because the presentence investigation report (PSR) also noted that Santiago had a prior controlled substance offense that would alternatively justify this sentencing enhancement. Even though this prior offense would qualify as a “controlled substance offense,” we find the government’s argument unavailing.
In order to increase Santiago’s sentence based on a prior crime of violence or controlled substance offense, the sentencing court can “use only those felony convictions that receive criminal history points under § 4Al.l(a), (b), or (c).” U.S.S.G. § 2K2.1(a)(4)(A) cmt. n. 10. Under § 4Al.l(a)-(e), a prior offense can receive a maximum of 3 criminal history points if it resulted in a “sentence of imprisonment exceeding one year and one month.” Id. § 4Al.l(a). Here, the PSR did not assign any criminal history points to Santiago’s controlled substance offense because he was simultaneously sentenced for both this crime and a prior escape offense. The Sentencing Guidelines direct that when an offender is sentenced on the same day for two crimes committed without an intervening arrest, the two sentences are to be considered a single sentence for criminal history purposes. Id. § 4A1.2(a)(2). Santiago’s escape and controlled substance offense sentences were, accordingly, combined as a single sentence. The PSR assigned 3 points to the escape crime, which is the same number of points that the escape offense would have received on its own. Because the addition of the controlled substance offense did not increase the criminal history points for the escape offense, the controlled substance offense did not receive any criminal history points under § 4Al.l(a), (b), or (c). See id. § 4Al.l(f), cmt. n. 6. Therefore, this prior conviction cannot serve as an alternative justification *228for the District Court’s application of § 2K2.1(a)(4)(A).4
Because Santiago’s prior reckless endangerment offense was not a “crime of violence” and his controlled substance offense received no criminal history points, the District Court erred in applying § 2K2.1(a)(4)(A) to increase his sentence.
C. Felon in Possession of Handgun and Ammunition
Santiago’s third and final argument is that the District Court erroneously entered separate counts of conviction for possession both of a handgun and of ammunition under 18 U.S.C. § 922(g)(1). Because this issue was not preserved in the District Court, we will reverse only if the District Court committed a plain error that affected Santiago’s substantial rights. Fed. R.Crim.P. 52(b); United States v. Tann, 577 F.3d 533, 535 (3d Cir.2009). In Tann, we held that “possession of both a firearm and ammunition, seized at the same time in the same location, supports only one conviction and sentence under § 922(g)(1).” 577 F.3d at 537. Santiago asserts that Tann dictates that his simultaneous possession of both a firearm and ammunition should count as one conviction, even though the gun was found outside the home and the ammunition was discovered inside. Our holding in Tann, however, left open the possibility that multiple convictions for possession of a firearm and ammunition might be proper if they were seized in different locations or if they were acquired in separate transactions. Id. at 536-37. Therefore, Tann does not make it per se improper to impose separate convictions and sentences for the simultaneous possession of both a firearm and ammunition.
To meet his burden of establishing plain error, Santiago argues that, had the police executed the warrant moments earlier while he was still in his home, he could not have been charged with multiple offenses because the gun and the ammunition would have both been in the same location. We are not persuaded by this argument because multiple convictions would still have been appropriate if the gun and the ammunition had been purchased separately. But, because Santiago pled guilty to the separate counts and did not object to the separate convictions, the record is devoid of any evidence concerning how and when these items were acquired. Accordingly, we cannot find that the District Court committed plain error in entering separate convictions pursuant to § 922(g)(1) for gun and ammunition possession.
III. Conclusion
For the reasons discussed above, we will affirm Santiago’s conviction, but we will vacate his sentence and remand for re-sentencing.
. The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291.
. In the District Court, the government argued that Parson was controlling. On appeal, however, the government concedes that, post-Begay, reckless endangerment is not a crime of violence. Even though the government concedes this point, "a government concession of law is not binding on this court.” United States v. Marino, 682 F.2d 449, 455 (3d Cir.1982) (internal quotation marks omitted).
. Even though Lee’s holding parted with our precedent in Parson, "a panel of our Court may decline to follow a prior decision of our Court without the necessity of an en banc decision when the prior decision conflicts with a Supreme Court decision." Johnson, 587 F.3d at 207 n. 4 (internal quotation marks omitted).
. On remand, if the District Court determines that the outcome of treating these two sentences as a single sentence underrepresents Santiago's criminal history, it may decide that an upward sentencing departure is warranted. U.S.S.G. § 4A1.2 cmt. n. 3 | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480274/ | Vacated and remanded by unpublished opinion. Judge GREGORY wrote the opinion, in which Judge AGEE and Judge DAVIS joined.
Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:
Xavier Jennette (“Jennette”) appeals the sentence imposed after he was convicted of aggravated identity theft and wire fraud in the Eastern District of North Carolina. In particular, Jennette argues that the district court abused its discretion in denying his motion for substitute counsel. We hold that the district court erred in denying Jennette substitute counsel for his sentencing, and thus vacate his sentence and remand his case to the district court for resentencing.1
I.
In October 2003, Jennette was hired to work as the facilities security officer at Object Science Corporation (“OSC”), a government information technology contracting firm. In that capacity, he managed employees’ personal information that was sent to the Department of Defense in order to maintain the employees’ security clearances. He alone managed the access to the secure personal information database.
In November 2004, Jennette left OSC and moved to New Bern, North Carolina. There, he reconnected with his former met Aiesha Horton (“Horton”). In July 2005, he asked Horton to obtain a mobile phone for him and provided her with a list of names and social security numbers to use to set up the account. The list contained the personal information of employees of OSC. Jennette selected Kimberly Barrus’ name and information from the list to use to obtain the phone. Horton ended up procuring six phones that day in Barrus’ name.
Because he was successful in using another person’s information to obtain phones, Jennette found other ways to use the list. With Sadler, he acquired a Wal-Mart Discover Card using Jessica Nelson’s information on July 10, 2005. They used the card to make purchases at restaurants, gas stations, furniture stores and Wal-Mart. After Jennette was arrested, some of the furniture they purchased was found at his mother’s house.
Horton kept a copy of the list that Jen-nette had showed her when she obtained the phones, and Anthony Wallace (“Wallace”), her boyfriend, used it to obtain credit. Wallace, with Jennette’s help, bought between fifty and seventy mobile phones, which they resold on the street. They made additional money by calling the phones that they sold and asking for payment for the phone service while posing as a Sprint representative. Finally, Wallace and Jennette used the list to obtain credit at Target, Sears and Lowe’s where they bought electronics and tools to resell and pawn. After Wallace was arrested, a printout from the database used to store OSC employees’ personal information was found in his car.
Jennette was indicted with Sadler, Horton, and Wallace in a eleven-count indictment charging them with conspiracy (Count One), wire fraud (Counts Two through Eight), aggravated identity theft (Counts Nine and Ten), and obstruction of justice (Count Eleven). Counts Six through Eight and Eleven were dismissed by the court upon motion by the government prior to trial. Jennette was tried by a jury. During trial, he took the stand in his own defense. He explained that he often printed copies of the list of OSC *305employees and their personnel information for his weekly meetings with personnel managers. As for the list found in Wallace’s car, Jennette acknowledged that he was the one who printed it, but he denied any knowledge of the identity theft scheme. He stated that he did not know how the list was removed from OSC and how Sadler and the others had come to possess it. He testified that the mobile phone and furniture were both gifts from Sadler. The jury found him guilty on all of the remaining counts.
Jennette was scheduled for sentencing on March 7, 2007. On February 21, 2007, approximately two weeks before sentencing, his counsel moved for a continuance and moved to withdraw from representation because “communications between counsel and the defendant have broken down to the point that it would be best for all parties if new counsel from outside the Office of the Federal Public Defender represents Mr. Jennette.” J.A. 1057.2 The government opposed the motion on the basis that the motion to withdraw did not state a valid reason for withdrawal, it was untimely, and the continuance would burden the victims who wanted to testify at sentencing. A week later, the government made a motion for an upward departure from the guidelines on the basis that the guidelines sentence understated the harm caused. In particular, the government argued that Jennette harmed 124 current and former OSC employees who were not considered victims under the guidelines.
At sentencing, the district court took up the motion to withdraw. Defense counsel represented that when he met with Jen-nette to go over the presentence report (“PSR”), their communication broke down so significantly that he did not believe they could cooperate going forward. Counsel stated that the root of the problem was that Jennette believed that he was “cast aside” at trial, and as a result they had not even been able to agree on what factual issues to challenge at sentencing. The court asked Jennette for his view and he stated, “Well your honor, since, before, during, and after the trial, I have been severely dissatisfied with the representation that I have received from counsel.” J.A. 1080-81. In particular, Jennette was dissatisfied with counsel’s failure to raise certain issues important to him at trial and their inability to agree on objections to the PSR. Indeed, Jennette stated that they had been unable to even review the PSR because they could not communicate effectively.
The court denied the motion and decided to give Jennette the chance to make all of his objections to the PSR in open court by going through it with the judge. Jen-nette represented that he had already written down all of his objections, but that the paper was at the jail because he was told that he could not bring anything to court. As the judge went over the PSR, defense counsel made objections for Jen-nette; Jennette did not speak at all. Defense counsel objected to all the sentencing enhancements. He also argued against the government’s motion for upward departure on the basis that it was only speculation as to the harm suffered, because not every employee’s information was stolen and used and there was no basis whatsoever for fixing the loss at $1000 per person. The court continued the sentencing in order to have time to consider the motion for upward departure.
On March 30, 2007, the court reconvened and imposed sentence. The court granted the government’s motion for upward departure on the basis that Jennette occupied a position of trust with respect to *306the victims and caused substantial harm to at least thirty-nine victims, resulting in a guidelines range of seventy-eight to ninety-seven months. Jennette was then sentenced to ninety-seven months imprisonment on Counts One through Five and twenty-four months on Count Nine to run consecutively. Jennette timely appealed.
II.
The denial of a motion for substitution of counsel is reviewed for abuse of discretion. United States v. Corporan-Cuevas, 85 F.3d 953, 956 (4th Cir.1994).
III.
Jennette argues on appeal that his sentence should be vacated because the district court abused its discretion in denying his motion for substitution of counsel. Both he and his attorney represented that there had been a complete breakdown of communication between them such that they had not even reviewed the PSR together before sentencing. The government argues that mere allegations of dissatisfaction with counsel are insufficient to trigger the appointment of substitute counsel, and if there was any error it was harmless because the district court went over the PSR with the defendant. We, however, agree with Jennette and hold that the district court abused its discretion in denying the motion.
A.
While a criminal defendant has a right to counsel of his own choosing, that right is not absolute. Powell v. Alabama, 287 U.S. 45, 52, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Sampley v. Attorney Gen. of N.C., 786 F.2d 610, 612 (4th Cir.1986). In particular, a defendant’s right to choose his own counsel is limited so as not to “deprive the courts of the exercise of their inherent power to control the administration of justice.” United States v. Gallop, 838 F.2d 105, 108 (4th Cir.1988). It then follows that a defendant’s right to receive substitute counsel after the court’s initial appointment is similarly limited. Thus, a defendant must show good cause as to why he should receive substitute counsel. Id. In general, good cause exists when denying substitute counsel would deny the defendant a constitutionally adequate defense. United States v. Johnson, 114 F.3d 435, 443 (4th Cir.1997) (“A total lack of communication is not required. Rather an examination of whether the extent of the breakdown prevents the ability to conduct an adequate defense is the necessary inquiry.”); United States v. Mullen, 32 F.3d 891, 897 (4th Cir.1994).
The district court has discretion to decide whether substitution of counsel is proper. Gallop, 838 F.2d at 108. In making its decision, the district court must consider both the defendant’s reason for seeking substitution and the government’s interest in proceeding without a continuance. Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983); United States v. Reevey, 364 F.3d 151, 157 (4th Cir.2004). In reviewing the district court’s decision on a motion for substitution, this Court looks at three factors: the “[t]imeliness of the motion; [the] adequacy of the court’s inquiry into the defendant’s complaint; and whether the attorney/client conflict was so great that it had resulted in a total lack of communication preventing an adequate defense.” Gallop, 838 F.2d at 108.
B.
The Gallop factors counsel that the district court abused its discretion in denying the motion to substitute. First, Jennette’s motion was timely. The motion was filed two weeks before his sentencing was *307scheduled. Though at the time it was filed there were only two days before the defendant’s objections to the PSR were due, the motion was still timely because it gave plenty of time for new counsel to be appointed and sentencing to continue. Compare Mullen, 32 F.3d at 896 (holding that a motion for substitution filed twenty-three days before trial was timely), with United States v. Dukes, 1998 WL 188634, at *4 (4th Cir. Apr.21,1998) (unpublished) (holding that a motion for substitution filed ten days before the start of a multi-defendant trial was untimely). The government’s argument regarding the other codefendants and coordination with the victims that wished to make a statement is somewhat disingenuous. The government can point to no particular victim that it anticipated testifying, and indeed no testimony was presented at sentencing. Additionally, Jennette had never made a motion for substitution or a continuance before. When a defendant makes a successive motion for continuance, the court may often scrutinize his reasons for seeking the substitution more carefully. See Gallop, 838 F.2d at 108 (discussing how a prior motion for substitution and continuance followed by another motion for substitution five days prior to trial betrayed the defendant’s motivation to delay the trial and rendered his request untimely). Instead, here Jen-nette’s motion to substitute counsel was timely and was his only request to do so.
As to the second Gallop factor, the district court did make an adequate inquiry into the cause of the problems between counsel and the defendant. Mullen, 32 F.3d at 896 (“When a defendant raises a seemingly substantial complaint about counsel, the judge has an obligation to inquire thoroughly into the factual basis of defendant’s dissatisfaction.” (citation and internal quotation marks omitted)). The district judge here asked both defense counsel and the defendant about the problems they were experiencing, both in terms of cause and effects, and received lengthy replies on the record.
Although the district court adequately addressed the second Gallop factor, the extent of the breakdown in communication between Jennette and his counsel was so significant that it mandated substitution of counsel under the third factor. As stated above, the defendant must have good cause for seeking substitute counsel, and a breakdown in communication which denies the defendant an adequate defense constitutes good cause. Here, the evidence before the district court was that communication had broken down between the defendant and his counsel so significantly that they could not come to an agreement on what objections to make to the PSR, and indeed had not even had the chance to go over it together. The government argues that instead of a breakdown in communication, Jennette only generally disagreed with how counsel had handled the trial. While generalized disagreement with counsel is not a sufficient reason for substitution, here the adverse impact was beyond mere disagreement, such that there was a “total lack of communication” in this case. Gallop, 838 F.2d at 109. Both defense counsel and Jennette stated that they had not had a chance to review the PSR together, and indeed had not really spoken since the trial concluded, certainly a fundamental step for adequate representation at sentencing.
We must therefore determine whether that lack of communication deprived the defendant of an adequate defense at sentencing. The government argues that because the district judge went over the PSR with Jennette in open court, any error in failing to substitute counsel was harmless. This argument must fail *308for two reasons. First, the district court must have found a significant problem with communication between Jennette and his counsel, as the district court conducted what otherwise would have been counsel’s duty, the initial review of the PSR with the defendant. The district court’s assumption of this role demonstrated that it had found merit in counsel’s and Jennette’s claim that there was a breakdown in communication. Although laudable, going over the PSR with the district judge in open court can hardly be said to substitute for a private, attorney-client-privileged conversation with counsel before sentencing even begins. Additionally, though defense counsel did make objections, those objections cannot be said to have been effective because they were pro forma and without the benefit of consultation with the defendant beforehand.3 See Mullen, 32 F.3d at 897 (discussing how the inability to confer with the defendant before trial denied the defendant an adequate defense).
Therefore, given the effects of the breakdown in communication, the failure to substitute Jenette’s counsel was an abusé of discretion.
IV.
For the reasons detailed above, we vacate Jennette’s sentence and remand his case to the district court for resentencing.
VACATED AND REMANDED.
. As we vacate Jennette’s sentence because he was denied substitute counsel, we do not address the other two arguments he raises: that the district court clearly erred in applying offense level enhancements and departing above the guidelines range; and that delays in filing his transcript on appeal denied him due process.
. "J.A.-" refers to the joint appendix submitted by the parties on appeal.
. Indeed, counsel represented at oral argument that during sentencing, had counsel and Jennette been able to work together, counsel likely would have introduced testimony from several witnesses, including Jennette’s family and supervisors at work. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480275/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: .
Carlos Woods appeals the district court’s order denying his Fed.R.Crim.P. 33 *333motion for a new trial. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Woods, No. 1:07-cr-00127-WDQ-1 (D.Md. Feb. 19, 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/8480280/ | PER CURIAM: *
The Federal Public Defender appointed to represent Felipe Medrano-Victoria 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). Medrano-Victoria 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/8480281/ | PER CURIAM: *
The attorney appointed to represent John Howard Gunter 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). Gunter 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. Counsel’s motion for leave to withdraw due to his appointment as a United States Magistrate Judge is DENIED as moot.
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/8480283/ | ORDER
Perry Marshall, a member of the International Brotherhood of Electrical Work*625ers, Local 701, sued that union and two union officials for violating his speech rights under the Labor-Management Reporting and Disclosure Act. He claimed that they retaliated against him for speaking out about how union officials were violating union rules. The defendants moved for summary judgment, and after striking various parts of the documents Marshall filed in response, the district court granted their motions. Marshall appeals. We affirm.
I.
The International Brotherhood of Electrical Workers, Local 701, is a party to a collective bargaining agreement with an Illinois employer association of electrical contractors. That agreement contains referral provisions under which applicants for employment are placed in jobs with signatory employers through Local 701’s referral hall. Referrals by Local 701 are made according to an applicant’s position on an out-of-work list. Normally, once an applicant accepts a referral, his name goes to the bottom of the list and he must wait until those above him accept referrals before he is eligible for another one. An exception to that rule is for a “short call,” which is when an applicant is hired and receives, through no fault of his own, work for less than fourteen days. If an applicant receives a short-call assignment, he is restored to his original spot on the out-of-work list. And under a rule adopted by Local 701, once an applicant accepts a referral, he must report to the job unless there is an emergency or illness. If he does not, he loses his spot on the list.
Perry Marshall is a member of Local 701. From time to time, he spoke out against decisions made by union officials that were inconsistent with various union rules and agreements. Other union members often sought Marshall’s advice on union rules, and he would speak on their behalf. Some union representatives did not welcome Marshall’s outspokenness and berated him because of it.
In August 2002, Marshall was fifth on the out-of-work list and accepted a referral. When he arrived at the job site, however, he told the project foreman that he could not work that day because of personal reasons. That evening, Kenneth Lambert, a Local 701 representative in charge of referrals, phoned Marshall, informed him that the foreman had complained of his absence, and indicated that he would lose his place on the list. After Local 701 representatives visited the job site the following day, Art Ludwig, business manager of Local 701, determined that Marshall had violated the referral rule by failing to appear to work at the job site. Ludwig sent him a letter indicating that he was being removed from his number five spot on the out-of-work list, although that decision would be stayed until he exhausted his appeal rights.
Marshall appealed to the three-member appeals committee established by the collective bargaining agreement. (The appeals committee consists of one person appointed by Local 701, one person appointed by the employer association, and one member of the public selected by the previous two appointees). The committee met and requested Marshall provide documentation of his personal situation that prompted him to leave the job site. The committee indicated that Marshall could keep his spot on the list if he provided such proof but would lose it if he could not. He provided none, so the appeals committee upheld his removal from the fifth position on the out-of-work list.
Marshall then contacted IBEW Sixth District vice-president Lawrence Curley and sought to bring an appeal under the IBEW constitution. Curley denied that *626request because, under a longstanding interpretation of the IBEW constitution, appeals concerning a local union’s actions under the job referral provisions of a collective bargaining agreement are heard in accordance with the appeals procedures outlined in the agreement rather than the ones in the IBEW constitution.
Over the next two weeks, Marshall filed eighteen charges against three Local 701 officers, alleging violations of various referral procedures. Pursuant to IBEW procedure, Curley assigned a union representative to look into those allegations. The investigator issued a report, concluding that the charges lacked merit. Based on that report, Curley dismissed the charges. Nearly a year later, Marshall filed charges against Ludwig, which Cur-ley dismissed as untimely.
Marshall then sued Local 701, Ludwig, and Curley under the Labor-Management Reporting and Disclosure Act of 1959 (“LMRDA” or “Act”), for violating his speech rights guaranteed by Title I of the Act, 29 U.S.C. §§ 411-15. He alleged that the defendants’ actions relating to his removal from the out-of-work list were retaliation for his previous speaking out against decisions made by union officials that were violative of union rules and agreements.
The defendants moved for summary judgment. As part of his response, Marshall submitted a lengthy affidavit, responses to the defendants’ statements of material fact, and additional material facts. The defendants filed separate motions to strike numerous portions of those submissions. The district court granted those motions to strike in part, concluding that various segments of Marshall’s response documents did not comply with Federal Rule of Civil Procedure 56(e) and Local Rule 56.1. The court then entered summary judgment for the defendants. In particular, the district court held that Marshall had not shown that Curley’s actions were caused by Marshall’s exercise of his LMRDA speech rights. As for Local 701 and Ludwig, the court held that Marshall had acquiesced to their argument that he could not recover against them because the independent, non-union appeals committee was the final decision maker regarding his removal from the out-of-work list. Marshall appeals the district court’s decisions on the defendants’ motions to strike and motions for summary judgment.
II.
A. Motions to Strike
We review a district court’s ruling on a motion to strike an affidavit or statement of facts for an abuse of discretion. Magyar v. Saint Joseph Reg’l Med. Ctr., 544 F.3d 766, 770 (7th Cir.2008); Winfrey v. City of Chicago, 259 F.3d 610, 618-19 (7th Cir.2001). Marshall does not present any argument in support of his bare assertion that the district court’s striking portions of his responses to the defendants’ statements of material fact and his additional material facts was improper, so the point is waived. Capitol Indem. Corp. v. Elston SelfServ. Wholesale Groceries, Inc., 559 F.3d 616, 619 (7th Cir.2009). And he concedes that the district court correctly struck the portions of his affidavit it determined were hearsay, duplicative, and legal arguments and conclusions. Marshall does contest, however, the court’s striking the parts of his affidavit it concluded were not based on personal knowledge and were not accompanied by supporting documents. Under Federal Rule of Civil Procedure 56(e)(1), an affidavit must “be made on personal knowledge.” The district court struck twelve full paragraphs and nine partial ones from Marshall’s affidavit for lack of personal knowledge. On appeal, Marshall claims that he supplied foundational support for his statements by *627referring to conversations he had and observations he made. But the stricken paragraphs simply do not bear out that assertion, for none of them refers to such personal bases of knowledge. We thus find no abuse of discretion in the district court’s striking those portions of his affidavit.
Rule 56(e)(1) also provides that “[i]f a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit.” The district court struck parts of four paragraphs of the affidavit because the documents mentioned therein were not attached. Marshall admits he did not attach those materials to his affidavit but says that was because the defendants had already submitted the same documents in support of their motions for summary judgment.
Marshall did not comply with Rule 56(e)(1) when he failed to file the relevant supporting documents. Even if he was concerned about duplicative filings, he did not obtain the permission of the court to deviate from Rule 56(e)(1). Furthermore, the citations he did include were not keyed to the defendants’ previous filings. Under these circumstances, the district court did not abuse its discretion in striking the four parts of Marshall’s affidavit for want of supporting documentation.
B. Motions for Summary Judgment
We review a district court’s grant of summary judgment de novo, viewing all facts in the light most favorable to and drawing all reasonable inferences for the nonmoving party. Goelzer v. Sheboygan County, 604 F.3d 987, 992 (7th Cir.2010). Summary judgment is appropriate “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 enti-tied to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2).
Title I of the LMRDA developed from legislation that was “aimed at enlarged protection for members of unions paralleling certain rights guaranteed by the Federal Constitution.” Finnegan v. Leu, 456 U.S. 431, 435, 102 S.Ct. 1867, 72 L.Ed.2d 239 (1982). Section 101(a)(2) of the Act provides that
[ejvery member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings.
29 U.S.C. § 411(a)(2). In that subsection, Congress “restate[d] a principal First Amendment value — the right to speak one’s mind without fear of reprisal.” United Steelworkers of Am. v. Sadlowski, 457 U.S. 102, 111, 102 S.Ct. 2339, 72 L.Ed.2d 707 (1982). “In providing such protection, Congress sought to further the basic objective of the LMRDA: ‘ensuring that unions are democratically governed and responsive to the will of their memberships.’ ” Sheet Metal Workers’ Int’l Ass’n v. Lynn, 488 U.S. 347, 352, 109 S.Ct. 639, 102 L.Ed.2d 700 (1989) (quoting Finnegan, 456 U.S. at 436, 102 S.Ct. 1867).
A union member may sue when his § 101(a)(2) free speech rights have been infringed. 29 U.S.C. § 412. One type of infringement is when a member faces retaliation because he exercised his speech rights. To succeed on such a claim, the member must establish: (1) he engaged in protected expression, (2) he was subjected *628to an adverse action1 reasonably likely to deter future expression, and (3) that action was caused by the protected expression.2 See Lynn, 488 U.S. at 354, 109 S.Ct. 639; Casumpang v. Int’l Longshoremen’s & Warehousemen’s Union, Local 142, 269 F.3d 1042, 1058 (9th Cir.2001).
Regarding defendant Curley, assuming Marshall has established the first two elements, he has failed to establish causation. Marshall contends that Curley conspired with Local 701 to enforce the allegedly wrongful removal of his name from the out-of-work list. Although not entirely clear, it appears Marshall is arguing that Curley’s refusal to accept his appeal of the appeals committee’s decision and dismissal of his subsequent internal union charges was because of his protected expression. Marshall’s causation argument is based primarily on his affidavit statements (which particular ones, he does not say) relating to Curley’s motivations for his actions that the district court struck. But our affirmance of the district court’s ruling on the motions to strike scuttles that particular argument.
Marshall’s brief can also be read to assert that no other union members had their appeals refused under the IBEW constitution or were denied the right to complain of violations of union rules and agreements. Even if that proposition were suggestive of causation, it is unsupported by the record: Marshall has not adduced proof of any similarly situated members who were treated more favorably by Curley. Marshall also points to the fact that in dismissing his charges, Curley relied solely on the report of the investigator assigned to look into the charges. But it is not clear how that may be indicative of causation, and Marshall does not say. Absent the development of any other argument or identification of any evidence regarding the causation element, we conclude that summary judgment was appropriate for Curley. See Roe-Midgett v. CC Servs., Inc., 512 F.3d 865, 876 (7th Cir.2008) (failure to develop challenge to summary judgment order constitutes waiver).
Regarding defendants Local 701 and Ludwig, the district court granted their motion for summary judgment. It determined Marshall had waived opposition to their argument that the independent, non-union appeals committee was the final decision maker concerning his removal from the out-of-work list and, therefore, under Konen v. International Brotherhood of Teamsters, 255 F.3d 402 (7th Cir.2001), they are not liable under the LMRDA because they were not responsible for his removal. The district court’s decision was based on Wojtas v. Capital Guardian Trust Co., where we affirmed the lower court’s ruling that the plaintiffs’ failure to respond to the defendant’s argument in support of a motion for judgment on the pleadings constituted a waiver and justified granting the motion. 477 F.3d 924, 926 (7th Cir.2007) (citing Cincinnati Ins. Co. v. E. Atl. Ins. Co., 260 F.3d 742, 747 (7th Cir.2001)).
Marshall’s lone argument against the district court’s finding of waiver was that it *629was based on the incorrect disposition of the motions to strike. But the propriety of the partial granting of those motions was not implicated by the district court’s waiver determination: that conclusion was based on Marshall’s failure to respond in his brief to the defendant’s arguments based on Konen. Whatever the case, Marshall’s argument founders in light of our affirmance of the district court’s rulings on the motions to strike. Therefore, we affirm the grant of summary judgment for Local 701 and Ludwig.
III.
In sum, the district court did not abuse its discretion by granting in part the defendants’ motions to strike. We also conclude that summary judgment was appropriate for the defendants. Accordingly, the judgment of the district court is AFFIRMED.
. From our review of the record, it is unclear whether Marshall's LMRDA claim is for mere infringement of his Title I speech rights based on § 102 of the Act, 29 U.S.C. § 412, or for being subjected to union-authorized "other discipline” as proscribed by § 609 of the Act, 29 U.S.C. § 529. See Finnegan, 456 U.S. at 439 & n. 10, 102 S.Ct. 1867. But as our discussion will show, this issue is immaterial to the ultimate resolution of his appeal.
. As we recently made clear in Serafinn v. Local 722, International Brotherhood of Teamsters, 597 F.3d 908, 914-15 (7th Cir.2010), the causation the plaintiff must prove under the LMRDA is the "but-for” type. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480284/ | ORDER
DeAngelo Cross appeals the district court’s denial of his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). Specifically, he argues that Amendment 599 to the sentencing guidelines shows that he was double-punished when he was sentenced for bank robbery and under 18 U.S.C. § 924(c) for using a gun during that robbery.
Cross was sentenced after he pleaded guilty to four counts of bank robbery, 18 U.S.C. § 2118, and one count of using a firearm in furtherance of the fourth bank robbery, 18 U.S.C. § 924(c). During sentencing, the court increased the offense level for the first three bank robbery counts because Cross brandished or possessed a firearm. U.S.S.G. § 2B3.1(b)(2)(C). The court did not apply a similar increase for the fourth robbery because of instructions in an application note to U.S.S.G. § 2K2.4 that a sentence not be enhanced for use of a firearm if a defendant is also being sentenced for using a firearm under 18 U.S.C. § 924(c). U.S.S.G. § 2K2.4, cmt. n. 2 (1998).1 The court sentenced Cross to 220 months’ imprisonment on each of the first four counts, to run concurrently, and 84 months’ imprisonment on the fifth count under § 924(c)(1), to run consecutively with the sentences on the first four counts. The court later denied Cross’s § 3582(c) motion on grounds that Amendment 599 did not affect his sentence under § 924(c).
Cross maintains on appeal that Amendment 599 sought to shield defendants from “duplicated punishment,” which occurs, he argues, when a defendant receives both a sentence for a violent crime in which a gun was used and a sentence under § 924(c) for using a gun during that crime. But Amendment 599 simply altered the application note and clarified the circumstances when a court may impose a weapon’s enhancement for a defendant convicted of a firearm offense under § 924(c). United States v. Alcala, 352 F.3d 1153, 1156 (7th Cir.2003); United States v. Howard, 352 F.3d 332, 338 (7th Cir.2003). As amended, the application note states that “if a defendant is convicted of two armed bank robberies, but is convicted under 18 U.S.C. § 924(c) in connection with only one of the robberies, a weapon enhancement would apply to the bank robbery which was not the basis for the 18 U.S.C. § 924(c) conviction.” U.S.S.G. § 2K2.4, cmt. n. 4 (2009). Because Cross did not receive a weapon enhancement for the fourth bank robbery count, the district court correctly concluded that Amendment 599 did not alter Cross’s sentence.
AFFIRMED.
. The text of this note is now at Application Note 4. See U.S.S.G. app. C, amend. 642. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480285/ | ORDER
Darrell Wellman, Jr., pleaded guilty to possessing a firearm as a felon, 18 U.S.C. § 922(g)(1), and the district court sentenced him to 60 months’ imprisonment. Wellman filed a timely appeal, but his appointed counsel cannot find any nonfriv-olous issue to raise on appeal and therefore moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Wellman did not accept our invitation to respond to counsel’s motion. See Cm. R. 51(b). Our review is limited to the issues that counsel has outlined in his brief. See United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009); United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Although counsel notes that the district court failed to inform Wellman during his plea colloquy of its obligation to impose a special assessment of $100, see Fed. R. Crim. P. ll(b)(l)(L), counsel also points out that Wellman does not wish to withdraw his plea. Counsel, therefore, correctly bypasses discussing whether this omission (or any other errors) affected the adequacy of Wellman’s plea colloquy or the volun-tariness of his plea. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002).
Counsel finds no possible error in the guidelines calculation, and so considers only whether Wellman could contest the reasonableness of his sentence. But he uncovers no possible challenge that would disturb the presumption of reasonableness that would attach to Wellman’s within-guidelines sentence. Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Pulley, 601 F.3d 660, 668 (7th Cir.2010). Our review confirms that the district court properly calculated a guidelines imprisonment range of 57 to 71 months, based on an offense level of 19 and a criminal history category of V. And we agree that the district court adequately explained Well-man’s sentence in relation to the sentencing factors listed in 18 U.S.C. § 3553(a), focusing on Wellman’s disregard for his family’s and the community’s safety, his extensive criminal history beginning at age 14, his multiple convictions for gun crimes, and his pattern of ignoring court orders. Although the court acknowledged Well-*635man’s purported desire to change his ways and become a responsible father for his child, it determined that Wellman apparently had not learned from his previous shorter terms of incarceration and needed a 60-month sentence to deter future criminal conduct — an entirely reasonable conclusion.
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480287/ | ORDER
After Babubhai Patel was placed in removal proceedings by the Department of Homeland Security, he applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Following a hearing, an immigration judge (“IJ”) denied his asylum request because it was untimely and he had not shown he qualified for an exception to the filing deadline. The IJ also concluded Patel’s testimony was not credible and thus he was not entitled to withholding of removal or protection under the CAT. The Board of Immigration Appeals dismissed his subsequent appeal for substantially the same reasons the IJ denied his applications. Patel petitions for review of the Board’s order. Because we lack jurisdiction to review the Board’s conclusion that he did not qualify for an exception to the asylum application deadline, we dismiss that portion of his petition. With respect to the part of his petition challenging the Board’s rejection of his request for withholding of removal, we deny it because substantial evidence in the record supports the Board’s decision.
I.
The Department of Homeland Security charged Babubhai Patel, a native and citizen of India, with removability because he was an alien present in the United States without having been admitted or paroled. In January 2007, he conceded removability but applied for asylum, withholding of removal, and protection under the CAT. In a statement attached to his application, Patel, a Hindu, indicated that he had been a member of the Bharatiya Janata Party (“BJP”) since 1986. In December 1992, some of his Hindu BJP friends planned a march to Ayodhya, the location of a Muslim mosque — Babri Masjid — that was erected after Muslims destroyed a Hindu temple on the same site. Patel declined to participate and advocated peace between Hindus and Muslims. Because of his refusal, BJP members pushed his wife and 12-month-old child into a lake where they drowned. He was attacked by BJP extremists the same day. BJP personnel later threatened to hurt and kill him.
At a hearing before an IJ, Patel testified that he had joined the BJP in December 1992 and was a member until 1997. But he could not produce documentation of his membership because he lost it. He stated that in December 1992, ten thousand people, including BJP members, marched to Ayodhya to protest the mosque. Patel wasn’t one of them. The last time he saw his wife was November 30,1992, the day before BJP members pushed her and his *641daughter into a lake where they drowned. Patel opined that they were killed by BJP members because he refused to participate in the march. He wanted to view their bodies, but he decided against it after hearing that BJP members were lying in wait to kill him. He also stated that he did go to see his wife’s body but fled from his village of Dingucha to the city of Ah-medabad after BJP members attacked him. Before fleeing, he filed a police report concerning the killings. Patel testified that he remained a member of the BJP while he was in Ahmedabad. He stayed there until May 1998, when he entered the United States illegally.
In support of his testimony, Patel produced death certificates for his wife and child that were printed in English. He stated that a friend had obtained them from the police station where he had filed a report in 1992; he could not explain why they were issued in English. The death certificates were dated January 6, 1992. The IJ verified that Patel had joined the BJP in December 1992 and pointed out that his wife had died several months before he joined. Patel responded only that “[t]hey [indiscernible ] different dates.” The IJ then asked Patel whether his wife died before or after he joined the BJP. Patel responded, “before.” The IJ queried how she died, given that she died before he joined the BJP. Patel said that the BJP was responsible for her death and that he was a member of the BJP when she died.
Patel also testified that earlier in 2007, a friend from India had told him that BJP members were still searching for him and were bent on killing him because of his refusal to march on the mosque in 1992. He believes that if he goes back to India and complains about his wife’s death, the BJP will find out. None of his family in India has ever been threatened by the BJP.
When the IJ asked why Patel did not apply for asylum until after he was placed in removal proceedings, he responded that he had no one to help him and was confused. And when asked to produce a birth certificate for his daughter or a marriage certificate, he explained that a landlord in New Jersey had taken all his materials when he was ill. The IJ inquired why he had not asked the friend in India who had obtained the death certificates to also track down the marriage and birth certificates. Patel replied that those events had happened a long time ago, suggesting they may be difficult to find.
At the end of the hearing, the IJ denied Patel’s asylum application because it was filed more than a year after his arrival to the country and Patel had not proven he qualified for an exception to the one-year deadline. The IJ also denied his request for withholding of removal, finding his testimony was not credible because it was inconsistent and implausible, and his documentary evidence did not corroborate his statements. More specifically, the IJ pointed out that Patel had difficulty recalling the events from India, and the death certificates he submitted indicated they were produced by the public health department rather than, as he had said, the police. The IJ opined that even if the documents were authentic, the date of the deaths listed on them (January 6, 1992) did not jibe with Patel’s testimony that his wife and child had died in December 1992. The IJ also thought it implausible that the BJP would kill the wife and child of one of its members merely because he did not participate in one demonstration. Even assuming that account was accurate, the IJ found that Patel’s failure to flee India and his continued support of the BJP in Ahme-dabad for several years after it had killed his wife and child was not credible and undercut his argument that the BJP would *642harm him if he returned to India. For these reasons, the IJ determined that Patel had not established past persecution or a clear probability of future persecution that would justify withholding of removal. The IJ also denied Patel’s request for protection under the CAT because he could not satisfy the higher standard of proof required for relief under that provision.
Patel appealed to the Board of Immigration Appeals, which dismissed his appeal. The Board concluded that the IJ’s denial of his application for asylum was not based on clearly erroneous facts. It also determined that the record supported the IJ’s finding that Patel’s testimony was not credible and thus he did not qualify for withholding of removal and protection under the CAT. The evidence the Board pointed to was Patel’s inability to explain the discrepancy between his family members’ deaths in January 1992 and the attack on the mosque in December 1992, the differing stories of his conduct after their deaths and the ways in which they were buried, and his remaining in India for five years after their deaths. Patel petitions for review of the Board’s decision concerning his asylum ápplieation and request for withholding of removal.1
II.
We turn first to Patel’s challenge to the Board’s conclusion that he did not demonstrate he qualified for an exception to the one-year deadline for filing an asylum application. To apply for asylum, an alien must prove by clear and convincing evidence that his application was filed within one year of his arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). Late applications may be considered, however, “if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application” within the one-year window. Id. § 1158(a)(2)(D).
Under 8 U.S.C. § 1158(a)(3), we do not have jurisdiction to review a determination that a late filing was not justified by changed or extraordinary circumstances. Ishitiaq v. Holder, 578 F.3d 712, 715-16 (7th Cir.2009). So to the extent Patel asks us to review the Board’s factual or discretionary conclusions, id. at 716, his petition must be dismissed for want of jurisdiction.
Although judicial review of factual and discretionary determinations is statutorily removed, we do have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review “constitutional claims or questions of law.” Such questions of law must be “pure” 'ones — i.e., “situations in which a case comes out one way if the Constitution or statute means one thing, and the other way if it means something different.” Viracacha v. Mukasey, 518 F.3d 511, 515 (7th Cir.2008). Apparently aware of the § 1158(a)(3) jurisdictional bar, Patel attempts to cast his arguments in the § 1252(a)(2)(D) mold. He claims that the IJ committed errors of law by failing to adequately articulate his reasons for concluding Patel did not qualify for an exception to the one-year deadline and by not questioning him regarding changed country conditions and a medical condition that supposedly accounted for his late filing. But Patel does not indicate which particular legal provisions he thinks these allegations traverse. Even assuming his arguments raise constitutional claims or pure questions of law, we are *643unable to address them because, as the Attorney General points out, Patel failed to exhaust his remedies by presenting them to the Board.2 8 U.S.C. § 1252(d)(1); see Korsunskiy v. Gonzales, 461 F.3d 847, 849 (7th Cir.2006).
We now turn to Patel’s challenge to the Board’s denial of his withholding of removal claim, which we do have jurisdiction to review. Zaidi v. Ashcroft, 377 F.3d 678, 681 (7th Cir.2004). To qualify for withholding of removal under 8 U.S.C. § 1231(b)(3), an alien is required to establish there exists a “clear probability” — i.e., it is more likely than not — he will be subjected to persecution in the proposed country of removal. Benitez Ramos v. Holder, 589 F.3d 426, 431 (7th Cir.2009). Demonstration of past persecution in the country of removal creates a rebuttable presumption that an alien will face persecution if he returns. 8 C.F.R. § 208.16(b)(1)®; see also Zaidi, 377 F.3d at 681.
Where, as here, the Board adopted and supplemented the IJ’s decision, we review the IJ’s decision as supplemented. Raghunathan, 604 F.3d at 379. We review a determination that an alien is ineligible for withholding of removal under the substantial evidence standard, which means that we must deny the petition for review if the decision is supported by reasonable, substantial, and probative evidence. Kedjouti v. Holder, 571 F.3d 718, 720 (7th Cir.2009). We will not overturn the Board’s decision unless the record compels a contrary result. Id. at 720-21. Credibility findings are subject to the same highly deferential substantial evidence standard. Mitondo v. Mukasey, 523 F.3d 784, 788-89 (7th Cir.2008). The parameters for an IJ’s credibility determinations are set by 8 U.S.C. § 1158(b)(l)(B)(iii).
Substantial evidence in the record supports the Board’s determination that Patel did not show he qualifies for withholding of removal because his testimony was not credible. He testified that he joined the BJP in December 1992 and that his wife and child were killed because he refused to participate in a march on a mosque that same month. Later in his testimony, however, he stated that his wife died before he joined the BJP. A few sentences later, he changed course again, acknowledging he was a member of the BJP when his wife was killed. And the death certificates Patel provided indicated that his wife and child died in January 1992, months before his refusal to join the march on the mosque — the very refusal which supposedly led to the killings. The death certificates also indicate they were issued by the public health department rather than a police department, as he had testified.
In addition, as the Board observed, Patel gave inconsistent testimony concerning whether he went to see his wife’s body: he stated that he decided not to go when he learned BJP members were waiting to kill him, yet he also declared that he did go to see the body, at which point BJP members pushed him. The IJ also determined that if, as he testified, his wife and child were killed by the BJP and he feared for his own life, it was not credible that he would stay in India and maintain his BJP membership for several more years.
Because substantial evidence supports the decision that Patel’s testimony was not credible and, therefore, that he had not shown past persecution in India or a clear probability of future persecution there, we *644deny his petition for review of the Board’s denial of his request for withholding of removal.
III.
Because we lack jurisdiction to review the Board’s conclusion that Patel did not qualify for an exception to the asylum application deadline, we dismiss that part of the petition for review. And because substantial evidence supports the Board’s denial of his claim for withholding of removal, we deny the remainder of the petition. Petition for Review Dismissed in Part and Denied in PaRt.
. In his petition for review, Patel does not challenge the Board’s decision on his request for protection under the CAT. He has therefore waived judicial review of the issue. Raghunathan v. Holder, 604 F.3d 371, 381 (7th Cir.2010).
. Patel did argue to the Board that the IJ had "wrongly concluded” that his medical condition did not satisfy the extraordinary circumstance exception. But that was a different argument than the one he makes now and, moreover, was based on a factual or discretionary determination rather than a constitutional claim or question of law. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480288/ | PER CURIAM.
Chun Yan Chen, a citizen of China, petitions for review of an order of the Board of Immigration Appeals (BIA) denying her April 2009 motion to reopen. After careful review, we conclude that the BIA acted within its discretion. See Averianova v. Holder, 592 F.3d 931, 936-37 (8th Cir. 2010); Zhong Qin Zheng v. Mukasey, 523 F.3d 893, 895-96 (8th Cir.2008).
Accordingly, we deny the petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480289/ | MEMORANDUM **
In these consolidated petitions for review, Zhenjin Nan, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) orders denying her successive motions to reopen based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and de novo questions of law, including those concerning ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny both petitions for review.
We agree with the BIA’s conclusions that Nan failed to show she had been prejudiced by former counsels’ representation. See id. at 794 (9th Cir. 2005) (in order to state a valid claim of ineffective assistance of counsel, petitioner must show prejudice).
Nan’s remaining contentions are unpersuasive.
PETITIONS FOR REVIEW DENIED.
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/8480650/ | PER CURIAM:
Stephen H. Harris, appointed counsel for Tyrone Vincent Glover, has filed a motion to withdraw from further representation, supported by a brief prepared pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to "withdraw is GRANTED, and Glover’s conviction and sentence are AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480292/ | PER CURIAM:
This appeal is from the district court’s judgment entered pursuant to the jury’s verdict and from the district court’s denial of appellant’s post-judgment motion to alter, amend, or vacate the judgment. We have carefully considered the grounds for reversal appellant raises in her brief and conclude that they lack merit.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480294/ | SUMMARY ORDER
Petitioner Yuan Zee Huang filed an appeal from the Board of Immigration Appeals’s denial of his untimely motion to reopen and moved this Court to stay his order of removal pending the resolution of his appeal. Before submitting its brief on the merits, the Government moved to dismiss Huang’s appeal pursuant to the fugitive disentitlement doctrine. The Government’s motion is hereby held in abeyance pending full briefing on the merits. See Wu v. Holder, 617 F.3d 97 (2d Cir.2010). The panel of this court hearing the merits should be sent the Government’s motion for dismissal. We grant Huang’s stay of removal pending action by that panel. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480295/ | SUR PETITION FOR PANEL REHEARING
JOSEPH S. WEIS, Circuit Judge.
The petition for panel rehearing filed by Petitioner in the above-entitled matter, having been submitted to the judges who participated in the decision of this court, is hereby GRANTED. The opinion and judgment filed April 9, 2010 is hereby vacated. A revised not precedential opin*94ion in this appeal will be filed forthwith. As panel rehearing is granted, no action is taken on the petition for rehearing en banc filed May 28, 2010.
OPINION
PER CURIAM.
Elias Alfonso Juarez-Gonzalez, a citizen and native of Mexico, petitions this Court for review of a final removal order entered by the Board of Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petition for review.
I.
Juarez-Gonzalez entered the United States without permission in 1993 at the age of seventeen. In 1997, he became a lawful permanent resident. On January 3, 2003, the Superior Court of New Jersey, Hudson County, convicted Juarez-Gonzalez following his plea of guilty to one count of criminal restraint in the third degree in violation of N.J. Stat. Ann. § 2C:13-2, for which he was sentenced to three years of probation. In 2006, Juarez-Gonzalez departed the United States for a short time and, upon return, the Department of Homeland Security charged him as removable under 8 U.S.C. § 1182(a)(2)(A)(i)(I) for having been convicted of a crime involving moral turpitude. Before the Immigration Judge (“IJ”) Juarez-Gonzalez conceded his removability on the ground charged and applied for a waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h).1
The IJ determined that Juarez-Gonzalez’s conviction for criminal restraint constitutes a “violent or dangerous crime,” a point that Juarez-Gonzalez’s counsel did not dispute. A.R. at 48-50, 154-55. As a result of this finding, the IJ held that Juarez-Gonzalez could not qualify for a § 212(h) waiver unless he made a heightened showing of an “exceptional and extremely unusual hardship” to his citizen children, in accordance with 8 C.F.R. § 1212.7(d).2 The IJ held that Juarez-Gonzalez failed to show the requisite hardship based on the evidence presented.
Juarez-Gonzalez retained new counsel and appealed to the BIA. He listed three issues for review in his notice of appeal: (1) the IJ used an incorrect legal standard in determining whether Juarez-Gonzalez met the burden of proof for a waiver of inadmissibility; (2) the IJ failed to consider material evidence that supported a waiver, and gave improper weight to immaterial evidence, and (3) the IJ consid*95ered facts not in evidence, erred in assuming facts, and denied “a full and fair hearing.” A.R. at 34. In his brief to the BIA, Juarez-Gonzalez argued that the IJ erred (1) in finding that he committed a violent or dangerous crime without first examining New Jersey law regarding the elements of the offense, (2) in choosing to apply the exceptional and extremely unusual hardship standard rather than the lesser extreme hardship standard, and (3) in its discretionary analysis of the factors for a waiver set forth in Matter of Marin, 16 I & N Dec. 581 (BIA 1978).
The BIA dismissed the appeal, agreeing with the IJ that Juarez-Gonzalez does not merit a § 212(h) waiver. It observed that Juarez-Gonzalez’s brief did not address his claims that the IJ had failed to consider certain evidence and had denied a full and fair hearing, which had been listed as issues for review in the notice of appeal. The BIA held these issues waived and, alternatively, summarily dismissed them. Turning to the merits of the § 212(h) request, the BIA explained that, where an alien has been convicted of a violent or dangerous crime, he or she must show an exceptional and extremely unusual hardship under 8 C.F.R. § 1212.7(d) to qualify for a waiver. The BIA held that Juarez-Gonzalez committed a violent or dangerous crime. It noted that Juarez-Gonzalez’s counsel had conceded that point before the IJ, which the BIA viewed as a binding judicial admission and a waiver of the issue. Moreover, the BIA reviewed the statute of conviction and case law interpreting it, and it concluded on the merits that Juarez-Gonzalez’s crime, “at a minimum, qualifies as a dangerous crime.” A.R. at 3. It observed that, even if nonviolent, “criminal restraint must be imposed against the will of the victim and pose a danger to the victim.” Id. at 4. Finally, the BIA affirmed the IJ’s determination that Juarez-Gonzalez failed to show an exceptional and extremely unusual hardship. Juarez-Gonzalez timely filed this petition for review.
II.
We must first consider our jurisdiction over the petition for review. See Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005) (“We begin, as we always must when reviewing agency determinations, with a determination of whether we have subject matter jurisdiction to consider [petitionerj’s claims.”). As the Government correctly notes, we lack jurisdiction to review the discretionary decision to deny a waiver of inadmissibility under § 212(h). See 8 U.S.C. § 1252(a)(2)(B)®; MendezMoranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir.2003). However, we retain jurisdiction insofar as the petitioner seeks review of constitutional claims or questions of law. See 8 U.S.C. § 1252(a)(2)(D); Jarbough v. Att’y Gen., 483 F.3d 184, 188 (3d Cir.2007).
Juarez-Gonzalez raises two arguments in this Court. First, he contends that the BIA should have applied a categorical analysis to determine whether his conviction for criminal restraint is a crime involving moral turpitude, which Juarez-Gonzalez seems to view a predicate finding to a determination of whether the crime is violent or dangerous under § 1212.7(d). As we understand this first argument, Juarez-Gonzalez is asking this Court to review both the determination that his offense constitutes a crime involving moral turpitude, and the determination that his offense is a violent or dangerous crime. Second, Juarez-Gonzalez contends that he was denied due process because his prior counsel allegedly provided ineffective assistance by conceding two critical issues before the IJ: (1) that the offense was a crime involving moral turpitude, thereby *96rendering Juarez-Gonzalez removable as charged, and (2) that the offense is a violent or dangerous crime, thereby subjecting him to the heightened exceptional and extremely unusual hardship standard for obtaining a § 212(h) waiver.3
We are satisfied that Juarez-Gonzalez raises legal and constitutional claims that fall within the scope of our jurisdiction. The Government, for its part, does not seem to dispute that there is jurisdiction under § 1252(a)(2)(D). It argues, however, that the petition for review should be dismissed because Juarez-Gonzalez failed to exhaust administrative remedies in accordance with 8 U.S.C. § 1252(d)(1), and/or because he waived review before the IJ. Respondent’s Br. at 11-14. Juarez-Gonzalez responds that the exhaustion requirement is satisfied because the BIA, sua sponte, raised the issue of counsel’s concession that the crime is violent or dangerous, and it reached the merits on that question by holding that the crime, at a minimum, is dangerous.
Because “issue exhaustion as required by § 1252(d)(1) is a jurisdictional rule,” Hoxha v. Holder, 559 F.3d 157, 159 n. 3 (3d Cir.2009), we address that question before proceeding further. Under § 1252(d)(1), “[a] court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right[.]” We have held that “a petitioner is deemed to have exhausted all administrative remedies, and thereby preserves the right of judicial review, if he or she raises all issues before the BIA.” Lin v. Att’y Gen., 543 F.3d 114, 120-121 (3d Cir.2008) (citations and quotation marks omitted). “We do not, however, apply this principle in a draconian fashion,” id. at 121, and “so long as ... petitioner makes some effort, however insufficient, to place the Board on notice of a straightforward issue being raised on appeal, a petitioner is deemed to have exhausted her administrative remedies.” Id. (quotation marks omitted); see also Hoxha, 559 F.3d at 160 (noting that our case law “instruct[s] that our focus [in addressing exhaustion] must be on the nature of the notice provided to the BIA by both the Notice of Appeal and any brief filed with the BIA”).
In Lin, we held that “the BIA’s consideration of an issue is sufficient to provide us with jurisdiction over that issue” even if the petitioner failed to raise the issue at any time before the BIA. 543 F.3d at 123 n. 7. We noted that “it is within the [BIA]’s discretion to determine when to dismiss summarily an appeal for lack of specificity and when the BIA is sufficiently apprised of the applicable issues to entertain the appeal.” Id. at 124. If the BIA should elect to address an issue on the merits sua sponte (as it did in Lin), we generally will deem the exhaustion requirement satisfied. Id. at 126.
Applying these principles here, we conclude that Juarez-Gonzalez satisfied the exhaustion requirement on the question whether his crime is violent or dangerous under § 1212.7(d).4 Juarez-Gonza*97lez argued in his brief to the BIA that the IJ had erred in holding that the offense is violent or dangerous because such a determination can be made only after a review of the elements of the offense. While the legal theory behind the argument presented to the BIA differs somewhat from the theory that he now propounds in this Court, Juarez-Gonzalez made clear that he wished to challenge the violent or dangerous determination. The BIA, moreover, addressed that determination on the merits and held that the crime, at a minimum, is dangerous. Although it noted that counsel had conceded that finding before the IJ, the BIA chose to address the issue, and its discussion of the merits reflects that it was “sufficiently apprised of the applicable issue[ ] to entertain the appeal.” Lin, 543 F.3d at 124. Exhaustion, therefore, having been satisfied, we turn to the merits of whether the BIA erred in holding that the offense is dangerous.5
III.
Where, as here, the BIA agrees with the IJ’s analysis and adds analysis of its own, we review the decisions of both the BIA and the IJ. See Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir.2009). We review factual determinations under the substantial evidence standard, accepting those determinations as conclusive unless “ ‘any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Id. at 251 (quoting 8 U.S.C. § 1252(b)(4)(B)). Our review of legal determinations is de novo, “subject to established principles of deference.” Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir.2004) (citing Chevron v. Nat. Res. Def. Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). We afford deference to the agency’s interpretation of its regulations, Zegrean v. Att’y Gen., 602 F.3d 273, 275 (3d Cir.2010), while “we owe no deference to [its] interpretation of a state criminal statute.” Partyka v. Att’y Gen., 417 F.3d 408, 411 (3d Cir.2005).
Juarez-Gonzalez challenges the BIA’s analysis of the statute under which he was convicted, suggesting that New *98Jersey law leaves open the possibility that his offense is not a dangerous crime, and therefore not within the purview of § 1212.7(d). See Petitioner’s Br. at 19. We discern no reversible error.6
The New Jersey statute outlawing criminal restraint provides in relevant part that “[a] person commits a crime of the third degree if he knowingly ... [Restrains another unlawfully in circumstances exposing the other to risk of serious bodily injury[.]” N.J. Stat. Ann. § 2C:12-2(a). New Jersey courts recognize that “criminal restraint functions as a lesser included offense of kidnapping,” State v. Savage, 172 N.J. 374, 799 A.2d 477, 492 (2002), and the offense differs from, and is more serious than, false imprisonment in that criminal restraint in the third-degree “requires that the restraint be in circumstances exposing the other to risk of serious bodily injury.” Id. at 494 (quotation marks omitted).
Juarez-Gonzalez has not shown that it is inconsistent with § 1212.7(d) to define his offense as dangerous. Under § 2C:12-2(a), Juarez-Gonzalez pled guilty to a crime in which he acted against the will of his victim through restraint and exposed the victim to a risk of serious bodily injury. Even assuming, as the BIA did, that the crime is non-violent, but cf. United States v. Parson, 955 F.2d 858, 873 (3d Cir.1992) (holding that violation of Delaware’s reckless endangerment statute constitutes “crime of violence” for purposes of U.S.S.G. § 4B1.1), the danger inherent in the offense, through the risk of serious bodily injury to the victim, is apparent. Juarez-Gonzalez offers no plausible interpretation to the contrary.
The Attorney General adopted § 1212.7(d) to aid in the consideration of waiver applications, and in particular to guide the agency’s exercise of discretion in deciding whether to consent to an inadmissible alien’s request for admission. See Samuels v. Chertoff, 550 F.3d 252, 257 (2d Cir.2008) (explaining that “in promulgating Section 1212.7(d), the Attorney General exercised the authority given to him by Congress to set the standards that will guide the exercise of discretion that follows after the alien shows ‘extreme hardship’ ”); Mejia v. Gonzales, 499 F.3d 991, 996 (9th Cir.2007) (noting that Attorney General “promulgated [the] regulation to guide IJs in the way they exercise their relatively unfettered grant of discretion after the statutory requirements are met”).7 As such, § 1212.7(d) distinguishes aliens who commit “violent or dangerous crimes” and requires them to make a heightened showing of an exceptional and extremely unusual hardship. As one court has observed, “[t]he heightened standard is rationally related to the national immigration policy of not admitting aliens who could be a danger *99to society.” Mejia, 499 F.3d at 996. We cannot conclude here that BIA contravened this policy, or exceed its authority, in determining that Juarez-Gonzalez’s crime is a dangerous one. Consequently, it did not err in requiring him to show an exceptional and extremely unusual hardship as a prerequisite to a § 212(h) waiver.
IV.
For the foregoing reasons, we will deny the petition for review. This Court’s Order provisionally staying Juarez-Gonzalez’s removal is hereby vacated.
. Under INA § 212(h), the Attorney General may, as a matter of discretion, waive the inadmissibility of, among others, an alien convicted of a crime involving moral turpitude if "it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien[.]” 8 U.S.C. § 1182(h)(1)(B). Juarez-Gonzalez has two United States citizen minor children. He does not reside with the children or their mothers, but he has established that he provides some financial support to each child.
. 8 C.F.R. § 1212.7(d) provides in relevant part:
The Attorney General, in general, will not favorably exercise discretion ... to consent to an application ... for .. . admission to the United States ... with respect to immigrant aliens who are inadmissible under [8 U.S.C. § 1182(a)(2) ] in cases involving violent or dangerous crimes, except in extraordinary circumstances, such as ... cases in which an alien clearly demonstrates that the denial of the application for ... admission as an immigrant would result in exceptional and extremely unusual hardship.
8 C.F.R. § 1212.7(d); see also 8 C.F.R. § 212.7(d) (setting forth same provision).
. “A claim of ineffective assistance of counsel in removal proceedings is cognizable under the Fifth Amendment — i.e., as a violation of that amendment's guarantee of due process.” Fadiga v. Att’y Gen., 488 F.3d 142, 155 (3d Cir.2007).
. We reject, however, Juarez-Gonzalez's argument that he satisfied the exhaustion requirement with regard to the IJ's finding that his offense is a crime involving moral turpitude. Juarez-Gonzalez conceded that he is removable for having committed a crime involving moral turpitude; the IJ held him removable on that basis; Juarez-Gonzalez did not challenge that determination in either his notice of appeal or his brief to the BIA; and the BIA did not address the issue sua sponte. Consequently, the issue cannot be deemed *97exhausted given the absence of any notice to the BIA. While Juarez-Gonzalez argues that he did, in fact, challenge the moral turpitude finding in his brief to the BIA, the record is clear that he did not. His argument in the brief was that the IJ's finding regarding the violent or dangerous nature of the offense was "arbitrary, subjective, and contrary to” BIA decisions, and that his offense had to qualify as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) (which defines as an aggravated felony "a crime of violence ... for which the term of imprisonment [is] at least one year”) in order to justify application of the exceptional and extremely unusual hardship standard. See A.R. at 13-14. Even a most generous reading of this argument does not suggest that it put the BIA on notice of a challenge to the finding that Juarez-Gonzalez is inadmissible and removable because he committed a crime involving moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I). Thus, we lack jurisdiction to review the moral turpitude determination, and we do not address that issue further. See Wu v. Att’y Gen., 571 F.3d 314, 317 (3d Cir.2009).
. Juarez-Gonzalez's second claim before this Court — that he was denied due process when counsel, allegedly ineffectively, conceded that the crime was violent or dangerous — is unex-hausted. Juarez-Gonzalez concedes that he did not raise that issue before the BIA, and the BIA did not address the issue sua sponte. In any event, the claim fails on the merits. As will be discussed in the text, the BIA did not err in holding that Juarez-Gonzalez's crime is dangerous. Consequently, a due process challenge based on counsel's failure to contest that issue is without merit, as Juarez-Gonzalez cannot show prejudice from counsel's action. See Fadiga, 488 F.3d at 155 (explaining that alien claiming denial of due process must show "(1) that he was prevented from reasonably presenting his case and (2) that substantial prejudice resulted”) (quotation marks omitted).
. To the extent that Juarez-Gonzalez seeks to fault the BIA for failing to apply a "categorical approach," his argument is rejected. Juarez-Gonzalez cites no authority for the proposition that the BIA must apply a categorical approach when analyzing whether a crime is violent or dangerous within the meaning of 8 C.F.R. § 1212.7(d). In any event, the BIA here looked to the language of the statute of conviction, and not to Juarez-Gonzalez's conduct, in asking whether his crime is violent or dangerous, and its analysis essentially comported with the type of categorical approach that Juarez-Gonzalez advocates. See Partyka, 417 F.3d at 411 (discussing categorical approach as applied to determine whether crime involves moral turpitude). While Juarez-Gonzalez speculates that the BIA might have conducted "a more thorough categorical analysis” had it not been for his counsel's concession before the IJ that the crime is violent or dangerous, Petitioner's Br. at 19, such speculation does not warrant a remand of this matter.
. We note that Juarez-Gonzalez raises no challenge in this Court to the validity of § 1212.7(d), and thus we do not address any such issue. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480296/ | OPINION
McKEE, Chief Judge.
Jeffrey J. Prosser has appealed an order of the district court affirming an order of the bankruptcy court that denied reconsideration of an earlier order converting Prosser’s Chapter 11 bankruptcy proceeding, 11 U.S.C. § 1101 et seq., to a proceeding under Chapter 7, 11 U.S.C. § 701 et seq.
Inasmuch as the background facts leading to the conversion are recited in the district court’s Memorandum Opinion, we find it unnecessary to recite those facts here. See In re Prosser, 2008 WL 2369187 (D.Vi. June 6, 2008). A bankruptcy court can convert a Chapter 11 proceeding to a proceeding under Chapter 7 for “cause.” 11 U.S.C. § 1112(b). Section 1112(b)(4)(A)-(P) provides a list of factors that constitute “cause” for such a conversion. Certain of Prosser’s creditors filed motions to convert Prosser’s Chapter 11 proceeding to one under Chapter 7, and the bankruptcy court granted the motions after finding cause as set forth under the Bankruptcy Code. Thereafter the bankruptcy court denied Prosser’s motion to reconsider that conversion and the district court subsequently affirmed the bankruptcy court’s decision. This appeal followed.
“The bankruptcy court has broad discretion in deciding whether to ... convert a *100chapter 11 case.” Loop Corp. v. United States Trustee, 379 F.3d 511, 515 (8th Cir.2004). After a full review of the record, the district court filed a Memorandum Opinion in which it carefully and fully explained its reasons for holding that the bankruptcy court did not abuse its discretion in converting Prosser’s Chapter 11 proceeding to a Chapter 7 proceedings. We can add little to the district court’s analysis and discussion. Accordingly, we will affirm substantially for the reasons set forth in the district court’s Memorandum Opinion without further elaboration. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480307/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nathaniel Burress appeals the district court’s orders granting his 18 U.S.C. § 3582(c)(2) (2006) motion for sentence reduction, and denying his amended § 3582(c)(2) motion. We have reviewed the record and find no reversible error. Accordingly, we deny Burress’s motions for appointment of counsel and affirm the district court’s orders. United States v. Burress, No. 5:04-cr-00031-FPS-JES-1 (N.D. W. Va. July 17, 2009); 2009 WL 5198296 (Dec. 22, 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/8480651/ | 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/8480297/ | OPINION
McKEE, Chief Judge.
Jeffrey J. Prosser and Innovative Communication Company, LLC, appeal from an order of the district court affirming the bankruptcy court’s determination that the Terms and Conditions of a Settlement Agreement entered into by Prosser, Emerging Communications, Inc., and Innovative Communication Co. (collectively the “Debtors”) and Rural Telephone Finance Cooperative, Greenlight Capital Qualified, L.P., Greenlight Capital, L.P., and Greenlight Capital Offshore, Ltd. (collectively the “Creditors”) is not an execu-tory contract that could be assumed by Prosser and Innovative Communication under the provisions of 11 U.S.C. § 365.
Inasmuch as the background to the execution of the Settlement Agreement is recited in the district court’s Memorandum and Opinion, we find it unnecessary to repeat it here. See In re Innovative Communication Company, LLC; In re Jeffrey J. Prosser, 2008 WL 2275397 (D.Virgin Islands May 30, 2008). Moreover, in its Memorandum and Opinion, the district court has carefully and fully explained its reasons for affirming the bankruptcy court’s holding that the Terms and Conditions of the Settlement Agreement do not constitute an executory contract that could be assumed by Prosser and Innovative *101Communication pursuant to 11 U.S.C. § 365. We can add little to the district court’s thoughtful analysis and discussion.
Accordingly, we will affirm substantially for the reasons set forth in the district court’s Memorandum and Opinion without further elaboration. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480298/ | OPINION
McKEE, Chief Circuit Judge.
Greenlight Capital Qualified, L.P., Greenlight Capital, L.P., and Greenlight Capital Offshore, Ltd. (collectively “Green-light”) appeal an order of the district court affirming the order of the bankruptcy court denying Greenlight’s objection to a proof of claim filed by Banco Popular de Puerto Rico (“BPPR”).1
Inasmuch as the district court recited the factual background to this dispute in its Memorandum Opinion, we find it unnecessary to repeat that background here. See In re Prosser, 2008 WL 3979476 (D.Vi. Aug.22, 2008). The gist of Greenlight’s argument here is that, pursuant to V.I. CODE ANN. Title 9, § 39(c),2 stock in the Virgin Islands Community Bank (“VICB”) owned by Jeffrey Prosser, the debtor and a director of the VICB, was non-transfer-rable and therefore could not be held as collateral for BPPR’s loan to Prosser. We disagree. As the district court noted, Section 39(c) speaks only to the qualification and regulation of bank directors. Id. at *102*3. Thus, the district court correctly held that “[n]othing in that section prevents the shareholder from using the stock as collateral to secure a loan.” Id. at *2.
Accordingly, we will affirm substantially for the reasons set forth in the district court’s Memorandum Opinion without further elaboration.
. “An order allowing or disallowing a claim is a final, appealable order." Orsini Santos v. Mender, 349 B.R. 762, 768 (1st Cir.BAP2006) (citing In re Perry, 391 F.3d 282, 285 (1st Cir.2004)).
. V.I. CODE ANN. Title 9, § 39(c) provides: "At least one-third of the total number of directors shall be bona fide residents of the United States Virgin Islands, and all shall be at least 21 years of age, and shall hold shares of the bank, subscribed in their name, of a par value of not less than $1,000 which shares shall be deposited in the bank while the said directors discharge their offices.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480299/ | OPINION
CHAGARES, Circuit Judge.
Simon and Miriam Fishman appeal the District Court’s orders establishing and enlarging a constructive trust in favor of State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Insurance Company (collectively, “State Farm”) against the Fishmans’ marital residence. The Fishmans also appeal the District Court’s decision to grant an equity interest in the Fishmans’ marital residence. For the reasons set forth below, this Court will vacate the District Court’s orders and remand for further proceedings.
I.
Because we write solely for the benefit of the parties, we recite only the essential facts. State Farm brought a suit against Simon Fishman and several co-defendants alleging a scheme to defraud State Farm by submitting false medical reports, bills, and other documents to State Farm in an attempt to obtain payment for medical treatment purportedly provided to individuals insured by State Farm or to individuals who claimed to have been injured by individuals insured by State Farm. On February 16, 2006, the jury returned a verdict against Simon Fishman, finding him liable to State Farm for, inter alia, common law fraud and statutory insurance fraud. Miriam Fishman, Simon Fishman’s spouse, was not a defendant in the underlying action. The District Court entered judgment against Simon Fishman on April 4, 2006, awarding State Farm compensatory damages in the amount of $331,046 and punitive damages in the amount of $1,915,200. The judgment also awarded State Farm $304,000 in punitive damages against Midtown Medical Center, Inc. and entitled State Farm to recover the sum from Simon Fishman. The District Court *127awarded State Farm attorneys’ fees and costs totaling $650,118.78.
On April 28, 2006, State Farm commenced collection proceedings against Simon Fishman by writ of execution. Simon Fishman filed a claim for exemption on May 26, 2006, asserting, inter alia, an exemption for the Fishmans’ marital home, “owned jointly with non-judgment debtor spouse, Miriam Fishman, as tenants by the entireties.” Joint Appendix (“JA”) 123. For reasons that are unclear from the record, the District Court did not rule on the exemption. On November 5, 2007, State Farm moved to strike Simon Fish-man’s claim for exemption.
On September 9, 2008, the District Court held a hearing on Simon Fishman’s claim for exemption and State Farm’s motion to strike. At the hearing, State Farm moved into evidence ten checks written by Simon Fishman to National City Mortgage Company between August 2002 and May 2003 totaling $17,983.85. The checks, mortgage payments on the marital residence, were drawn on a Fleet Bank account in the names of Alexander Fishman,1 Simon Fishman, and Miriam Fishman. On September 10, 2008, the District Court issued an order establishing a $17,983.85 constructive trust against the Fishmans’ marital residence in favor of State Farm.
On September 24, 2008, Simon Fishman moved for reconsideration. On October 8, 2008, State Farm filed a response in opposition to Simon Fishman’s motion for reconsideration requesting that the District Court increase the constructive trust based on an additional mortgage check and grant State Farm the appreciated value of the constructive trust by awarding them a nineteen percent equity interest in the Fishmans’ marital residence.
On October 14, 2008, the District Court denied Simon Fishman’s motion for reconsideration, increased the constructive trust to $43,822.64, and granted State Farm a nineteen percent equity interest in the Fishmans’ marital residence. Simon Fish-man and Miriam Fishman, as an interested third-party, appealed to this Court on October 30, 2008 from both the September 10, 2008 order establishing the constructive trust and the October 14, 2008 order enlarging the trust and granting State Farm an equity interest in the marital residence.
While the appeal was pending, on May 11, 2009, the District Court granted a motion by State Farm to increase the constructive trust to $93,838.79 and the equity interest to 40.79 percent. The Fishmans filed an Amended Notice of Appeal on May 20, 2009. We consolidated both appeals.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.2 *128State Farm argues that we lack jurisdiction over this appeal because the District Court’s orders are not final. This Court has “jurisdiction of appeals from all final decisions of the district courts of the United States.” 28 U.S.C. § 1291. A final decision “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Grider v. Keystone Health Plan Cent., Inc., 580 F.3d 119, 131 (3d Cir.2009) (citations omitted). We give the § 1291 finality requirement a “ ‘practical rather than a technical construction.’ ” Penn. Family Inst., Inc. v. Black, 489 F.3d 156, 162 (3d Cir.2007) (quoting Caver v. City of Trenton, 420 F.3d 243, 261 (3d Cir.2005)). We have noted that post-judgment orders are usually final decisions within the meaning of § 1291 as long as the district court has completely disposed of the matter. Ohntr-up v. Firearms Ctr., Inc., 802 F.2d 676, 678 (3d Cir.1986). Review of post-judgment orders is less likely to run afoul of our policy against interfering with trial court proceedings and, if such orders were not considered final, “an aggrieved party would for all practical purposes be denied meaningful review” of the trial court’s post-judgment orders. Id.
The challenged orders followed entry of judgment in favor of State Farm and settled Simon Fishman’s claim for exemption and State Farm’s requests for a constructive trust against the marital residence and an equity interest in the marital residence. We hold that they are final decisions under § 1291. Were we to conclude otherwise, there is little prospect that further proceedings would occur to make them final and there would be no opportunity to review the District Court’s decisions. Accordingly, we exercise jurisdiction over the District Court’s orders.
We normally review a district court’s factual findings for clear error and its legal conclusions de novo. See Gordon v. Lewistown Hosp., 423 F.3d 184, 201 (3d Cir.2005). However, the District Court’s orders provided no factual findings nor did they include any legal conclusions. Our standard of review when considering a grant of equitable remedies is whether the district court properly exercised its discretion. Voest-Alpine Trading USA Corp. v. Vantage Steel Corp., 919 F.2d 206, 211 (3d Cir.1990).
III.
The Fishmans argue that the District Court erred when it established a constructive trust against the Fishmans’ marital residence because State Farm failed to meet its burden of proof and because State Farm’s claim was time-barred. The Fishmans also assert that the District Court’s order granting State Farm an equity interest in the marital residence is not supported by law.
A.
As the Supreme Court of Pennsylvania has explained, “[a] constructive trust arises where a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.” Balazick v. Ireton, 518 Pa. 127, 541 A.2d 1130, 1133 (1988) (quoting Pierro v. Pierro, 438 Pa. 119, 264 A.2d 692, 696 (1970)). “One who seeks to construct a trust bears a heavy burden of proof; the evidence must be clear, direct, precise and convincing. [Ujnless the evi*129dence of the existence of [a constructive trust] is of the highest probative value, equity should not act to convert an absolute ownership into an estate of lesser quality.” Roberson v. Davis, 397 Pa.Super. 292, 580 A.2d 39, 41 (1990) (alterations in original) (citations omitted). Pennsylvania law is clear that “if only one spouse is a debtor, entireties property is immune from process, petition, levy, execution or sale.” Klebach v. Mellon Bank, N.A., 388 Pa.Super. 203, 565 A.2d 448, 450 (1989) (emphasis in original). However, when the tenancy by the entireties was created in fraud of creditors, the property is not protected from execution. Patterson v. Hopkins, 247 Pa.Super. 163, 371 A.2d 1378, 1382-83 (1977).
State Farm argued before the District Court that the Fishmans paid them mortgage using funds directly obtained from the fraudulent scheme. In the alternative, State Farm argued that Simon Fishman was the sole wage-earner in the family, thus the mortgage payments are attributable solely to the judgment debtor and are not protected by the entireties property. The Fishmans disputed both of these allegations, and asserted that they made the mortgage payments using joint savings from a used automobile dealership that Simon Fishman owned and the Fishmans operated together until 1995.
The District Court did not resolve these disputed facts in holding that State Farm was entitled to a constructive trust. Rule 52(a)(3) of the Federal Rules of Civil Procedure 3 does not require the District Court to articulate its factual findings. Nonetheless, “where, as here, the district court is presented with conflicting positions of substance as to how it should exercise its discretion ... it is a salutary practice to give the litigants, either orally or in writing, at least a minimum articulation of the reasons for its decision.” Interface Corp. v. City of Phila., 438 F.2d 401, 404 (3d Cir.1971); see also Stewart v. Gates, 987 F.2d 1450, 1454 (9th Cir.1993) (“[Ajbsent some indication of how the district court’s discretion was exercised, this court has no way of knowing whether that discretion was abused.” (citations omitted)); Browning v. Kramer, 931 F.2d 340, 345-46 (5th Cir.1991) (vacating and remanding award of attorney fees, despite Fed.R.Civ.P. 52(a), because district court failed to identify the specific conduct that “unreasonably and vexatiously multiplied the proceedings” under 28 U.S.C. § 1927). State Farm presented two potential bases for a constructive trust to the District Court, and we cannot be sure which theory the District Court relied upon in granting the equitable relief. Further, given that this is a case of disputed facts, a minimal amount of evidentiary analysis by the District Court is necessary to enable us to resolve adequately claims of error. The District Court’s lack of findings precludes meaningful appellate review of the challenged orders. Accordingly, we will vacate the District Court’s September 10 and October 14, 2008 orders and remand to give the District Court an opportunity to remedy the deficiency.4
*130B.
In light of our decision to remand for further proceedings, we will address the Fishmans’ remaining argument to provide some guidance to the District Court. The Fishmans argue that the District Court erred in awarding State Farm an equity interest in the Fishmans’ marital residence. Instead, they contend, even if State Farm met its burden of demonstrating that the Fishmans’ mortgage payments were fraudulent transfers, the proper remedy would be an equitable lien against the property. In response, State Farm argues that because Simon Fishman mingled ill-gotten assets into the equity of his marital residence after he was aware of State Farm’s action against him, it is entitled to a constructive trust and a proportionate share of the real estate. For support, State Farm cites to Provencher v. Berman, 699 F.2d 568, 569-71 (1st Cir.1983), in which the Court of Appeals for the First Circuit held that where a conscious wrongdoer used commingled funds to buy property, the beneficiary of the resulting constructive trust may take title to a proportionate share of the entire property, subject to the mortgage. State Farm also points to § 210(2) of the Restatement (First) of Restitution, “Effect Of Acquisition Of Other Property With Mingled Funds,” which states that “[i]f the wrongdoer knew that he was acting wrongfully, the other is entitled at his option to a share of the property in such proportion as his money bore to the whole amount of the fund.” Restatement (First) of Restitution § 210(2) (1937).
Neither Provencher nor § 210(2) of the Restatement applies to this case; State Farm does not allege that the Fishmans purchased the marital residence with commingled funds. It is undisputed that the Fishmans purchased their residence on November 27, 1992, approximately six years before State Farm alleged the conspiracy took place. The court in Pro-vencher awarded the beneficiary of the constructive trust an undivided share of the property equivalent to the percentage of the purchase price (less mortgage loans) paid with its funds. 699 F.2d at 570. That formula does not fit the facts of this case — the percentage of the marital residence purchase price, less mortgage loans, paid with State Farm’s funds is zero. Rather, State Farm’s allegation is that the Fishmans used the commingled funds to pay off their mortgage loan, not acquire the property.
According to the Restatement (First) of Restitution,
When a person wrongfully uses property of another in discharging an obligation of the wrongdoer to a third person or a lien held by a third person upon his property, the other is entitled to be sub-rogated to the rights which the third person had before the obligation or lien was discharged.
Restatement (First) of Restitution § 207 (1937); see also id. § 162.5 The Restate*131ment clearly distinguishes between a wrongdoer who uses ill-gotten funds to acquire the property (thus entitling the trustee to a constructive trust) and one who uses such funds to discharge a mortgage. Id. § 162 cmt. a (“Just as the establishment and enforcement of a constructive trust is a method of giving the plaintiff restitution where the defendant has acquired property from the plaintiff or through the disposition of the plaintiffs property, so where property of the plaintiff is used in discharging an obligation or hen he obtains restitution through subrogation.”); cf. In re Linsey, 296 B.R. 582 (Bankr.D.Mass.2003) (imposing an equitable lien in favor of creditor where debtor used commingled funds to improve, rather than acquire, property); Restatement (First) of Restitution § 206 (1937) (“Where a person wrongfully uses property of another in making improvements upon property already owned by wrongdoer, the other is entitled to an equitable lien but is not entitled to enforce a constructive trust”). An illustration in the Restatement reinforces the point that a constructive trust is not the appropriate equitable remedy in this case.
A owns Blackacre which is subject to a mortgage for $10,000 to B. A steals $10,000 from C and pays the money to B in discharge of the mortgage. C is sub-rogated to the rights which B had as mortgagee.
Id. § 207 cmt. b, illus. 1 (1937). In the case of a secured claim, such as a mortgage, the person entitled to be subrogated to the original creditor obtains an equitable lien. Id. § 162 cmt. e (1937); see also Gladowski, 31 A.2d at 720 (imposing equitable lien on property in favor of plaintiffs with right of subrogation to judgment lien); Williams v. Benzing, 53 Pa. D. & C. 559, 562 (Pa.Com.Pl.1945) (granting equitable lien to secure repayment of moneys used to discharge liens or encumbrances against property).
Accordingly, on remand, the District Court must determine whether State Farm has demonstrated sufficient facts to enable the District Court to exercise its discretion to impose an equitable remedy. If it decides State Farm has met its burden, it should be guided by its understanding of the principles of restitution adopted by Pennsylvania courts in fashioning a remedy.
IV.
For the reasons above, we will vacate the District Court’s orders, and remand for further proceedings consistent with this opinion.
. Alexander Fishman is one of Simon Fish-man’s brothers. State Farm alleges that certain checks signed by Alexander Fishman were fraudulently signed after Alexander Fishman was deceased. The Fishmans deny this allegation and dispute the claim that Alexander Fishman is deceased.
. The District Court lacked jurisdiction to enter its May 11, 2009 order. The Fishmans filed a Notice of Appeal on October 30, 2008 appealing the District Court's September 10 and October 14, 2008 orders. "[Tlhe timely filing of a notice of appeal is an event of jurisdictional significance, immediately conferring jurisdiction on a Court of Appeals and divesting a district court of its control over those aspects of the case involved in the appeal.” Venen v. Sweet, 758 F.2d 117, 120 (3d Cir.1985) (citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982)). The District Court lacked jurisdiction to increase the size of the constructive trust and equity interest while an appeal of the District Court’s decision to establish the constructive trust and equity interest was pending before this Court. Accord*128ingly, we will vacate the District Court's May 11, 2009 order. On remand, the District Court may, of course, consider whether any equitable remedy to which State Farm may be entitled should take account of these additional amounts.
. "The court is not required to state findings or conclusions when ruling on a motion under Rule 12 or 56 or, unless these rules provide otherwise, on any other motion.” Fed. R.Civ.P. 52(a)(3).
. The Fishmans also argue that State Farm is time-barred from challenging the purported fraudulent transfers under the Pennsylvania Uniform Fraudulent Transfer Act (PUFTA). See 12 Pa. Const. Stat. Ann. § 5109(1) (requiring a cause of action with respect to a fraudulent transfer to be brought "within four years after the transfer was made” or "within one year after the transfer or obligation was or could reasonably have been discovered by the claimant”). State Farm argues that the PUF-TA time limitations do not apply to its claim, and in the alternative, that the PUFTA limita*130tions period was tolled by Simon Fishman’s efforts to fraudulently conceal the mortgage payments.
The Fishmans raised this issue before the District Court, (see Mem. of Law of Def. Simon Fishman and Third-Party Miriam Fish-man in Opp’n to Pl.’s Mot. to Strike Simon Fishman's Claim for Exemption 7). However, the District Court failed to address it. We decline to consider this claim in the first instance. Rather, on remand, the District Court should address the Fishmans’ claim that State Farm is time-barred from challenging the alleged fraudulent transfers.
. Pennsylvania has cited with approval the principles in the Restatement of Restitution regarding subrogation, see, e.g., Assoc. Hosp. Serv. of Phila. v. Pustilnik, 497 Pa. 221, 439 A.2d 1149, 1151 (1981); Gladowski v. Felczak, 346 Pa. 660, 31 A.2d 718, 720 (1943). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480300/ | OPINION
HILLMAN, District Judge.
M & M Stone Co. (“M & M”) appeals from an order of the District Court dismissing its claims for constitutional and state law violations against the Commonwealth of Pennsylvania, Department of Environmental Protection (“DEP”), the Telford Borough Authority (“TBA”), Spotts Stevens & McCoy, Inc., and the Delaware River Basin Commission (“DRBC”).1 The District Court dismissed *159the claims based on the principles of claim preclusion and issue preclusion.2 For the reasons that follow, we will affirm.
I. Background
M & M owns and operated a quarry in Telford, Pennsylvania for the production of construction and architectural stone. The DEP regulates quarry operations in Pennsylvania, the DRBC regulates ground water withdrawals in the Delaware River’s watershed, and the TBA supplies drinking water to residences, businesses, and neighboring communities through several deep ground wells encircling the quarry. Spotts Stevens & McCoy, Inc. is an engineering and consulting firm retained by the TBA to monitor its wells and determine the cause of their dewatering.
The events leading to M & M’s suit against these entities, and several of their employees individually and in their official capacities, allegedly began in October 1999, when M & M applied for, and was granted, a permit to deepen its quarry by 50 feet. From that point on, as detailed in M & M’s complaint and the District Court’s two Opinions, M & M claims that all the defendants conspired to blame M & M’s quarry-deepening activities for the de-watering of TBA Well No. 4, when it was actually caused by the TBA’s other wells, and to force M & M to pay for an arsenic-free public water supply.
On November 15, 2005, the DEP issued two compliance orders, which required M & M to cease all mining activities and to restore and replace the water supplies affected by its operations. A month later, M & M filed its first formal challenge to the defendants’ alleged scheme with an appeal to the Commonwealth of Pennsylvania Environmental Hearing Board (“EHB”).3 During the pendency of that appeal, on November 14, 2007, M & M filed its case in the District Court seeking injunctive relief, as well as damages for constitutional and state law violations.
The substance and timeline of these parallel proceedings are important to the analysis of whether the District Court properly applied the doctrines of claim and issue preclusion. On January 31, 2008, after a twelve-day long hearing, the EHB found that the DEP orders were “factually supported, reasonable and in accordance with the law in all respects.” (A. 723.) The EHB opinion contained 165 findings of fact and spanned over 50 pages. The opinions of ten experts were considered. On February 29, 2008, M & M filed a petition for review before the Commonwealth Court of Pennsylvania.
On September 29, 2008, 2008 WL 4467176,the District Court granted in part and denied in part the defendants’ first motion to dismiss M & M’s complaint.4 *160Shortly thereafter, the Commonwealth Court issued its 21-page opinion agreeing with the EHB “in all respects” and affirming its decision.
From December 2008 through July 2009, the Commonwealth Court denied M & M’s motion for reconsideration, M & M filed an allocatur petition with the Pennsylvania Supreme Court, and M & M filed an application to supplement its allocatur petition with newly discovered evidence. On September 80, 2009, the District Court dismissed M & M’s amended complaint in its entirety, finding that M & M’s constitutional violations claims were barred on the basis of claim and issue preclusion, and declining to exercise supplemental jurisdiction over M & M’s remaining state law negligence claim. M & M filed its notice of appeal on October 8, 2009.
On December 8, 2009, the Pennsylvania Supreme Court denied M & M’s petitions without prejudice to M & M’s right to raise after-discovered evidence claims before the EHB. A few weeks later, M & M filed with the EHB a petition to reopen the record and reconsider its opinion. On March 26, 2010, the EHB denied M & M’s request to reconsider and open the record. In a 15-page opinion, the EHB explained that not only did M & M fail to properly move to reopen, even if it did, the “new evidence” did not warrant reconsideration or reopening.5
In its appeal before us, M & M challenges the District Court’s dismissal of its claims on the basis of claim and issue preclusion.6 M & M argues that res judi-cata principles do not preclude its claims because it could not have brought its claims for constitutional violations before the EHB, and the EHB could not have provided it the relief it could obtain in federal court. It also argues that preclusion principles do not apply because its constitutional and conspiracy claims (or, the “issues” relating to its constitutional and conspiracy claims) were not actually addressed in the state court proceedings. M & M further argues that the District Court improperly considered the substance of the EHB and state court proceedings while resolving the motions to dismiss.
II. Discussion
The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331 over M & M’s constitutional violations claims, and supplemental jurisdiction over M & M’s claims pursuant to 28 U.S.C. § 1367(a). We have jurisdiction under 28 U.S.C. § 1291. The general rule is that we exercise plenary review of a decision to apply issue preclusion, or collateral estop-pel, and claim preclusion. See Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d 244, 248 (3d Cir.2006) (issue preclusion); Rider v. Pennsylvania, 850 F.2d 982, 988-95 (3d Cir.1988) (claim preclusion).
The principles of issue preclusion and claim preclusion are similar. See Migra v. *161Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984) (explaining that the doctrine of res judicata “is often analyzed ... to consist of two preclusion concepts: ‘issue preclusion’ and ‘claim preclusion’ ”). Although these doctrines both govern the preclusive effects of a former adjudication, they are applied in different ways. “Issue preclusion refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided.” Id. “Claim preclusion refers to the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit.” Id.
The District Court dismissed several of M & M’s claims on the basis of claim preclusion, but also found that all of M & M’s claims were barred on the basis of issue preclusion. Because the finding that the doctrine of issue preclusion barred M & M from asserting its claims is disposi-tive of all of M & M’s claims, we will first focus our review on that issue.
The purpose of precluding “parties from contesting matters that they have had a full and fan* opportunity to litigate protects then* adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions.” Montana v. United States, 440 U.S. 147, 153-54, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). With regard to issues first presented to a state tribunal, the federal courts have consistently accorded preclu-sive effect to issues decided by state courts, and, thus “res judicata and collateral estoppel not only reduce unnecessary litigation and foster reliance on adjudication, but also promote the comity between state and federal courts that has been recognized as a bulwark of the federal system.” Allen v. McCurry, 449 U.S. 90, 95-96, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); see also 28 U.S.C. § 1738 (providing that the rulings of state courts “shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such state ... from which they are taken”).
[1] In determining the preclusive effect of a state court judgment, we apply the rendering state’s law of issue preclusion. See Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 381, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985). Thus, whether M & M’s suit is precluded turns on the law of Pennsylvania. Under Pennsylvania law, the following conditions must exist before issue preclusion may be invoked:
(1) the issue decided in the prior adjudication was identical with the one presented in the later action;
(2) there was a final judgment on the merits;
(3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication; and
(4) the party against whom it is asserted has had a full and fan* opportunity to litigate the issue in question in a prior action.
Shuder v. McDonald’s Corp., 859 F.2d 266, 273 (3d Cir.1988).
[2] In a thorough analysis, the District Court found that each element was satisfied. M &’ M contends, however, that the issues before the EHB and state court are different from the issues raised in its case here, and that it did not have a full and fair opportunity to litigate those issues in the state proceedings.7 M & M also argues that the District Court should have never considered issue preclusion at the motion to dismiss stage. We do not agree.
*162With respect to when a court may consider the preclusive effect of a state court judgment, although issue preclusion is an affirmative defense, it may be raised in a motion to dismiss under Federal Civil Procedure Rule 12(b)(6). Connelly Found. v. Sch. Dist. of Haverford Twp., 461 F.2d 495, 496 (3d Cir.1972). In reviewing a Rule 12(b)(6) motion, it is well-established that a court should “consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim.” Lum v. Bank of Am., 361 F.3d 217, 221 n. 3 (3d Cir.2004). In the context of deciding a Rule 12(b)(6) motion that raises issue preclusion concerns, and where a plaintiff has not included the existence or substance of the prior adjudications in the body of, or attachments to, its complaint, it is axiomatic that a court must still consider the prior adjudication in order to determine whether issue preclusion bars that plaintiffs claims. Thus, we have held that a prior judicial opinion constitutes a public record of which a court may take judicial notice. Id. We have also held, however, that a court may do so on a motion to dismiss only to establish the existence of the opinion, and not for the truth of the facts asserted in the opinion. Id. “ ‘[A] court that examines a transcript of a prior proceeding to find facts converts a motion to dismiss into a motion for summary judgment.’ ” Id. (citation omitted).
Despite M & M’s contention that the District Court should have converted the motions to dismiss into ones for summary judgment and allow it additional time to respond, the District Court did not err by not doing so. At the outset of its review of the motions, the District Court took proper judicial notice of the existence of the state administrative and state court opinions. In those opinions, the EHB and Commonwealth Court found that the DEP “cessation orders were reasonable and in accordance with the law in all respects.” (A. 723, 861.) The EHB also found that the DEP had “no less restrictive means to restore and replace the lost water supplies,” and that the DEP “had no choice but to cease the operation.” (A. 716.) Without considering the underlying factual analyses by the EHB and Commonwealth Court for their truth, and instead simply acknowledging the EHB and Commonwealth Court’s conclusions, the District Court properly began the issue preclusion analysis. To credit M & M’s argument and disallow a court from recognizing the existence of other judicial opinions would thwart a defendant’s right to raise issue preclusion in a motion to dismiss, and it would obviate the entire purpose of the doctrine.
With the EHB and Commonwealth Court’s findings as a guide, the District Court considered the four elements necessary to satisfy the issue preclusion test. It is undisputable that M & M was a party in the prior adjudication, which resulted in a final judgment on the merits. It is also clear that through the administrative and state court proceedings, M & M was provided with the requisite due process to *163satisfy the “full and fair opportunity to litigate” requirement. Thus, the District Court properly concluded that three of the four elements had been met.
As for the final prong of the issue preclusion test — whether the issues previously decided are identical to the issues presented in the subsequent action — although M & M contends that its constitutional claims pleaded here present different issues from those raised in the state proceedings, a comparison of the EHB’s and Commonwealth Court’s conclusions with M & M’s claims shows the identity of the issues. In order to prevail on its first count for a substantive due process violation arising from a municipal land use decision, M & M must establish that (1) it has a property interest protected by due process, and (2) the government’s deprivation of that property interest “shocks the conscience.” United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 399-400 (3d Cir.2003). The EHB and Commonwealth Court both found that the DEP “cessation orders were reasonable and in accordance with the law in all respects.” 8 Because the DEP’s conduct has been found to be reasonable, the issue concerning whether the DEP’s conduct “shocks the conscience” already has been determined. Indeed, the DEP’s actions cannot be both reasonable and “shock the conscience” at the same time. Accordingly, the District Court properly barred this claim.
To prove its second count for an equal protection violation under a “class of one” theory, M & M must prove that (1) the defendants treated it differently from others similarly situated, (2) the defendants did so intentionally, and (3) there was no rational basis for the difference in treatment. Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir.2006). Again, because the DEP’s conduct was already found to be reasonable, the issue concerning the rationality of the DEP’s orders has already been determined.9 The District Court properly barred this claim.
With regard to its claim for a violation of procedural due process, M & M’s third count, M & M must prove (1) a deprivation of an individual interest encompassed by the Fourteenth Amendment’s protection of life, liberty, or property, and (2) that the procedures available did not provide due process of law. Id. at 233-34. Even if M & M could show that it was deprived of a property interest, the prior proceedings demonstrate that it received “notice and opportunity for hearing appropriate to the nature of the case,” and that the opportunity to be heard was “at a meaningful time.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 547, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Indeed, the extensive procedural history of M & M’s challenges to the DEP cessation orders, which wound their way through the administrative courts and up to the Pennsylvania Supreme Court, shows that the due process it was provided well exceeds the minimum requirements. Thus, we will also affirm the District Court on the dismissal of this claim.
Finally, to prove its fourth count for First Amendment violations, M & M *164must show that its constitutionally protected conduct was a “substantial” or “motivating factor” in the defendants’ actions. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (citing Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 270-71 n. 21, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)). If M & M carries this burden, the burden shifts to the defendants to show “by a preponderance of the evidence that [they] would have reached the same decision ... even in the absence of the protected conduct.” Id. The District Court found that even if M & M sufficiently engaged in First Amendment activity, and that activity was a substantial or motivating factor in the defendants’ decision to retaliate, the EHB and Commonwealth Court opinions show that the DEP had “no less restrictive means to restore and replace the lost water supplies” and that the DEP “had no choice but to cease the operation.” Accordingly, the District Court concluded that the issue of whether the defendants would have reached the same decision already had been decided by the prior adjudication. We agree, and this claim was properly dismissed.10
III. Conclusion
The facts and allegations concerning the shut-down of M & M’s quarry because of the dewatering of neighboring wells are complex and voluminous. Nevertheless, having had a full and fair opportunity to litigate those issues, M & M is barred from asking another court to weigh in on the substance of its claims because all the issues presented by M & M here have already been decided by the prior adjudications. This is precisely the purpose of the issue preclusion doctrine.
Accordingly, we will affirm the order of the District Court.11
. M & M also filed suit against several employees of these defendants in their individual and official capacities, including DEP employees Roger Hornberger, Scott Roberts, Michael D. Hill, Keith A. Laslow, and Martin Sokolow; TBA General Manager Mark D. Fournier; Spotts Stevens & McCoy, Inc. employee Richard M. Schloesser; and DRBC employee William J. Muszynski. Mr. Horn-berger, a retired employee of the DEP, passed away during the pendency of this appeal, and Raydelle Berger, Mr. Hornberger’s executrix. *159has been substituted as a party pursuant to Fed. R.App. P. 43(a)(1).
.We consider the principles of issue preclusion and collateral estoppel to be synonymous. While the parties use the terms interchangeably, for the sake of clarity and consistency, we use only the former term. We consider the separate concept of claim preclusion to be a subset of the broader concept of res judicata. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984).
. The DEP issued a third compliance order on March 9, 2006, which was later incorporated into M & M's appeal.
. With regard to the claims that were not dismissed, the District Court declined to abstain under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and found M & M's claims not precluded because the defendants did not show that M & M could have raised its constitutional violations claims before the EHB. In the decision on appeal here, the District Court reconsidered its rejection of the Younger doctrine, finding that it improperly assigned the burden on the third *160prong of the test to the defendants. The District Court also determined that M & M could have, and should have, raised its constitutional violations claims before the EHB. In its appeal, M & M focuses on this issue, and argues to the contrary. This point, however, is only relevant to claim preclusion. As discussed below, because we find that the District Court properly determined that all of M & M's claims are barred on the basis of issue preclusion, we will not address this argument.
. Because briefing had already concluded, we were provided with the March 26, 2010 EHB opinion pursuant to Fed. R.App. P. 28(j).
. M & M does not appeal the District Court's decision to decline supplemental jurisdiction over its state law claim.
. M & M’s argument that the application of issue preclusion violates its Seventh Amend*162ment right to a jury trial is without merit. See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 335-36, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (explaining that because "the party against whom estoppel is asserted has litigated questions of fact, and has had the facts determined against him in an earlier proceeding,” "there is no further factfinding function for the jury to perform, since the common factual issues have been resolved in the previous action”) (citing Ex parte Peterson, 253 U.S. 300, 310, 40 S.Ct. 543, 64 L.Ed. 919 (1920) ("No one is entitled in a civil case to trial by jury, unless and except so far as there are issues of fact to be determined.”)).
. The EHB specifically addressed M & M's unconstitutional taking claim, finding that M & M "presented no evidence in support of such a claim.” (A. 722.)
. The Commonwealth Court considered M & M’s argument that the DEP orders were "an excessive exercise of regulatory authority." (A. 858.) The Commonwealth Court found, "After a thorough review of the evidence supporting the Board's findings and the law upon which their decision was based, we cannot agree with M & M that the Board committed errors of law in not finding that the Department’s actions were unreasonable or outside its authority.” (A. 861.)
. To the extent that M & M’s complaint contains a claim that the defendants conspired to violate its constitutional rights, that claim fails. Without any underlying constitutional violations, M & M cannot maintain a conspiracy claim. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (explaining that for a conspiracy claim brought pursuant to § 1983, a plaintiff must show that two or more conspirators reached an agreement to deprive him or her of a constitutional right ''under color of law”).
. Several defendants point out, and we independently recognize, that M & M's complaint could have been dismissed on other legal theories. Guthrie v. Lady Jane Collieries, Inc., 722 F.2d 1141, 1145 (3d Cir.1983) ("An appellate court may affirm a result reached by the district court on different reasons, as long as the record supports the judgment.”). Because the application of the issue preclusion doctrine was appropriate, we do not need to discuss those alternative bases for dismissal. Furthermore, because we find that the doctrine bars all of M & M's claims, we do not need to consider whether some of its claims are also barred by claim preclusion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480302/ | OPINION
ROTH, Circuit Judge:
Jeoffrey Burtch, Bankruptcy Trustee of the Mushroom Transportation Company, Inc. (MTC), and plaintiff in this adversarial proceeding, appeals the Bankruptcy Court’s judgment in favor of defendant Pincus, Verlin, Hahn & Reich (PVHR) and the District Court’s affirmance. Both courts found PVHR not hable for losses that occurred when its shareholder, Jonathan Ganz, embezzled from the bankruptcy estate while serving as MTC’s counsel. We will affirm.
I. Background
Our last opinion in this case contains a full recitation of the facts, In re Mushroom Transportation Co., Inc., 382 F.3d 325 (3d Cir.2004), so a brief recitation will suffice here.
On June 24, 1985, MTC and related entities filed petitions for reorganization under Chapter 11 of the Bankruptcy Code. MTC initially retained its assets as debtor-in-possession, but within six months, MTC ceased operation and began liquidating assets. During the bankruptcy proceeding, MTC remained under the leadership of Michael C. Arnold and Robert B. Cutaiar, both long-time MTC executives. The Bankruptcy Court appointed Arnold as “Special Liquidation Consultant” and approved Arnold’s compensation of $300 per day from the bankruptcy estate. Arnold retained Jonathan Ganz and Ganz’s firm, PVHR, as MTC’s counsel in the bankruptcy proceeding.1
MTC deposited the liquidation proceeds at Continental Bank, one of MTC’s largest creditors. The Bankruptcy Court approved repayment of Continental Bank’s seamed claim from funds on deposit, leaving a balance of approximately $1 million in MTC’s escrow account at Continental Bank. At Ganz’s request, in July and August 1987, Continental Bank conveyed the escrow balance to the bankruptcy estate by (1) issuing a $200,000 treasurer’s check payable to Ganz as debtor’s counsel and (2) depositing $766,624,49 into a new MTC escrow account opened by Ganz at Continental Bank. Although PVHR maintained *207its own escrow accounts for client funds, Ganz opened a separate account because he intended to convert the estate’s funds for his personal use and wanted to evade discovery by PVHR. Ganz began embezzling from the estate in 1987.
In 1990, the Bankruptcy Court — still unaware of Ganz’s embezzlement — converted the proceeding from Chapter 11 to Chapter 7 and appointed Arnold as Trustee of the bankruptcy estate. In February 1992, the United States Trustee advised Arnold that Ganz had embezzled from other bankruptcy estates. Arnold examined MTC’s accounts and discovered that, indeed, funds were missing from the estate. In 1992, Arnold brought this adversarial proceeding against PVHR to recover funds stolen by Ganz, who later pleaded guilty to embezzlement.
In 1994, while this adversarial proceeding was pending, Arnold also began embezzling funds from the MTC bankruptcy estate. Arnold resigned as bankruptcy trustee in 1995 and pleaded guilty to a felony in 1996. Jeoffrey Burtch succeeded Arnold as Trustee and continued this mul-ti-count action against PVHR. Count I asserts a claim for turnover of estate property under 11 U.S.C. §§ 542 and 543. Counts II through VII assert various common law claims.
The principal issue in this case is whether PVHR, which ordinarily would be liable for embezzlement committed by its shareholder, should prevail on affirmative defenses. PVHR contends the turnover claim is barred by laches and the common law claims are barred by statutes of limitations. This adversarial proceeding was filed October 5,1992, more than four years after the embezzlement began. The applicable dates of accrual are not in dispute, so absent tolling, the Trustee’s claims would be barred by laches or the statutes of limitations. The Trustee argues the limitations period should be tolled because Arnold and Cutaiar exercised reasonable diligence in ascertaining the existence of injury to the bankruptcy estate.
The Bankruptcy Court, ruling on the affirmative defenses, granted summary judgment in favor of PVHR because MTC failed to exercise reasonable diligence in uncovering Ganz’s embezzlement. The District Court affirmed. On appeal, we partially reversed the grant of summary judgment. There was “no question that Mushroom, acting through its representatives Arnold and Cutaiar, had a fiduciary duty to protect and maximize the estate’s assets.” 382 F.3d at 339. But whether it was reasonable for Arnold and Cutaiar to relax their “vigilance in overseeing the execution of the duties [they] delegated to Ganz” was a question of fact. Id. at 341. We explained that “where the wrongdoing underlying [a] cause [ ] of action has been perpetrated by a fiduciary to the detriment of its principal, this fact militates strongly against summary judgment on the issue of whether the principal (here Mushroom) exercised reasonable diligence in failing to discover the fiduciary’s malfeasance within the applicable statutes of limitations.... ‘To require a principal to engage in aggressive oversight of its fiduciary’s conduct is to deny the very essence of a fiduciary relationship,’ ” Id. at 341^2 (quoting Rubin Quinn Moss Heaney & Patterson, P.C. v. Kennel, 832 F.Supp. 922, 935 (E.D.Pa.1993)). We remanded for determination of when the Trustee’s duty to investigate arose and issued the following guidance: “We should stress that we do not hold here that the existence of a fiduciary, lawyer-client relationship between Ganz and Mushroom, and Ganz’s abuse of that relationship, alone preclude judgment as a matter of law in PVHR’s and its shareholders’ favor.” Id. at 342-43.
*208On remand, the Bankruptcy Court held a five-day trial and issued more than 100 pages of factual findings and legal conclusions. The Bankruptcy Court held that PVHR, as counsel to the bankruptcy estate, breached its fiduciary duties and contractual obligations owed to the Trustee. However, the Bankruptcy Court found PVHR was not liable for turnover because the “funds misappropriated by Ganz were never channeled through the law firm escrow account, but were transferred directly by Continental Bank to bank accounts titled in Ganz’s name alone.” 366 B.R. 414, 439 (Bankr.E.D.Pa.2007). The Bankruptcy Court enforced the statute of limitations on the Trustee’s common law claims because Arnold and Cutaiar failed to exercise reasonable diligence as fiduciaries representing MTC’s interests. The Bankruptcy Court held that Arnold, in particular, acted unreasonably:
Although Arnold testified that he communicated with Ganz “numerous times” about the Mushroom assets, beginning in 1987, 1 NT. at 57, such testimony to the extent it implies that Arnold was attentive to or interested in the protection of Mushroom assets for the benefit of its creditors is not credible. There is no written communication after February 1988. Arnold was working full-time for a New Jersey firm and later for a Pittsburgh company beginning in 1987. He never sought any bank account or interest statements, or other corroborative or relevant tax information. Although Ganz provided a written reply to Arnold’s accounting request in February 1987, he did not do so with a similar request in February 1988, and Arnold did not press him for information, Arnold expressed no concern about the assets after Ganz joined another firm. And even after he became trustee in February 1991, and was not represented by the Pincus firm, and after he received information from the United States trustee about his,duty to obtain control of estate property, he never sought any information or attempted to collect the assets from Ganz or Pincus. He attempted no recovery after the substantive consolidation order was entered. And, as trustee, he also embezzled estate property.
366 B.R. at 434. The District Court affirmed. The Trustee appeals both findings and requests reassignment to a different bankruptcy judge on remand.
II. Discussion
The District Court had jurisdiction pursuant to 28 U.S.C. § 158 over the appeal from the Bankruptcy Court, which had jurisdiction pursuant to 28 U.S.C. § 157(b). We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 158(d). The District Court’s determinations are subject to plenary review. In re Prof'l Ins. Mgmt., 285 F.3d 268, 282-83 (3d Cir.2002). The Bankruptcy Court’s factual determinations are reviewed for clear error and its legal determinations are reviewed de novo. Id.
The Trustee argues (1) the Trustee is entitled to turnover of assets embezzled by Ganz and (2) the statute of limitations should be tolled because Arnold and Cuta-iar acted reasonably in relying on advice of counsel. Both arguments challenge factual findings without any demonstration of how those findings were clearly erroneous. We have reviewed the record and find no error of fact or law.
The turnover claim is without merit because the Bankruptcy Court found the funds embezzled by Ganz were not channeled through PVHR’s accounts. There was no property for PVHR to turnover because Ganz converted the funds from *209Continental Bank to a separate account under his control and not the firm’s.
The evidence adduced at trial supports the Bankruptcy Court’s finding that Arnold completely abdicated his responsibility to preserve and protect the bankruptcy estate’s assets, partly because of his friendly relationship with Ganz. After learning that Ganz had embezzled from the bankruptcy estate, Arnold then proceeded to pilfer the bankruptcy estate as well. It is clear that Arnold did not act with reasonable diligence to ascertain the existence of an injury, so the Trustee is not entitled to tolling of the limitations period.
III. Conclusion
For the reasons stated above, we will affirm the judgments of the Bankruptcy Court and District Court. The request for reassignment is moot.
. The Bankruptcy Court explained the association between Arnold and Ganz:
Both Arnold and Ganz graduated from Vil-lanova Law School. While at law school Arnold met Ganz and even took a bankruptcy class with him. It was Arnold who arranged for Mushroom to engage the Pincus law firm, and Pincus was chosen because of Arnold's association with Ganz and because of the firm’s bankruptcy expertise Arnold viewed his relationship with Ganz as more than simply attorney-client. However, he had no social relationship with Ganz, at least prior to engaging his firm to represent Mushroom in its bankruptcy case. After the engagement, Arnold and Ganz became friendlier, sharing season baseball tickets.
366 B.R. 414, 418 (Bankr.E.D.Pa.2007). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480303/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Elvis David Lewis, a native and citizen of Grenada, seeks review of an order of the Board of Immigration Appeals (Board) denying his untimely motion to reopen. We have reviewed the administrative record and Lewis’s contentions and find that we lack jurisdiction to review his claims. See 8 U.S.C. §§ 1252(a)(2)(C), (D) (2006); 8 U.S.C. § 1252(d)(1) (2006); Mosere v. Mukasey, 552 F.3d 397, 400-01 (4th Cir.), cert. denied, - U.S. -, 130 S.Ct. 137, 175 L.Ed.2d 90 (2009). Accordingly, we dismiss the petition for review for the reasons stated by the Board. See In re: Lewis, (B.I.A. Sept. 30, 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.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480305/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Veenu Mehta appeals the district court’s order granting summary judgment in favor of Appellee in this employment discrimination action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Mehta v. Potter, No. 1:07-cv-01257-AJT-TRJ, 2009 WL 1598403 (E.D. Va. filed June 4, 2009 & entered June 5, 2009). We deny Mehta’s motion to file a formal brief. 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/8480381/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher A. Odom appeals the district court’s order accepting the recommendation of the magistrate judge and 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. Odom v. Ryan, No. 3:09-cv-03271-PMD, 2010 WL 427741 (D.S.C. Feb. 4, 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/8480308/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Godefroy Youssa Tcheufa, a native and citizen of Cameroon, petitions for review of an order of the Board of Immigration Appeals (Board) denying his motion to reopen as untimely. We have reviewed the administrative record and Tcheufa’s claims and find no abuse of discretion in the denial of relief on Tcheufa’s motion. See 8 C.F.R. § 1003.2(c)(2) (2010). We accordingly deny the petition for review for the reasons stated by the Board. See In re: Tcheufa (B.I.A. Dec. 8, 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.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480312/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Hinton appeals the district court’s order granting the Defendants’ motion to dismiss his amended complaint alleging claims under the Fair Credit Reporting Act. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Hinton v. Equifax Info. Servs. LLC, No. 1:09-cv-01061-AJT-*303TRJ (E.D. Va. filed Dec. 18, 2009; entered Dec. 22, 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/8480313/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Greg Givens seeks to appeal various district court orders in his 42 U.S.C. § 1983 (2006) case. 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, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The orders Givens seeks to appeal are neither final orders nor appealable interlocutory or collateral orders. Accordingly, we dismiss the appeals for lack of jurisdiction. We deny Givens’ motion to strike and 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/8480314/ | PER CURIAM: *
In this mass tort multidistrict litigation (MDL) proceeding, thousands of plaintiffs alleged personal injuries resulting from the use of Vioxx, a drug manufactured by defendant Merck and Company, Inc. (Merck). Many of the litigants have arrived at an opt-in Master Settlement Agreement (MSA) to resolve claims for those plaintiffs who meet certain criteria. Glenn L. Dier and his fellow plaintiffs-appellants (the Dier plaintiffs) have not opted into the MSA. The district court issued a series of pre-trial orders, including pre-trial order 28 (PTO 28), which required that non-settling plaintiffs each produce a report from a doctor linking the alleged injury to use of Vioxx. The district court issued a show cause order for the Dier plaintiffs’ failure to comply with PTO 28 and later dismissed the Dier plaintiffs’ cases on that basis. We AFFIRM.
I.FACTUAL AND PROCEDURAL BACKGROUND
In September 2004, Merck withdrew Vioxx from the market when data revealed an increased risk of cardiovascular thrombotic events associated with the drug. See In re Vioxx Prods. Liab. Litig., 401 F.Supp.2d 565, 571 (E.D.La.2005). Litigation soon followed and thousands of claims were filed around the country. Id.
1. Multidistrict Litigation
In February 2005, the Judicial Panel on Multidistrict Litigation ordered that the Vioxx litigation be “centralized, designated as an MDL, and assigned to” Judge Eldon Fallon. Id. Judge Fallon then directed the parties to address whether a class of personal injury plaintiffs could be certified under Rule 23. In November 2006, he denied certification of a nationwide class because the plaintiffs’ claims raised choice-of-law hurdles and numerous individualized questions of fact. In re Vioxx Prods. Liab. Litig., 239 F.R.D. 450, 458-59, 461 (E.D.La.2006).
2. The Master Settlement Agreement
Settlement negotiations resulted in the MSA, which the parties presented to the district court on November 9, 2007. The MSA established threshold criteria for plaintiffs’ eligibility to opt in. Section 1.2.8 of the MSA imposed the requirement that any plaintiffs’ counsel enrolling clients in the MSA must affirm that she had recommended to 100% of her clients that they accept the terms of the MSA and must attempt to withdraw from representing clients who refused to accept the MSA terms. The MSA also designated Judge Fallon as its chief adminisrtator.
3. The Pre-tyial Orders
On November 9, 2007 the district court entered several pre-trial orders with respect to the claims of those plaintiffs who could not or chose not to participate in the MSA. PTO 28 1 required non-settling plain*394tiffs to notify their healthcare providers that they must preserve evidence pertaining to the plaintiffs’ use of Vioxx. Plaintiffs were also required to produce pharmacy records and medical authorizations, answers to interrogatories, and a Rule 26(a)(2) report from a medical expert attesting that the plaintiff sustained an injury caused by Vioxx and that the injury occurred within a specified time period. Failure to comply could result in dismissal of the plaintiffs’ claims with prejudice.2
Pre-trial order 30 (PTO 30) imposed a stay of discovery so that plaintiffs could consider the MSA, with exceptions for discovery activities required by PTO 28 and previously scheduled de bene esse depositions. Pre-trial order 31 (PTO 31) enforced the terms of Section 1.2.8 of the MSA by requiring all counsel of record for plaintiffs to register all claims in which they had an interest and sign a “Registration Affidavit,” in which they had to attest to whether they agreed to the terms of the MSA and would recommend that their clients enroll in the MSA.
4. Dier Plaintiffs’ Dismissal
The Dier plaintiffs brought their Vioxx suits against Merck in state and federal courts in New York. Each case was then transferred to the MDL. The Dier plaintiffs have not opted into the MSA.
Shortly after the MSA was announced and the pre-trial orders were entered, a group of plaintiffs (the Oldfather plaintiffs) filed a motion in the district court requesting modification or suspension of PTO 28 on the basis that its requirements were premature and unfairly burdensome. The district court rejected the Oldfather plaintiffs’ arguments, but nonetheless extended the deadlines for PTO 28 “to ensure that all Plaintiffs have a fair opportunity to comply with this provision of PTO 28.” In re Vioxx Prods. Liab. Litig., 557 F.Supp.2d 741, 745 (E.D.La.2008).
One month after the Oldfather ruling, in June 2008, another group of plaintiffs (the Agard plaintiffs)3 filed a motion making substantially the same arguments as the Oldfather plaintiffs in opposition to PTO 28. They requested another extension and sought to eliminate the expert report requirement of PTO 28. The Agard plaintiffs also argued that Judge Fallon’s roles as MSA chief administrator and as coordinating judge of the MDL proceeding created an incurable conflict of interest, requiring Judge Fallon to resign as MSA administrator. They further asserted that the MSA should be vacated or declared void because it had not been subject to the requirements of Rule 23. In December 2008, the district court denied the Agard motion in its entirety.
In October 2008, the district court entered an order (the Conference Order) instructing eligible but non-settling plaintiffs to appear at one of three conferences to be held in different locations nationally. The stated purpose of the order was “to ensure that plaintiffs who are eligible for the Vioxx settlement program but who have not enrolled in the program ... have all necessary information available to them so that they can make informed choices.” *395The order directed counsel and plaintiffs themselves to appear in person at one of the conferences, although it expressly allowed plaintiffs to avoid this requirement for reasons of “physical or economic hardship.” Many of the Dier plaintiffs claimed hardship and were excused from attendance. The Dier plaintiffs also moved the district court to vacate the order, contending that the only conceivable purpose of the conferences was for the court to engage in “advocacy for the settlement in an environment that is necessarily going to be viewed as coercive by the individual plaintiffs.” The district court denied the motion.
In November 2008, Merck moved for an Order to Show Cause as to sixty-one plaintiffs (including the Dier plaintiffs) for “failure to provide a case-specific expert report as required by ... PTO 28.” In December 2008, the district court issued an Order to Show Cause. The Dier plaintiffs filed responses, ai’guing that they were in substantial compliance with PTO 28 and that New York law only required general causation proof. In April 2009, the district court dismissed the Dier plaintiffs’ complaints with prejudice for failure to comply with PTO 28.
II. DISCUSSION
A. Standing to Challenge the MSA
The Dier plaintiffs first challenge the validity of the MSA. Standing, however, is a prerequisite to this court’s exercise of jurisdiction. Doe v. Tangipahoa Parish Sch. Bd., 494 F.3d 494, 496 n. 1 (5th Cir.2007) (en banc). This court has recognized that, in the context of class settlements, non-settling parties generally have no standing to challenge the settlement. Transam. Refining Coup. v. Dravo Corp., 952 F.2d 898, 900 (5th Cir.1992); see also Agretti v. ANR Freight Sys., 982 F.2d 242, 246 (7th Cir.1992) (“ ‘[N]on-settling defendants in a multiple defendant litigation context have no standing to object to the fairness or adequacy of the settlement by other defendants.’ ”) (quoting 2 Herbert B. Newberg, Newberg on Class Actions § 11.54 (2d ed.1985)). The rationale behind this general rule is that settlement will not affect any substantive legal rights of non-settling parties. Transam. Refining Corp., 952 F.2d at 900.
An exception to the general rule may apply if the settlement agreement strips non-settling parties of rights to contribution or indemnity, see id., or in some other manner results in “plain legal prejudice” to a non-settling party. Agretti, 982 F.2d at 246-47; see also Bass v. Phoenix Seadrill/78, Ltd., 749 F.2d 1154, 1160 n. 10 (5th Cir.1985) (stating that the court may consider “an attempt by a non-party to the settlement to void portions of the agreement that purport to affect the rights of non-settlors”). But “[m]ere allegations of injury in fact or tactical disadvantage as a result of a settlement simply do not rise to the level of plain legal prejudice.” Agretti, 982 F.2d at 247.
Because the MSA was structured as an “opt-in” private settlement rather than an “opt-out” agreement, the Dier plaintiffs cannot show that they have suffered the type of legal prejudice that would afford them standing to challenge the MSA. The Dier plaintiffs therefore lack standing to challenge the MSA.
B. Judge Fallon’s Decision to Not Re-cuse
The Dier plaintiffs contend that Judge Fallon cannot serve as both presiding judge in the Vioxx MDL and chief administrator of the MSA without presenting the appearance of partiality. They assert that Judge Fallon’s dual roles “clearly permit[] an inference” that he *396encouraged participation in the MSA. Therefore, they argue, Judge Fallon must either recuse himself from the case or resign as chief administrator of the MSA.
Addressing the Dier plaintiffs’ contentions in its order of December 10, 2008, the district court declined to recuse on the basis that:
The facts of the instant case do not warrant recusal. As Chief Administrator of the [MSA], the Court serves in an administrative capacity that has no substantive effect on its management of the MDL proceedings. See In re Vioxx Prods. Liab. Litig., MDL No. 1657, 2008 WL 4091672, at *2 (E.D.La. Aug.27, 2008) (explaining that the Court “has consistently exercised its inherent authority over the MDL proceedings in coordination with its express authority under the terms of the Settlement Agreement to ensure that the settlement proceedings move forward in a uniform and efficient mannei'”). The Court played no role in drafting the private settlement agreement reached by the parties; the Court has taken no position as to what types of claims should or should not have been included in the settlement; and, finally, the Court has consistently stated that it neither encourages nor discourages participation in the settlement.
“A motion to disqualify is committed to the sound discretion of the judge and her decision will only be reversed if there has been an abuse of that discretion.” In re Hipp, Inc., 5 F.3d 109, 116 (5th Cir.1993). The federal recusal statute provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455. “The very purpose of § 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.” Liljeberg v. Health Seros. Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) (citing S.Rep. No. 93-419, at 5 (1974) and H.R.Rep. No. 93-1453, at 5, 1974 U.S.C.C.A.N. 6351 (1974)). “Thus, it is critically important in a case of this kind to identify the facts that might reasonably cause an objective observer to question [the judge’s] impartiality.” Id. In applying § 455, the court employs an objective test, finding recusal warranted “if the reasonable man, were he to know all the circumstances, would harbor doubts about the judge’s impartiality.” IQ Prods. Co. v. Pennzoil Prods. Co., 305 F.3d 368, 378 (5th Cir.2002) (quotation omitted).
1. Encouraging Participation in Settlement
The Dier plaintiffs submit that the district court’s statement that it “has consistently stated that it neither encourages nor discourages participation in the settlement” takes “too myopic a view” of the court’s role as both chief administrator of the MSA and as presiding judge in the MDL litigation. They point to the Conference Order, which required all non-settling plaintiffs to appear at conferences “to ensure that plaintiffs who are eligible for the Vioxx settlement program but who have not enrolled in the program have all necessary information available to them so they can make informed choices,” and argue that this order permits the inference that the district court encouraged settlement. The Conference Order, however, did not inappropriately encourage settlement. It “is not unusual to require the parties as well as counsel to appear at settlement conferences.” Bilello v. Abbott Labs., 825 F.Supp. 475, 479 (E.D.N.Y.1993). For example, Federal Rule of Appellate Procedure 33 authorizes courts of appeals to “direct the attorneys — and, when appropriate, the parties — to participate in one or *397more conferences to address any matter that may aid in disposing of the proceedings, including ... discussing settlement. A judge or other person designated by the court may preside over the conference.” Fed. R.App. P. 33. Nothing about the settlement conferences would give a reasonable observer any doubt about Judge Fallon’s impartiality.
2. Appearance of Partiality
In support of their argument that the district court’s impartiality could reasonably be questioned, the Dier plaintiffs assert that at least one plaintiff lacked confidence in the district court’s impartiality as a result of its dual responsibilities. But because the test for impartiality is an objective one, see IQ Prods. Co., 305 F.3d at 378, an individual plaintiffs subjective beliefs are irrelevant to the analysis.
For the reasons articulated by Judge Fallon, his decision not to recuse falls well within the bounds of his discretionaiy authority.
C. Pre-Trial Order 28 Requiring Production of a Doctor’s Report
The Dier plaintiffs’ final argument is that it was an abuse of discretion for the district court to issue the case-specific expert disclosure requirement in PTO 28. They contend that Merck was aware of the nature of their alleged injuries and the injuries’ purported link to Vioxx. They further assert that even if issuance of PTO 28 was generally within the district court’s discretion, in instances where state law requires no expert opinion as part of the evidence to support the claim, imposing such a requirement is an abuse of discretion and contravenes the Erie doctrine. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-80, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
1. The Court and Merck were Already Apprised of Plaintiffs’ Injuries
A district court’s adoption of a Lone Pine order and decision to dismiss a case for failing to comply with a Lone Pine order are reviewed for abuse of discretion. Acuna, 200 F.3d at 340-41.
Relying on Acuna, the district court stated that “it is not too much to ask a plaintiff to provide some kind of evidence to support their claim that Vioxx caused them personal injury.” In re Vioxx Prods. Liab. Litig., 557 F.Supp.2d at 744. In Acuna, over 1,000 plaintiffs brought personal injury claims allegedly arising from uranium mining activities. The district court issued pre-discovery Lone Pine orders that required plaintiffs to provide expert affidavits specifying the injuries suffered by each plaintiff, the substances causing the injury, the dates and circumstances of exposure to the injurious materials, and the scientific and medical bases for the expert’s opinions. Acuna, 200 F.3d at 338. The district court ultimately dismissed plaintiffs’ claims for failure to comply with the Lone Pine orders. Id. at 340. On appeal, plaintiffs challenged the Lone Pine orders as imposing too high a burden at too early a stage in the litigation. Id. This court stated that “[i]n the federal courts, such orders are issued under the wide discretion afforded district judges over the management of discovery under Fed.R.CivP. 16.” Id. The court then held that the Lone Pine orders
essentially required that information which plaintiffs should have had before filing their claims pursuant to Fed. R.CivP. 11(b)(3). Each plaintiff should have had at least some information regarding the nature of his injuries, the circumstances under which he could have been exposed to harmful substances, and the basis for believing that the named defendants were responsible for his injuries.
*398Id. (citing Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 165 (5th Cir.1999)). Thus, the Acuna court concluded that the district court did not commit an abuse of discretion by dismissing plaintiffs’ claims for failure to comply with the Lone Pine order. Id. at 341.
The Dier plaintiffs contend that this case is distinguishable from Acuna because here the plaintiffs have alleged precise injuries and both the court and Merck are on notice of the nature of the injuries and the injuries’ relationship to Merck’s conduct. These grounds are insufficient, however, to warrant bypassing the clear holding in Acuna that it is within a court’s “discretion to take steps to manage the complex and potentially very burdensome discovery that the cases would require.” Id. at 340.
2. Requirement of Proof of Physical Injury for Emotional Distress Claims
The Dier plaintiffs also argue that PTO 28 was improper because expert testimony is not required for claims of negligent infliction of emotional distress under New York law.4 But the Dier plaintiffs all pleaded physical injuries, and none attempted to withdraw those physical injury claims. Thus, PTO 28 would apply regardless of whether the Dier plaintiffs might have had a viable negligent infliction of emotional distress claim along with their physical injury claims.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
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.
. PTO 28 is characterized as a Lone Pine order, named for Lore v. Lone Pine Corp., No. L-33606-85, 1986 WL 637507 (N.J.Super. Ct. Law Div. Nov. 18, 1986). "Lone Pine orders *394are designed to handle the complex issues and potential burdens on defendants and the court in mass tort litigation.” Acuna v. Brown & Root Inc., 200 F.3d 335, 340 (5th Cir.2000).
. Pre-trial Order 29 (PTO 29) is virtually identical to PTO 28, differing primarily because it applies to plaintiffs whose claims were transferred to the MDL after November 9, 2007 and therefore sets different deadlines.
. The Agard plaintiffs were also represented by the Law Office of Ronald R. Benjamin, counsel for the Dier plaintiffs. The Agard plaintiffs included some of the Dier plaintiffs.
. "[T]he substantive law of each plaintiff's home jurisdiction must be applied to his or her respective claims.” In re Vioxx Prods. Liab. Litig., 239 F.R.D. 450, 458 (E.D.La.2006). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480315/ | *455
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
PER CURIAM: *
This court’s judgment of November 13, 2009, holding that Alexis is ineligible for cancellation of removal due to his status as an aggravated felon, and relying on our controlling precedent in Carachuri-Rosendo v. Holder, 570 F.3d 263 (5th Cir.2009), has now been overruled by the Supreme Court in Carachuri-Rosendo v. Holder, 560 U.S. -, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010).
Our judgment was reversed and the case remanded. We therefore reverse and remand to the district court for reconsideration without the aggravated felony conviction of Alexis.
REVERSED and REMANDED.
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 5tii Cm R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480316/ | PER CURIAM: *
Julian Rodriguez-Alvarado appeals the 96-month sentence imposed in connection with his guilty-plea conviction for illegal reentry in violation of 8 U.S.C. § 1326. Rodriguez-Alvarado argues that his sentence is greater than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a)(2) and that he should have been sentenced below the guidelines range. He contends that his Texas robbery conviction was double counted and argues that his cultural ties to this country and his motive for reentry support a sentence below the guidelines range. Rodriguez-Alvarado cites Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and argues that this court should not accord his within-guidelines sentence a presumption of reasonableness because the illegal reentry guideline is not supported by empirical data.
We typically review sentences for reasonableness by engaging in a bifurcated review. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008). Rodriguez-Alvarado challenges only the substantive reasonableness of his sentence. We consider the “substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall, 552 U.S. at 51,128 S.Ct. 586.
Rodriguez-Alvarado acknowledges that his empirical data argument is foreclosed by this court’s precedent. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, — U.S. -, 130 S.Ct. 378, 175 L.Ed.2d 231 (2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, — U.S. -, 130 S.Ct. 192, 175 L.Ed.2d 120 (2009). Rodriguez-Alvarado similarly notes this court’s rejection of his fast-track disparity argument. See United States v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir.2008). Rodriguez-Alvarado raises these issues to preserve them for further review.
We have also previously rejected the argument that the double counting of a defendant’s criminal history necessarily renders a sentence unreasonable. See Duarte, 569 F.3d at 529-31. Rodriguez-Alvarado’s assertions regarding his personal history and characteristics and his motive for reentering the United States are insufficient to rebut the presumption of reasonableness. See Gomez-Herrera, 523 F.3d at 565-66. Rodriguez-Alvarado has not demonstrated that the district court’s imposition of a sentence at the top of the guidelines range was an abuse of discretion.
The judgment of the district court is AFFIRMED.
Pursuant to 5th Cut. 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/8480317/ | PER CURIAM: *
Norma Segovia, a native and citizen of Mexico, petitions this court for review of an order from the Board of Immigration Appeals (BIA) affirming the immigration judge’s (IJ) denial of her application for cancellation of removal. The IJ determined that Segovia had failed to show that her removal would result in exceptional and extremely unusual hardship to her family, as required for cancellation of removal. Segovia argues in this petition that the IJ cited to legal authority involving hardship factors that are not present in her situation.
We lack jurisdiction to consider the BIA’s discretionary determination that Segovia failed to demonstrate exceptional and unusual hardship. See 8 U.S.C. § 1252(a)(2)(B)©; Sung v. Keisler, 505 F.3d 372, 377 (5th Cir.2007); Rueda v. Ashcroft, 380 F.3d 831 (5th Cir.2004). The jurisdiction-stripping provision of § 1252 does not preclude review of constitutional claims and questions of law. § 1252(a)(2)(D); Sung, 505 F.3d at 377. Segovia did not make any arguments in her brief raising a colorable constitutional claim or a question of law that we would have jurisdiction to review. Because we lack jurisdiction to review the final order of removal, the petition for review is dismissed. See Alwan v. Ashcroft, 388 F.3d 507, 515 (5th Cir.2004).
DISMISSED.
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 5tii Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480319/ | PER CURIAM: *
Francisco Zavala-Flores appeals his 57 month sentence for being illegally present in the United States following deportation. He argues that the district court erred in enhancing his criminal history category pursuant to U.S.S.G. § 4Al.l(f) on the ground that three indecency with a child convictions in violation of Texas Penal Code § 21.11(a)(2)(A) were crimes of violence for which he received a single sentence. Zavala-Flores properly concedes that his argument is subject to review for plain error because he did not raise the issue at sentencing.
To establish plain error, Zavala-Flores must identify a forfeited error that is clear or obvious and that affects his substantial rights. See Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). Whether the convictions at issue are crimes of violence within the meaning of § 4Al.l(f) is an issue of first impression in this circuit. Thus, if error occurred, it was not clear or obvious and does not warrant relief on plain error review. See United States v. Ellis, 564 F.3d 370, 376-78 (5th Cir.), cert. denied, — U.S. -, 130 S.Ct. 371, 175 L.Ed.2d 124 (2009); Puckett, 129 S.Ct. at 1429.
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/8480320/ | ORDER
Gary Ellison, an inmate in Illinois, filed a pro se suit under 42 U.S.C. § 1983, alleging numerous constitutional and state-law claims against prison officials, guards, former attorneys, and a state-court judge. The district court dismissed some claims at screening, see 28 U.S.C. § 1915A, but determined that others could have merit and recruited counsel to assist Ellison in preparing an amended complaint. Before counsel finished investigating Ellison’s claims, however, Ellison filed an amended complaint pro se. At his counsel’s request, the district court dismissed this amended complaint “without prejudice” in October 2008 but simultaneously “terminated” the case. Afterwards, Ellison (without the assistance of counsel) filed three motions to reconsider, each time arguing that he did not authorize counsel to seek the voluntary dismissal. The district court summarily denied each of these motions, and Ellison appealed the court’s order denying his last two motions. We affirm the district court’s judgment.
Ellison’s original complaint assembled a morass of unrelated claims alleging injustices dating back to 2002. After dismissing many of these claims at screening, the court identified a number of deficiencies that plagued Ellison’s surviving complaint. The court listed the areas that required clarification or amendment and gave Ellison’s newly appointed counsel 60 days to investigate and file an amended complaint if potentially meritorious claims existed. Counsel began his investigation but did not file anything during that period. Ellison himself, however, filed an amended complaint, which, in essence, was the same as his original, defective complaint, minus the names of the parties dismissed at screening. The court notified counsel about the pro se amended complaint.
One month later Ellison’s attorney moved to dismiss the amended complaint but asked for leave to file a revised complaint within 90 days. Counsel noted that he had discussed the case with his client, but that he needed more time to finish investigating Ellison’s claims. In a minute order entered on October 31, 2008, the district court stated: “Plaintiffs complaint is dismissed without prejudice. Civil case terminated.”
Nothing else happened until Ellison filed a motion two months after the dismissal, asking to proceed pro se and complaining that his attorney was unresponsive and had not diligently pursued his claims. The court did not rule on that motion immediately. Then, in late January, while that motion was pending, Ellison filed a “Motion for Leave to File a Motion of Reconsideration of Dismissal,” explaining that he did not learn of the case’s dismissal until the court clerk informed him of it on January 16, 2009. Accordingly, he petitioned for more time to appeal the dismissal which, he said, he had never authorized his counsel to request. Although he did not cite Rule 4(a)(6) of the Federal Rules of Appellate Procedure, that rule allows district courts to permit an additional 14 days to file an appeal when a litigant did not receive notice of the entry of judgment. *546Fed. R.Ajpp. P. 4(a)(6). Ellison elaborated that the case’s dismissal “may” have been “due to intimidation, coersion [sic] or influence,” and he therefore also requested that the court reinstate his case “due to inept appointed counsel.” Shortly thereafter in February the district court denied both motions as “untimely and moot” because the case had been terminated three months earlier, on October 31.
Ellison did not appeal the district court’s order in February rejecting his contention that the dismissal was unauthorized and denying him additional time to appeal the dismissal. Instead, Ellison filed two more post-judgment motions (one later in February and the other in May), reiterating the same argument advanced in his first motion — that he had not consented to the dismissal requested by his attorney. The district court summarily denied both motions in June 2009, again noting that the case had been terminated in October and warning Ellison to refrain from filing further motions. Ellison filed this appeal within 30 days of that ruling.
On appeal, Ellison challenges the merits of the district court’s dismissal in October, arguing that, before granting his attorney’s motion to dismiss, the district court should have required proof that Ellison had authorized the request. But we first address the existence and scope of our jurisdiction. Doctor’s Assocs., Inc. v. Duree, 375 F.3d 618, 621-22 (7th Cir.2004). The district court entered its final order on October 31. The order said that Ellison’s complaint was dismissed “without prejudice,” suggesting a lack of finality, but it also said that his case was “terminated.” We have held that when an order “looks both ways” like this, the “safest course” is to consider it final and appealable. See Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir.2003); see also Chase Manhattan Mortgage Corp. v. Moore, 446 F.3d 725, 726 (7th Cir.2006) (quoting Munson Transp., Inc. v. Hajjar, 148 F.3d 711, 714 (7th Cir.1998)). Therefore, all of Ellison’s subsequent motions are post-judgment motions, and because he filed each of them more than 10 days later, they are viewed as motions under Rule 60(b) of the Federal Rules of Civil Procedure. See Kiswani v. Phoenix Sec. Agency, Inc., 584 F.3d 741, 742-43 (7th Cir.2009). And because Ellison filed his notice of appeal within thirty days of the district court’s denial of just his last two Rule 60(b) motions in June, we have jurisdiction to review only those two denials; we do not have jurisdiction to review the denial of his earlier, materially identical Rule 60(b) motion in February or the underlying dismissal from October. See Fed. R.App. P. 4(a)(1); Easley v. Kirmsee, 382 F.3d 693, 696 n. 3 (7th Cir.2004); Castro v. Bd. of Educ. of the City of Chi., 214 F.3d 932, 934 (7th Cir.2000).
Ellison faces a difficult task in asking us to disturb the district court’s judgment. Relief under Rule 60(b) is an extraordinary remedy, and we review the district court’s ruling only for abuse of discretion. Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir.2006). Moreover, our review in a case like this is even more deferential, where Ellison is essentially appealing the district court’s refusal to reverse its prior ruling in February denying his earlier Rule 60(b) motion. Eskridge v. Cook County, 577 F.3d 806, 808 (7th Cir.2009).
In his last two post-judgment motions, Ellison maintained that his attorney acted without authority in moving to dismiss his amended pro se complaint. Rule 60(b) may, in limited circumstances, provide relief when an attorney acts without authority to dismiss his client’s claims. See Smith v. Widman Trucking & Excavating Inc., 627 F.2d 792, 795 (7th Cir.1980); Bradford Exchange v. Trein’s Exchange, 600 F.2d 99, 102 (7th Cir.1979); *547see also Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir.1999); Stewart v. M.D.F., Inc., 83 F.3d 247, 251 (8th Cir.1996). But the movant must provide proof (such as an affidavit) that he did not consent to his attorney’s actions. Smith, 627 F.2d at 796; Bradford Exchange, 600 F.2d at 102. Ellison did not do so in any of his post-judgment motions.
But even if he had sworn that his attorney had not authorized the dismissal, Ellison made that same pitch in his earlier Rule 60(b) motion and had an opportunity to obtain appellate review when the district court rejected this prior motion in February. Successive 60(b) motions cannot be used to extend the time to appeal the denial of an earlier motion, and a district court may permissibly deny a later Rule 60(b) motion grounded in a contention that could have been raised in an earlier appeal. See Stoller v. Pure Fishing, Inc., 528 F.3d 478, 480 (7th Cir.2008); Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir.2004); Bell v. Eastman Kodak Co., 214 F.3d 798, 800 (7th Cir.2000). Under these circumstances, the district court did not abuse its discretion in denying Ellison’s last two post-judgment motions.
Accordingly, we AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480382/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joshua Barrett Shapiro appeals the district court’s order granting the Defendant’s motion for summary judgment and 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. See Shapiro v. Lanteigne, No. 2:09-ev-00339-MSD-FBS (E.D.Va. Jan. 22, 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/8480322/ | ORDER
Ayinde James pleaded guilty to distributing crack cocaine, 21 U.S.C. § 841(a)(1), and possessing a firearm in furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A). The probation officer calculated a total guidelines imprisonment range of 87 to 93 months, but the district court credited James for accepting responsibility, thereby reducing the range to 81 to 87 months. At sentencing the government recommended a prison term of 87 months, but the district judge said he would instead accept James’s request to be sentenced at the low end of the guidelines range. Nevertheless, when pronouncing sentence, the district judge imposed terms of 27 months on the distribution charge and 60 months on the firearm charge, for a total of 87 months’ imprisonment. That sentence is also reflected in the written judgment.
On appeal James argues that the 87-month prison sentence cannot be reconciled with the district judge’s stated intent to sentence him at the low end of the guidelines range, and the government concedes the point. In light of the discrepancy between the district court’s comments and the sentence ultimately imposed, we agree with the parties that it would be prudent to permit the court to clarify whether the pronounced sentence was deliberate or based on a misapprehension of the guidelines range. See United States v. Bartlett, 567 F.3d 901, 910 (7th Cir.2009). *549Accordingly, we VACATE James’s sentence and REMAND for resentencing. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480323/ | ORDER
Lisa Gillard claims that Proven Methods Seminars, LLC, ran afoul of several federal antidiscrimination statutes by kicking her out of an event because of her race, religion, and disability. The district court dismissed the complaint. Gillard appeals, and we affirm the judgment.
At this stage in the proceedings we must accept as true the facts Gillard alleges in her complaint. See Jay E. Hayden Found, v. First Neighbor Bank, No. 09-*5502781, 2010 WL 2485678, at *1 (7th Cir. June 22, 2010). Gillard, an African American who practices Buddhism and suffers from an unexplained mental disability, attended a seminar hosted by Proven Methods. She selected a seat on the west side of the room, but that side became crowded, so she moved to the east side. A man approached and interrogated her about why she had switched seats. Gillard refused to answer because she thought he was abrasive, and in any event she had not been given written notice of any special seating arrangements. The man, who turned out to be a Proven Methods employee, told her to leave the seminar and eventually had her escorted out.
In her complaint Gillard claims that Proven Methods violated Title II of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a to 2000a-6, by denying her “the full use and enjoyment” of its seminar on the basis of her race and religion. She also claims that the company violated the ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, by removing her from the seminar on the basis of a “legally cognizable mental disability that affects her reading.” And, she adds, her expulsion on the basis of her race violated Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-4, because Proven Methods “is a nationwide research and educational organization and clearing house for federal, state and local government grants and programs.” She demands $80 million in damages. The district court dismissed the complaint on the company’s motion, although on one claim the dismissal was without prejudice.
Gillard’s claims in this case mirror those in a baseless complaint she filed against Northwestern University after the school removed her from its library. See Gillard v. Nw. Univ., 366 Fed.Appx. 686 (7th Cir.), cert. denied, — U.S. — , 130 S.Ct. 3430, 177 L.Ed.2d 339 (2010). The arguments she presents to us here are essentially identical to those she made in her appeal against Northwestern, which we rejected one month before this appeal was filed. See id. As we have already explained to Gillard, see id. at 688-89, the statutes she has invoked would all require proof that she was treated differently because of her race, religion, or disability, yet the events she describes in her complaint do not raise even a plausible inference that Proven Methods kicked her out of its seminar on the basis of these forbidden grounds. See 29 U.S.C. § 794(a) (prohibiting discrimination against “qualified individual with a disability”); 42 U.S.C. § 2000a(a) (prohibiting discrimination “on the ground of’ race or religion); 42 U.S.C. § 2000d (prohibiting discrimination “on the ground of race”); 42 U.S.C. § 12182(a) (prohibiting discrimination “on the basis of disability”); Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009) (holding that facts pleaded in complaint must “permit the court to infer more than the mere possibility of misconduct”); Golden v. Helen Sigman & Assocs., 611 F.3d 356, 362 (7th Cir.2010) (dismissing claim that “lack[ed] the factual specificity required to raise it above the speculative level”). We do not see any reason to disturb the district court’s judgment except that, because the lawsuit is frivolous, we modify the dismissal to be with prejudice as to all claims.
Gillard’s appeal is also frivolous. Proven Methods has suggested that we sanction her, although the company stopped short of filing a separate motion as required by Federal Rule of Appellate Procedure 38. See Bingham v. New Berlin Sch. Dist., 550 F.3d 601, 605 (7th Cir.2008). We do warn Gillard, however, that, if she continues to file frivolous appeals, she will be subject to sanctions or restrictions on future litigation. See Support Sys. Int’l, *551Inc. v. Mack, 45 F.3d 185, 186 (7th Cir.1995).
AFFIRMED as MODIFIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480324/ | ORDER
William Keller and Ronnie Gullion claim that their employer discriminated against them based on their sex in violation of Title VII of the Civil Rights Act of 1964. See 42 U.S.C. §§ 2000e to 2000e-17. The district court dismissed their suit on summary judgment, reasoning that they had failed to produce evidence of disparate treatment and that the defendants’ supposedly sexist conduct was not sufficiently egregious to create a hostile work environment. Keller and Gullion appeal, but we do not see any reason to disturb the district court’s judgment.
Keller and Gullion work at a psychiatric hospital operated by the State of Indiana. Keller is a “Psych Attendant 4,” which requires him to dress and feed the hospital’s patients, while Gullion is a Licensed Practical Nurse, which requires him to distribute medication. Many of the patients suffer from severe mental illnesses and at times are prone to violent outbursts. To defuse these “psychiatric emergencies,” the hospital trains its staff to subdue the out-of-control patient by employing a number of restraining techniques.
Before August 2006 the hospital had no formal policy addressing psychiatric emergencies. Instead, Keller testified at his deposition, the hospital’s attendant supervisor would choose and direct particular employees to resjoond to a psychiatric emergency. “A lot of times,” Keller explained, the attendant supervisor chose male employees.
In August 2006 the hospital introduced a policy known as Code Green. Under this policy, each unit within the hospital is responsible for selecting one employee to respond to a psychiatric emergency. But male employees continue to bear the brunt of the burden, Keller testified: “[T]hey would call a Code Green and nobody would go. And it would be up to the men to go. The women would just sit there. ‘Well, you need to go.’ They would tell us that we need to go or the supervisors would tell us we need to go.”
Keller and Gullion filed this suit claiming that, by requiring only men to respond to potentially dangerous psychiatric emergencies, the hospital subjected them to disparate treatment based on their sex and to a hostile work environment. See 42 U.S.C. § 2000e-2(a)(l). The defendants moved for summary judgment, arguing primarily that the plaintiffs had failed to produce evidence of discrimination under either theory. In the alternative, the defendants asserted as a defense that the plaintiffs’ sex was a bona fide occupational qualification (“BFOQ”) permissible under 42 U.S.C. § 2000e-2(e). The district court granted the defendants’ motion. The court noted that the plaintiffs had not produced any direct evidence of discrimination. The court also reasoned that the plaintiffs had failed to establish a prima facie case of discrimination under the indirect method because they had not demonstrated either that they suffered an adverse employment action or that they were required to respond to psychiatric emergencies more frequently than similarly situated female employees. Finally the court concluded that the defendants’ conduct was not sufficiently egregious to establish a hostile work environment.
*553On appeal the plaintiffs do not address the district court’s conclusion that they lacked evidence of disparate treatment but argue instead that the court ignored the defendants’ “concession” in their alternative argument that the plaintiffs’ sex was a BFOQ. A BFOQ defense is a narrow exception to the general prohibition on sex-based discrimination. See Henry v. Milwaukee County, 539 F.3d 573, 579-80 (7th Cir.2008). But Keller and Gullion fail to appreciate that there was no need for the district court to address this alternative argument once it concluded that the plaintiffs failed to produce evidence of disparate treatment. And the plaintiffs do not suggest—nor can we find—any reason to disturb the district court’s reasoning. As the district court explained, primarily because the plaintiffs failed to comply with Local Rule 56.1, the record contains no direct or circumstantial evidence to support an inference of intentional discrimination. See Coffman v. Indianapolis Fire Dep’t, 578 F.3d 559, 563 (7th Cir.2009). Indeed the evidence in the record that Keller and Gullion were required to respond to psychiatric emergencies more frequently than female employees consists merely of their generalized accusations of discriminatory treatment. But these eonclusory statements backed by no evidence are insufficient to stave off summary judgment. See Petts v. Rockledge Furniture LLC, 534 F.3d 715, 722-23 (7th Cir.2008); Lucas v. Chi. Transit Auth., 367 F.3d 714, 726 (7th Cir.2004).
Nor have the plaintiffs established a prima facie case of sex discrimination. See Farr v. St. Francis Hosp. & Health Ctrs., 570 F.3d 829, 833 (7th Cir.2009). The record contains no information about any similarly situated female employee, much less evidence that a similarly situated female employee was excused from responding to psychiatric emergencies. See Winsley v. Cook County, 563 F.3d 598, 605 (7th Cir.2009).
Finally the plaintiffs argue that the district court erred by rejecting their hostile-work-environment claim. But the supposedly sexist conduct they identified— namely that the hospital selectively enforced its policy forbidding employees to wear shorts and refused to allow male employees to play cards on the job—is not sufficiently severe to create an abusive working environment. See Scruggs v. Garst Seed Co., 587 F.3d 832, 840 (7th Cir.2009).
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480326/ | ORDER
Jimmie Durant pleaded guilty to drug charges and also agreed to forfeit, among other things, a $41,000 cashier’s check. The district court entered a preliminary order of forfeiture listing the check. Subsequently, the court sentenced Durant to 78 months’ imprisonment. Durant did not appeal his conviction or sentence. Seven months later, he filed a motion asking for the return of his forfeited check, arguing the check was payment for lawful construction work. The district court dismissed the motion for lack of jurisdiction, explaining that Durant’s challenge to this aspect of his sentence was too late.
On appeal Durant focuses on the merits of his forfeiture argument but does not address the district court’s conclusion that it lacked jurisdiction. As the district court noted, a criminal forfeiture is part of a criminal sentence and can be challenged only on direct appeal. Young v. United States, 489 F.3d 313, 315-16 (7th Cir.2007). Durant did not challenge the forfeiture on direct appeal and cannot do so now.
It makes no difference that the district court failed to include the forfeiture in the final judgment. The plea agreement and the preliminary forfeiture order reflect the parties’ intent that the forfeiture be part of the judgment; therefore, the omission is merely a clerical error correctable at any time under Fed.R.Crim.P. 36. United States v. Quintero, 572 F.3d 351, 353 (7th Cir.2009).
That is the end of this appeal, but we note one final matter. Durant also contends that his counsel was ineffective. Such claims are best left for collateral review, and indeed Durant has addressed that issue in a separate proceeding. Durant v. United States, No. 10-C-0045, 2010 WL 996407 (E.D.Wis. Mar. 15, 2010).
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480327/ | ORDER
ON REMAND FROM THE UNITED STATES SUPREME COURT
The judgment of this court,
Disposition filed 02/27/10, is vacated and the case is REMANDED to the district court for further consideration in light of Skilling v. United States, 561 U.S. -, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010).
It is so ORDERED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480328/ | MEMORANDUM **
In these consolidated petitions for review, Roberto Eusebio Martinez-Perez, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) orders denying his motion to reopen and denying his subsequent motion to reconsider. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen and reconsider, and review de novo questions of law, including claims of due process violations due to ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petitions for review.
The BIA did not abuse its discretion in denying Martinez-Perez’s motion to reopen as untimely because it was filed almost two years after the BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and Martinez-Perez failed to establish grounds for equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (equitable tolling available to a petitioner who is prevented from filing due to deception, fraud or error, and exercises due diligence in discovering such circumstances); see also Hernandez v. Mukasey, 524 F.3d 1014, 1020 (9th Cir.2008).
*614Because the untimeliness of the motion to reopen is dispositive, we do not reach Martinez-Perez’s remaining contentions relating to the merits of his underlying ineffective assistance of counsel claim.
The BIA also did not abuse its discretion in denying Martinez-Perez’s motion to reopen based on changed country conditions because he failed to present previously unavailable and material evidence of changed country conditions in Guatemala. See 8 C.F.R. § 1003.2(c)(3)(ii); see also Konstantinova v. INS, 195 F.3d 528, 530 (9th Cir.1999).
The BIA did not abuse its discretion by denying Martinez-Perez’s motion to reconsider because he failed to identify any error of fact or law in the BIA’s January 28, 2008, decision. See 8 C.F.R. § 1003.2(b)(1).
PETITIONS FOR REVIEW DENIED.
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/8480331/ | MEMORANDUM **
Gulzar Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to remand, and dismissing his appeal from an immigration judge’s decision denying his application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to remand. Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1062 (9th Cir.2008). We review de novo due process contentions and we review for substantial evidence factual findings. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009). We deny the petition for review.
Even if Singh had timely filed his asylum application within one year of entry into the United States, substantial evidence supports the agency’s adverse credibility determination because discrepancies regarding Singh’s employment as a constable police officer in his asylum application go to the heart of his claim. See Don v. Gonzales, 476 F.3d 738, 741-43 (9th Cir.2007) (inconsistencies that go to the heart of the claim from asylum application support an adverse credibility determination). In the absence of credible evidence, Singh has failed to show eligibility for asylum or withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Singh’s CAT claim is based on the testimony the IJ found not credible, and he points to no other evidence to show it is more likely than not he would be tortured if returned to India, his CAT claim fails. See id. at 1156-57.
We deny Singh’s due process claim challenging the BIA’s denial of his motion to remand because the BIA did not abuse its discretion and Singh failed to demonstrate prejudice. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error and prejudice for a petitioner to prevail on a due process claim).
PETITION FOR REVIEW DENIED.
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/8480332/ | MEMORANDUM **
Lin Lin, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s decision denying her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review de novo the agency’s legal determinations and we review for substantial evidence factual findings. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009). We deny the petition for review.
Substantial evidence supports the BIA’s conclusion that the threats Lin received and the property damage her family suffered did not establish past persecution. See Lim v. INS, 224 F.3d 929, 936 (9th Cir.2000) (unfulfilled threats do not constitute persecution). Substantial evidence also supports the BIA’s conclusion that Lin reasonably could relocate within China, particularly given that prior to her arrival in the United States, she lived without any problems in Shanghai for an extended period of time with her two children. See 8 C.F.R. § 1208.13(b)(2)(ii); Gomes v. Gonzales, 429 F.3d 1264, 1267 (9th Cir.2005). Accordingly, Lin’s asylum claim fails.
Because Lin did not establish eligibility for asylum, it follows that she did not satisfy the more stringent standard for withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir.2006).
Substantial evidence also supports the BIA’s conclusion that Lin is not eligible for CAT relief because she failed to show that it is more likely than not that she would be tortured if reipoved to China. See Wakkary, 558 F.3d at 1067-68.
PETITION FOR REVIEW DENIED.
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/8480333/ | MEMORANDUM **
Rajinder Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s adverse credibility determination, Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir.2008), and we deny the petition for review.
Even if he had timely filed his asylum application, substantial evidence supports the agency’s adverse credibility determination because Singh omitted from his asylum application that police electrocuted him during his first arrest, see Husyev v. Mukasey, 528 F.3d 1172, 1181-83 (9th Cir.2008), and did not mention the electrocution or the use of a roller on his legs at his asylum interview, but instead testified that he was held in solitary confinement and deprived of food and water, see Li v. Ashcroft, 378 F.3d 959, 962-63 (9th Cir.2004) (omissions and inconsistencies that go to the heart of petitioner’s claim support an adverse credibility finding). Singh also failed to provide reasonable explanations for the inconsistencies and omissions. See Rivera v. Mukasey, 508 F.3d 1271, 1275 (9th Cir.2007) (adverse credibility finding supported where hearing revealed numerous instances in which petitioner attempted to explain inconsistencies and IJ found explanations insufficient). Further, because the agency had reason to question Singh’s credibility, his failure to provide corroborating evidence undermines his claim. See Sidhu v. INS, 220 F.3d 1085, 1090-92 (9th Cir.2000). In the absence of credible testimony, Singh failed to establish that he is eligible for asylum and withholding of removal. See Farah v. *660Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Finally, because Singh’s CAT claim is based on the same evidence the agency found not credible, and he points to no other evidence showing it is more likely than not he would be tortured if returned to India, his CAT claim fails. See id. at 1156-57.
PETITION FOR REVIEW DENIED.
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/8480335/ | MEMORANDUM **
Zhidong Zhu, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order summarily dismissing his appeal from an immi*671gration judge’s (“IJ”) decision denying his motion to reopen removal proceedings conducted in absentia. Our jurisdiction is governed by 8 U.S.C. § 1252. Reviewing for abuse of discretion, Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.2008), we deny in part and dismiss in part the petition for review.
The IJ did not abuse his discretion in denying Zhu’s motion to reopen because written notice of the hearing was mailed to Zhu and to his counsel of record, and the motion was untimely filed three years after the issuance of the April 13, 2004, in absentia order. See 8 C.F.R. § 1003.23(b)(4)(h).
The IJ also did not abuse his discretion in determining the evidence of religious persecution was insufficient to establish a showing of changed country conditions in China, see 8 C.F.R. § 1003.23(b)(4)(i), and that evidence of smugglers’ threats was insufficient to establish prima facie eligibility for asylum, withholding of removal, and relief under the Convention Against Torture, see Mendez-Gutierrez v. Gonzales, 444 F.3d 1168, 1171 (9th Cir.2006) (prima facie eligibility is established “where the evidence reveals a reasonable likelihood that the statutory requirements for relief have been satisfied”).
We lack jurisdiction to consider Zhu’s contention that the IJ incorrectly determined that Zhu was removable as charged because Zhu failed to exhaust this contention before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (generally requiring exhaustion of claims before the BIA).
We lack jurisdiction to review Zhu’s contention that the IJ should have invoked his sua sponte authority to reopen his proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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/8480359/ | ORDER
Upon consideration of Allvoice Development US, LLC’s unopposed motion for leave to file a sur-reply,
It Is Ordered That:
The motion is granted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480360/ | ON MOTION
ORDER
The Director of the United States Patent and Trademark Office moves for a 30-day extension of time, until September 7, 2010, to file his brief,
*992Upon consideration thereof,
It Is Ordered That:
The motion is granted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480338/ | MEMORANDUM **
Sebastian Barrientos-Velez appeals from his guilty-plea conviction and 51-month sentence imposed for illegal reentry, in violation of 8 U.S.C. § 1326(a). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), *731Barrientos-Velez’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. Appellant has filed a pro se brief. No answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Counsel’s motion to withdraw is GRANTED.
DISMISSED.
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/8480339/ | MEMORANDUM **
California state prisoner Jimmy G. Mejia appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 22531, and we affirm.
Mejia contends that the Board’s 2002 decision to deny him parole was not supported by “some evidence” and therefore violated his due process rights. The state court did not unreasonably conclude that some evidence supports the Board’s decision. See 28 U.S.C. § 2254(d); see also Hayward v. Marshall, 603 F.3d 546, 563 (9th Cir.2010) (en banc).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. We certify for appeal, on our own motion, the issue of whether the 2002 decision of the California Board of Prison Terms (“the Board”) to deny parole violated due process. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480340/ | MEMORANDUM **
Fausto Antonio Fabian appeals from his guilty-plea conviction and 48-month sentence for reentry following deportation, in violation of 8 U.S.C. § 1326(a). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Fabians’ counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental *753brief. No pro se supplemental brief of answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is 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/8480341/ | PER CURIAM:
John R. Francisco, appointed counsel for Tavares Middlebrooks, has filed a motion to withdraw from further representation, supported by a brief prepared pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Middlebrooks’s conviction and sentence are AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480343/ | ON PETITION FOR WRIT OF MANDAMUS.
ORDER
The Paralyzed Veterans of America et al. submit a petition for a writ of mandamus to direct the Secretary of Veterans Affairs to publish final regulations concerning presumptions of service connection related to exposure to Agent Orange or in the alternative to direct the Secretary to publish interim regulations.
Upon consideration thereof,
It Is Ordered That:
The Secretary is directed to respond to the petition no later than noon on Monday, July 19, 2010. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480344/ | ON MOTION
ORDER
Ruby McFadden moves for leave to file her docketing statement and for counsel to enter an appearance out of time. The Secretary of Veterans Affairs moves for leave to file his docketing statement out of time and moves for a 53-day extension of time, until August 31, 2010, to file his brief.
Upon consideration thereof,
It Is Ordered That:
The motions are granted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480345/ | ON MOTION
ORDER
The appellant moves without opposition to stay the briefing schedule in this appeal pending disposition of a related appeal, Riezler v. Allen, 2009-1528.
Upon consideration thereof,
It Is Ordered That:
The motion is granted and the briefing schedule is stayed pending disposition of the related appeal. The stay of the briefing schedule will be lifted upon issuance of the mandate in 2009-1528. The appellant’s opening brief in this appeal is due within 45 days after the date the mandate issues in 2009-1528. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480346/ | ON MOTION
ORDER
Alexsam, Inc. and Interactive Communications International, Inc. jointly move for a 14-day extension of time, until August 5, 2010, for Alexsam to file its brief, and for a 5-day extension of time, until August 24, 2010, for Interactive to file its reply brief.
Upon consideration thereof,
*971It Is Ordered That:
The motion is granted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480348/ | ON MOTION
ORDER
The United States moves without opposition for a 25-day extension of time, until July 23, 2010, to file a response/reply brief. Arkansas Game & Fish Commission opposes.
Upon consideration thereof,
It Is Ordered That:
The motion is granted. No further extensions should be anticipated. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480349/ | ON MOTION
ORDER
Vera W. Huang moves for a 60-day extension of time.
In an order dated June 14, 2010, this court granted Huang’s previous motion for an extension of time and directed that “[n]o further extensions will be granted,”
Upon consideration thereof,
It Is Ordered That:
(1) The motion for an extension of time is denied.
(2) Pursuant to this court’s May 20, 2010 order, this appeal is transferred to the United States Court of Appeals for the Second Circuit | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480350/ | ON MOTION
ORDER
Upon consideration of the joint motion to dismiss certain parties from this appeal due to settlement,
It Is Ordered That:
The motion is granted to the extent that the revised official caption is reflected above. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480351/ | ORDER
Vera W. Huang moves for an extension of time.
The court notes that this appeal was dismissed on June 11, 2010, 2010 WL 2383950.
Accordingly,
It Is Ordered That:
The motion is denied as moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480352/ | *984JUDGMENT
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/8480353/ | 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/8480357/ | ON MOTION
ORDER
RADER, Chief Judge.
Diamond Sawblades Manufacturers Coalition (Diamond Sawblades) moves to dismiss this appeal from a September 30, 2009 judgment of the United States Court of International Trade. The International Trade Commission (ITC) responds and moves for an extension of time to file its response. Diamond Sawblades replies and moves for an extension of time to file its reply.
We deem the better course is to deny the motion without prejudice to the parties discussing the issues in the briefs.
Accordingly,
It Is Ordered That.-
(1) Diamond Sawblades’ motion to dismiss is denied without prejudice to the parties raising the issues in the briefs.
(2) The motions for extensions of time are granted.
(3) The ITC’s opening brief is due within 40 days from the date of filing of this order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480367/ | OPINION OF THE COURT
CHAGARES, Circuit Judge.
Plaintiffs Stephanie Ritchie and Scott Ritchie appeal from the District Court’s decisions granting summary judgment for defendants Wachovia Bank, N.A. (“Wacho-via”) and Richard DeLuca and denying their request for an extension of time to respond to the motion. The plaintiffs argue that the District Court failed to follow the ten-day notice provision of Federal Rule of Civil Procedure 56(c). We disagree and will affirm the judgment of the District Court.
*134I.
Because we write solely for the benefit of the parties, we will only briefly summarize the essential facts. Stephanie Ritchie was formerly employed by Wachovia, and DeLuca served as her supervisor. On December 28, 2006, she and her husband, Scott Ritchie, filed this action against Wa-chovia and DeLuca, alleging claims based, inter alia, on Title VII of the Civil Rights Act of 1964. Stephanie Ritchie alleges that DeLuca engaged in various forms of sexual harassment, including inappropriate comments, physical contact, and stalking. Scott Ritchie alleges that he suffered damages based on loss of consortium.
On October 10, 2007, after an unsuccessful settlement conference, the District Court ordered the parties to: (1) complete all discovery by January 4, 2008; (2) file any motions for summary judgment by January 18, 2008; (3) file opposition to any motions for summary judgment by February 1, 2008; and (4) file reply briefs by February 8, 2008. Supplemental Appendix (“S.A.”) 127. On January 15, 2008, the District Court granted a motion to compel discovery filed by the defendants, finding that the plaintiffs had failed to respond to the defendant’s discovery requests and the motion to compel. S.A. 186. The Court ordered the plaintiffs to produce several documents by January 16, 2008, serve responses to the defendants’ interrogatories and documents requests by January 18, 2008, and produce plaintiff Scott Ritchie for a deposition by January 18, 2008. Id. Given this schedule for producing the requested discovery, the District Court also modified the summary judgment briefing schedule, extending the date for the defendants to file a motion for summary judgment until January 25, 2008. S.A. 187. This order did not alter any of the other dates set forth in the October 10, 2007 order; the deadline for the plaintiffs to oppose the defendants’ motion for summary judgment remained February 1, 2008. Id.
In accordance with this modified briefing schedule, the defendants filed their motion for summary judgment on January 25, 2008. The plaintiffs did not respond by the February 1, 2008 deadline. Instead, on February 8, 2008, the plaintiffs filed a motion to extend the deadline. Appendix (“App.”) 97-99. The District Court denied this motion on the same day it was submitted. App. 2-4.
On February 13, 2008, the District Court granted summary judgment in favor of the defendants, dismissing all remaining counts of the complaint. App. 5-18. It dismissed the federal claims against DeLuca because individual employees cannot be held liable under Title VII. See Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1077-78 (3d Cir.1996) (en banc). It dismissed the hostile working environment claims against Wachovia because Ritchie had failed to establish a basis for imposing vicarious liability, and it dismissed the retaliation claims because Ritchie failed to make out a prima facie case that Wacho-via took any adverse employment actions against her. Having dismissed all of the federal claims, the District Court declined to exercise supplemental jurisdiction over the remaining state law claims. See 28 U.S.C. § 1367(c)(3). On March 11, 2008, the plaintiffs timely appealed.
II.
The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a district court’s substantive decision to grant summary judgment, but we review the District Court’s decision not to extend the deadline for submitting opposition to the motion for *135summary judgment for abuse of discretion. See Radich v. Goode, 886 F.2d 1391, 1393 (“Whether a district court prematurely grants summary judgment is reviewed for abuse of discretion”).
The plaintiffs do not challenge, and we find no error in, the District Court’s grant of summary judgment for the defendants based on the record before the court. Instead, the plaintiffs challenge the District Court’s decision to deny their motion to extend the time to oppose the defendants’ motion for summary judgment.
The version of Federal Rule of Civil Procedure 56 in effect at the time of the District Court’s decision provided that a motion for summary judgment “must be served at least 10 days before the day set for the hearing.” Fed.R.Civ.P. 56(c) (2008).1 “While Rule 56 speaks of a ‘hearing,’ we do not read it to require that an oral hearing be held before judgment is entered.” Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 177 (3d Cir.1990). Rather, we have interpreted Rule 56(c) as requiring an “opportunity to submit written evidence and argument.” Id. We have explained that the purpose of Rule 56(c) is to provide the nonmoving party with “an opportunity to oppose the entry of summary judgment.” DL Res., Inc. v. FirstEnergy Solutions Corp., 506 F.3d 209, 223 (3d Cir.2007).
Although we have “insisted on strict compliance with the procedural requirements of Rule 56(c),” Brooks v. Hussman Corp., 878 F.2d 115, 116-17 (3d Cir.1989), in this case the Rule does not dictate the result the plaintiffs seek. Rule 56(c) requires ten days’ notice; it does not require ten days in which to respond to the moving party’s brief. See Gibson v. Mayor & Council of the City of Wilmington, 355 F.3d 215, 223 (3d Cir.2004) (“From a procedural standpoint, the Federal Rules of Civil Procedure clearly require that parties be given ten days notice that a motion for summary judgment is being considered.”). This interpretation of the Rule’s notice requirement is supported by our precedent recognizing that a district court “may grant summary judgment sua sponte in appropriate circumstances,” provided that the court provides “prior notice and an opportunity to oppose summary judgment.” DL Res., 506 F.3d at 223 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In this context, we have explained that “a party must be given notice when summary judgment is being contemplated against it so that the evidence necessary to oppose the motion may be marshaled to the Court.” Gibson, 355 F.3d at 224. As this precedent demonstrates, the purpose of Rule 56(c) is to ensure that a party opposing summary judgment has adequate notice and an opportunity to submit opposition.
In this case, the District Court provided ample notice that it would be considering the defendants’ motion for summary judgment and sufficient time for the plaintiffs to respond to the motion. The court established the briefing schedule — setting February 1, 2008 as the deadline for the plaintiffs to file their opposition to the defendants’ motion — on October 10, 2007, over four months in advance. Even when the court extended the deadline for submission of the defendants’ motion on January 15, 2008 because the plaintiffs had failed to respond to several discovery requests,2 more than two weeks remained *136before the deadline for the filing of the plaintiffs’ opposition. Pursuant to this modified briefing schedule, the defendants timely submitted their motion on January 25, 2008, and the plaintiffs were ordered to submit their opposition by the original February 1, 2008 deadline. This sequence of events provided the plaintiffs with sufficient time to oppose the entry of summary judgment. The District Court did not violate the notice requirements set forth in Rule 56(c) or abuse its discretion in declining to extend the deadline for opposing the defendants’ motion.
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
. The timing provisions of Rule 56 were subsequently amended. Throughout this opinion, we refer to the version of the rule in effect during the relevant time period.
. Contrary to the plaintiffs' suggestion, the District Court did not grant summary judgment as a "discovery sanction.” Since the District Court granted summary judgment for *136the defendants for substantive reasons, not as a sanction for the plaintiff’s failure to respond to discovery requests, our decision in Poulis v. State Farm Fire and Casualty Company, 747 F.2d 863 (3d Cir.1984), does not apply. See Anchorage Assocs., 922 F.2d at 178. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480368/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
• Bernard Morris appeals the district court’s order denying his motion to modify the terms of his supervised release. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Morris, No. 3:06-cr-00055-JPB-DJJ-1 (N.D.W.Va. Feb. 17, 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/8480369/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher A. Odom appeals the district court’s order accepting the recommendation of the magistrate judge and 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. Odom v. Mt. Pleasant Police Dep’t, No. 3:09-cv-01941-PMD, 2010 WL 431874 (D.S.C. Jan. 29, 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/8480370/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samuel Paul Crook appeals the district court’s order 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. Crook, No. 3:04-cr-00058-MR-l (W.D.N.C. Feb. 25, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented *213in 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/8480373/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
George Billy Lee Gantt appeals the district court's order denying his 18 U.s.c. § 3582(c)(2) (2006) motion for a sentence reduction. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Gantt, No. 8:04-cr-01013-HFF-1 (D.5.c. Apr. 1, 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/8480424/ | JUDGMENT
PER CURIAM.
This Cause having been heard and con-, sidered, 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/8480376/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eric Bernard Smith appeals the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm. See Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2690-91, 177 L.Ed.2d 271 (2010); United States v. Dunphy, 551 F.3d 247, 251-53 *226(4th Cir.), cert. denied, - U.S. , 129 S.Ct. 2401, 173 L.Ed.2d 1296 (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/8480377/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Danny Lynn Blackmon, a federal prisoner, appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C.A. § 2241 (West 2006 & Supp.2010) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Blackmon v. Drew, No. 09-cv-03035-HFF, 2010 WL 1416726 (D.S.C. Apr. 8, 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/8480378/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rafael Jaimes-Jaimes appeals the district court's order denying his motion for an Extraordinary Writ. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Jaimes-Jaimes, No. 1:01-cr-00245-1 (M.D.N.C. Apr. 26, 2010). We dispense with oral argument because the facts and legal contentions are adecjuately 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/8480379/ | *236Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael T. Stephens 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 deny Stephens’s motion for appointment of counsel and affirm for the reasons stated by the district court. Stephens v. Kubic, No. 4:08-cv-00329-CMC, 2009 WL 2601486 (D.S.C. Aug. 21, 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/8480380/ | Petition dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Henry Anjofei, a native and citizen of Cameroon, seeks review of an order of the Board of Immigration Appeals (Board) dismissing his appeal of the Immigration Judge’s decision denying relief from removal. We have reviewed the administrative record and conclude that Anjofei’s challenge to the adverse credibility finding and his procedural due process claim were not properly exhausted before the Board, and thus are not subject to review. See 8 U.S.C. 1252(d)(1) (2006). Accordingly, we dismiss the petition for review. 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 DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480426/ | 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/8480383/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Georgia L. Gilchrist appeals the district court’s orders dismissing her civil action against the United States Department of Housing and Urban Development and Ra-man Bakshi. We have reviewed the record and find no reversible error. Accordingly, we deny her motion for appointment of counsel and affirm for the reasons stated by the district court. Gilchrist v. Bakshi, No. 8:09-cv-00415-RWT, 2009 WL 4909439 (D. Md. filed Dec. 10, 2009 & entered Dec. 11, 2009; filed & entered Dec. 14, 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/8480384/ | *306Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Azael Dythian Perales appeals the district court’s order dismissing his civil complaint for failure to state a claim. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Perales v. NAACP, No. 1:09-cv-02964-BEL (D.Md. Nov. 25, 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/8480385/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Warren Katz appeals the district court’s order dismissing his civil action based on res judicata. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Katz v. Holland & Knight, LLP, No. 1:09-cv-01106-TSE-IDD (E.D. Va. filed Jan. 8, 2010 & entered Jan. 11, 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/8480387/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joshua Barrett Shapiro appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915(e)(2)(B) (2006). We have reviewed *308the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Shapiro v. Judges of the Va. Beach Dist. Court, No. 2:09-cv-00586-MSD-FBS (E.D.Va. Dec. 24, 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/8480388/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Long Construction Company seeks review of the Benefits Review Board’s decision and order affirming the administrative law judge’s award 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. Stiltner v. Long Constr. Co., No. 08-0124-BLA (B.R.B. Nov. 26, 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/8480390/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joshua Barrett Shapiro appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915(e)(2)(B) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Shapiro v. Stiles, No. 2:09-cv-00344-MSD-FBS (E.D.Va. Oct. 30, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in *310the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
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