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https://www.courtlistener.com/api/rest/v3/opinions/8480670/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clayton Brown appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Brown v. Mathena, No. 7:10-cv-00192-sgw-mfu, 2010 WL 1965105 (WJD.Va. May 14, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before *988the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480672/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sheila Denise White appeals the district court’s order denying her motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). 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. White, No. 5:05-cr-00009-RLV-DCK-17 (W.D.N.C. Apr. 29, 2010). We dispense with oral argument because the facts and *994legal 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/8480674/ | . Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jessie Scott appeals the district court’s order denying his motion to reconsider the *996denial of his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). 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. Scott, No. 1:04-cr-00453-TSE-1 (E.D. Va. filed Apr. 19, 2010 & entered Apr. 20, 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https://www.courtlistener.com/api/rest/v3/opinions/8480676/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
DJ Donnelly appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing this action pursuant to Fed.R.Civ.P. 12(b)(6). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Donnelly v. Bank of Am. Corp., No. 8:09-cv-00910-HMH, 2009 WL 4042692 (D.S.C. Nov. 19, 2009). We deny the motions for discovery and dispense with oral argument *999because 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/8480677/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Angel De Leon, a native and citizen of Guatemala, petitions for review of an order of the Board of Immigration Appeals (“Board”) dismissing his appeal from the immigration judge’s denial of his application for adjustment of status. We have reviewed the record and the Board’s order and affirm the denial of relief for the reasons stated by the Board. In re: De Leon (B.I.A. Feb. 25, 2010); see Ramirez v. Holder, 609 F.3d 331, 335-37 (4th Cir. 2010) (holding that an alien who is inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I) (2006) is ineligible for adjustment of status pursuant to 8 U.S.C. § 1255(1) (2006)). Accordingly, we deny 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 DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480678/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Reginald Boone appeals the district court's order denying his motion for a reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and hold the district court did not abuse its discretion in denying the motion. See United States v. Stewart, 595 F.3d 197, 200 (4th Cir.2010). Accordingly, we affirm the district court's order for the reasons stated there. See United States v. Boone, No. 2:92-cr-00113-002 (E.D.Va. Feb. 18, 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/8480679/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Fausto Cepeda appeals the district court’s order denying his motion filed pursuant to 18 U.S.C. § 3582(c)(2) (2006), which sought a reduction in sentence based on the amendments to the crack cocaine sentencing guidelines. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Cepeda, No. 3:93-cr-00128-JRS-1 (E.D.Va. Feb. 9, 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/8480680/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
George Fredrick Delaney seeks to appeal the district court’s order granting summary judgment in favor of some, but not all, Defendants and dismissing them from this 42 U.S.C. § 1983 (2006) inmate civil rights action. 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 Delaney seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we deny Delaney’s motion to amend 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/8480681/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Darocha appeals the district court’s order dismissing his civil complaint for failure to state a claim on which relief may be granted. On appeal, we confine our review to issues raised in the Appellant’s brief. See 4th Cir. R. 34(b). Because Darocha’s informal brief does not challenge the basis for the district court’s disposition, Darocha has forfeited appellate review of the court’s order. Accordingly, we deny Darocha’s motion to expedite and we affirm the judgment of the district court. 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/8480682/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Darocha appeals the district court’s order dismissing his civil complaint for failure to state a claim on which relief may be granted. On appeal, we confine our review to issues raised in the Appellant’s brief. See 4th Cir. R. 34(b). Because Darocha’s informal brief does not challenge the basis for the district court’s disposition, Darocha has forfeited appellate review of the court’s order. Accordingly, we deny Darocha’s motion to expedite and affirm the judgment of the district court. 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/8480683/ | PER CURIAM: *
The request to recuse is rejected. No conflict of interest exists and appellant complains only of action consistent with the judicial duties of this court.
Appellant has failed to state a viable complaint. His problem is only with the exercise of the disciplinary responsibility of the defendants. As the district court has correctly explained, absolute prosecu-torial and judicial immunity bar this action.
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/8480684/ | PER CURIAM: *
The Federal Public Defender appointed to represent Salvador Gutierrez-Madrigal (Gutierrez) 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). Gutierrez 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/8480685/ | PER CURIAM: *
George Ernest'Abaidoo Thompson, a citizen and native of Ghana, petitions this court for review of a February 8, 2008, decision by the Board of Immigration Appeals (Board) affirming the Immigration Judge’s (IJ’s) determination that he is ine*132ligible for cancellation of removal. Thompson also seeks review of an April 8, 2009, Board decision denying his motion to reopen.
In the February 8 order, the Board agreed with the IJ’s determination that Thompson’s 2006 New York conviction for seventh-degree criminal possession of a controlled substance qualifies as an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B) because it corresponds to the recidivist provisions of 21 U.S.C. § 844(a) when considered with his May 2004 conviction for the same offense. The Board relied on its precedent in Matter of Carachuri-Rosendo, 24 I & N Dec. 382 (BIA 2007), aff'd, Carachuri-Rosendo v. Holder, 570 F.3d 263 (5th Cir.2009), rev’d, - U.S. -, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010) to reject the argument that Thompson’s 2006 conviction should not qualify as an aggravated felony because it was not prosecuted as a recidivist offense under New York law, stating that “Fifth Circuit precedent does not presently impose any such requirement.”
Since the Board’s decision, the Supreme Court has held that to qualify as an aggravated felony, “the conduct prohibited by state law must be punishable as a felony under federal law” and “the defendant must also have been actually convicted of a crime that is itself punishable as a felony under federal law.” Carachuri-Rosendo, 130 S.Ct. at 2589. Accordingly, “second or subsequent simple possession offenses are not aggravated felonies under § 1101(a)(43) when ... the state conviction is not based on the fact of a prior conviction.” Id. at 2580. In this case, though Thompson’s 2006 conviction is a subsequent simple possession offense, the conviction is not a crime punishable as a felony under federal law, nor was the eonviction pursuant to the state recidivist statute.
In accordance with the Supreme Court’s ruling, Thompson’s petition for review of the Board’s February 8 order is GRANTED and the order of the BIA is VACATED and REMANDED. Thompson’s petition for review of the Board’s April 8 order is DISMISSED AS MOOT.1
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.
. We do not address the portion of the Board's February 8 order rejecting Thompson’s claims of ineffective assistance of counsel. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480686/ | ORDER
Wisconsin inmate Allen Payette claimed that officials at Marathon County Jail in Wausau, Wisconsin, were deliberately indifferent to his serious mental health needs. A jury concluded otherwise. Pay-ette appeals and we affirm.
Payette’s suit under 42 U.S.C. § 1983 arises from his confinement between March and October 2006. As relevant here, we previously ruled that a trial was needed to resolve Payette’s claim that jail administrator Bob Dickman and corrections supervisor Seth Wiskow deliberately refused to provide Payette with recommended mental health treatment. See Payette v. Hoenisch, 284 Fed.Appx. 348 (7th Cir.2008).
On remand, the district court held a two-day trial, which focused on whether Dickman and Wiskow deliberately ignored the health recommendations of any mental health professional. Payette testified that *298he was examined by a psychologist after he was hospitalized for swallowing a staple and other items from his cell. The psychologist noted that Payette denied being suicidal and presented no immediate threat of suicide. The psychologist recommended that, though in-patient care was not needed, Payette should remain in isolation at the jail on suicide watch. Pay-ette returned to the jail the next day. In response to the psychologist’s recommendation, Dickman promptly issued a memorandum requiring Payette to remain in restraints at all times except when using the toilet. Dickman also testified that, as the psychologist recommended, Payette remained in isolation during his last days of confinement at the jail, with a suicide watch at least part of the time and in restraints generally. Dickman further testified that he directed Wiskow to schedule an appointment for Payette with the crisis staff, who regularly met with inmates on Thursdays. Payette missed his appointment, though, because he was being treated off-site for swallowing a metal piece of the sink from his cell. Payette’s appointment with the crisis staff was rescheduled for the following Thursday, but Payette was permanently transferred to state prison before then. The jail passed on the psychologist’s recommendations when he was transferred to the state prison.
At the close of the trial, the jury found that although Payette had a serious mental health condition, neither Dickman nor Wis-kow was deliberately indifferent to his needs. Payette, who was represented by counsel during pretrial proceedings and at trial, appeals both the trial verdict and his pro se posttrial motion for a new trial.
On appeal, Payette first challenges the admission of a partially unredacted copy of his prison intake psychological report, which refers to his conviction for first-degree sexual assault. The district court had previously barred any reference to that conviction, but the intake form shown in court and later submitted to the jury did contain unredacted references to the conviction. (At no point did any witness or counsel reference the convictions or call attention to their presence in the exhibit.) Payette’s counsel never objected to the exhibit’s content; the defendants noticed that the document was not fully redacted before it was sent to the jury room during deliberations and attempted to black out references to the conviction (though the defendants missed some). Payette’s counsel was again given the opportunity to review the redactions before it was sent to the jury, but again made no objection. By failing to object to the exhibit after reviewing it, Payette waived any objection to its admission or the redactions. See King v. Harrington, 447 F.3d 531, 533-34 (7th Cir.2006) (holding that failure to object to redactions waives appellate review).
. Payette next challenges the district court’s decision barring any reference to administrative rules prohibiting the prolonged use of restraints." In our original opinion, we noted that the American Correctional Association, the Federal Bureau of Prisons, and the Wisconsin Department of Corrections require close medical supervision of prisoners placed in restraints for more than a brief time. Payette, 284 Fed.Appx. at 352. But when the defendants moved to bar introduction of the codes, Payette did not object. Again, the failure to object at trial forfeits appellate review. See Naeem v. McKesson Drug Co., 444 F.3d 593, 610 (7th Cir.2006).
Payette also argued in his pro se posttrial motion that the court should order a new trial because documents, which he contends are newly discovered, show that the defendants personally knew upon his return from the hospital that Payette *299needed immediate psychiatric treatment. But Payette’s submission consists of documents that his counsel had in his possession during the trial. Even if Payette himself only discovered them after the trial, the records are not “newly discovered evidence” that would support a motion for a new trial because his counsel had these documents and submitted some in support of the summary judgment motions. See Exxon Shipping Co. v. Baker, 554 U.S. 471 n. 5, 128 S.Ct. 2605, 2617 n. 5, 171 L.Ed.2d 570 (2008) (noting motions under Rule 59 cannot be used to present evidence that could have been presented prior to judgment); Egonmwan v. Cook County Sheriff’s Dep’t, 602 F.3d 845, 852 (7th Cir.2010) (holding that evidence is not newly discovered when counsel is aware of it); Cato v. Thompson, 118 Fed.Appx. 93, 96 (7th Cir.2004) (noting that lack of attorney diligence is not grounds for a new trial under Rule 59).
Payette next contends that these three errors — the failure to object to the admission of the unredacted exhibit, the acquiescence to the motion in limine, and the failure to follow up on the evidence Pay-ette discovered after trial — demonstrate that his counsel’s performance was deficient, and accordingly he has been denied the effective assistance of counsel. But Payette has no constitutional right to effective counsel in a civil suit, and so his claim would not warrant a new trial. See Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir.2001); Bell v. Eastman Kodak Co., 214 F.3d 798, 802 (7th Cir.2000).
Finally, Payette contends that the verdict should be reversed because it was against the weight of the evidence. We would reverse a judgment only if, viewing the evidence in the light most favorable to the prevailing side, no rational jury could have rendered the verdict. Tate v. Executive Mgmt. Servs., Inc., 546 F.3d 528, 531-32 (7th Cir.2008); Walker v. Bd. of Regents of Univ. of Wis. Sys., 410 F.3d 387, 393 (7th Cir.2005). But here there was a reasonable basis in the record to support the verdict: the defendants followed the doctor’s recommendations for isolation and suicide watch; they arranged for medical care after the suicide attempts; and they arranged for Payette to meet with mental health staff at the regular Thursday appointments; it was only because Payette needed off-site surgery for swallowing a piece of metal and he was later transferred out of Marathon County Jail that he did not attend the appointments. The defendants also acknowledged and provided documentation of Payette’s condition and treatment when he was transferred to state prison. This evidence was sufficient for a rational jury to conclude that despite Payette’s serious mental health issues, the defendants were not deliberately indifferent to his needs. Accordingly, we will not disturb the verdict.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480688/ | ORDER
The district court dismissed James Jans-sen’s petition for a writ of habeas corpus because he failed to file it within the statute of limitations. On appeal he argues that his untimely filing should have been excused by application of equitable tolling. Because we agree with the district court that Janssen did not diligently pursue his postconviction claims, we affirm the judgment.
Janssen’s conviction for first-degree intentional homicide, see Wis. Stat. § 940.01, became final in December 1997. In September 1998 he filed a petition for a writ of habeas corpus in federal district court. See 28 U.S.C. § 2254. At the same time he moved the court to hold his petition in abeyance while he pursued postconviction relief in state court. The district court, without acknowledging that motion, instead dismissed the petition in February *3061999 on the ground that Janssen had not exhausted his state-court remedies. See id. § 2254(b)(1)(A). The court reassured Janssen that, if his pursuits in state court proved unfruitful, he could file a new petition in federal court without running afoul of the ban on successive petitions. See id. § 2244(b)(1). What the court overlooked, however, was that the statute of limitations had expired in December 1998, one year after his conviction became final. See id. § 2244(d)(1)(A); Duncan v. Walker, 533 U.S. 167, 181-82, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (holding that filing § 2254 petition does not toll statute of limitations).
Janssen did not ask for reconsideration or remind the district court about his overlooked request to hold the petition in abeyance. Nor did he appeal the dismissal. Instead he did nothing for more than five years before finally seeking relief in state court in September 2004. See Wis. Stat. § 974.06. That process continued through April 2008, but Janssen then waited nine more months before refiling his § 2254 petition in January 2009.
The state moved to dismiss the petition on the ground that it was more than 10 years too late. Looking back at the 1999 dismissal, the district court realized that it had overlooked both the statute of limitations and Janssen’s motion to hold the § 2254 petition in abeyance. The court assumed that its order could have misled Janssen into thinking he would be free to refile his petition unimpeded by .the statute of limitations, and thus the court evaluated whether to invoke equitable tolling and excuse his untimely filing. But the court reasoned that, even if its mistakes constituted extraordinary circumstances that prevented Janssen from timely filing his petition, he was not entitled to equitable tolling because he did not act diligently after his first petition was dismissed.
Janssen appeals, but we agree with the district court that he was not entitled to proceed with his long-overdue petition. Although equitable tolling is available to a petitioner who can show that extraordinary circumstances prevented him from filing his § 2254 petition within the statutory time limits, Holland v. Florida, - U.S. -, 130 S.Ct. 2549, 2560, 2562, 177 L.Ed.2d 130 (2010); Griffith v. Rednour, 614 F.3d 328, 331 (7th Cir.2010), the petitioner must also show that he diligently pursued relief despite the obstacles placed in his way, Pace v. DiGuglielmo, 544 U.S. 408, 418-19, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005); Tucker v. Kingston, 538 F.3d 732, 734 (7th Cir.2008). Janssen insists that he was diligently pursuing his state-court remedies during the five years after the 1999 dismissal; he took so long to file his § 974.06 petition, he explains, because he is not well-educated in the law and had to navigate burdensome prison policies. But these run-of-the-mill difficulties do not excuse his lengthy delay. See Tucker, 538 F.3d at 735 (holding that lack of legal experience is not an extraordinary circumstance justifying equitable tolling); Johnson v. McCaughtry, 265 F.3d 559, 566 (7th Cir.2001) (holding that incarceration is not an extraordinary circumstance justifying equitable tolling). Moreover, even after the state proceedings had ended, Janssen dallied for months before refiling his petition in federal court. The district court was well within its discretion to conclude that he did not act diligently to overcome any obstacles placed in his way by the dismissal of his first petition. See Guillory v. Roe, 329 F.3d 1015, 1018 (9th Cir.2003) (holding that petitioner who waited 27 months to pursue state-court remedies was not entitled to equitable tolling).
Affirmed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480689/ | ORDER
Brian Meade was injured in an automobile accident when another car rear-ended the one he was driving. He received short-term disability benefits from the National City Corporation Welfare Plan, and, when those expired, he began receiving long-term disability benefits. About fifteen months after he began receiving long-term benefits, the plan administrator notified Meade that it was terminating his long-term benefits because it did not consider him “disabled” under the plan. National City’s Claims Appeal Committee upheld the determination, and Meade filed *310suit in federal court. We agree with the district court that National City had no obligation to reopen his closed appeal to consider new evidence, including a determination from the Social Security Administration that he was disabled under that agency’s standard. We also agree that National City considered Meade’s cognitive impairments and that its decision to terminate his long-term benefits was not arbitrary and capricious. Therefore, we affirm the grant of summary judgment in National City’s favor.
I. BACKGROUND
Brian Meade worked as a branch manager for the National City Mortgage Company. In that role, he managed the activities of a branch office in the origination, processing, and closing of residential mortgage loans, and he led a small staff. The National City Mortgage Company is a subsidiary of the National City Corporation, and Meade was a participant in the Corporation’s Welfare Benefits Plan. The claims administrator was Liberty Life Assurance Company of Boston (“Liberty Mutual”).
Meade was in a car accident unrelated to his job on July 2, 2004, when a vehicle traveling approximately 40 to 50 miles per hour rear-ended his car. The impact pushed Meade’s car forty feet. Meade went to the emergency room. He was diagnosed with whiplash injuries, prescribed medication, and released.
Meade later visited his family physician, who prescribed new medications. On July 13, 2004, Meade visited Dr. Stephen Mull, and Dr. Mull diagnosed Meade with cervical thoracic strain due to the accident. Dr. Mull prescribed physical therapy and continued Meade on muscle relaxants and pain relievers. On August 3, he diagnosed Meade with acute neck pain, and he indicated on a September 3, 2004 form that Meade was unable to work due to severe neck pain and decreased range of motion. Dr. John Mansell saw Meade on August 13, 2004 and noted on a form that Meade suffered a fracture in his cervical spine, and that his condition caused Meade profound decreased range of motion and pain with almost any movement. Dr. Mansell later administered trigger point injections into Meade’s cervical spine.
Meade’s last day of work was August 12, 2004. He applied for and received short-term disability benefits from National City that began on August 20, 2004, and he received them for the maximum term of 26 weeks. Meade then applied for long-term disability payments, and he began receiving those payments in February 2005. In addition, in July 2005, he applied for benefits from the Social Security Administration.
In the meantime, Meade continued to seek and receive treatment. Dr. Mull indicated in December 2004 that Meade was experiencing dizzy spells and difficulty in mental focusing in addition to ongoing shoulder, neck, and upper back pain. Dr. Michael Roh evaluated Meade in December 2004 and confirmed the diagnoses of chronic whiplash syndrome and disc herniation.. He recommended soft tissue manipulation and immobilization and referred Meade to the Mayo Clinic for evaluation. Meade had a neuropsychological examination at the Mayo Clinic on April 7, 2005. On October 12, 2005, Dr. Trent Barnhart, one of Meade’s treating physicians, noted on a Liberty Mutual Functional Capacities Form that Meade was unable to engage in substantial work activities. On July 6, 2006, Meade had a pain consultation with Dr. Nalini Sehgal, a specialist in pain management, and he diagnosed Meade with whiplash associated disorder and museosk-eletal abnormalities.
*311Liberty Mutual, the plan’s claims administrator, also retained physicians to assess Meade’s ability to work. In December 2005, Dr. Richard Corzatt, one of the Liberty Mutual-retained physicians, reviewed Meade’s file and concluded that Meade could not presently engage in sedentary work but should recover sufficiently to return to a sedentary occupation. Liberty Mutual also referred Meade to a neurosurgeon, Dr. Marc Soriano, for an independent medical examination. On March 14, 2006, Dr. Soriano reviewed Meade’s medical treatment history and examined him. Dr. Soriano concluded that there was no objective source supporting a functional impairment and that objective testing did “not correspond to his apparently exaggerated complaints.” Dr. Soriano stated that Meade’s reports of being unable to read or use a computer for more than two or three minutes were inconsistent with his reported ability to watch children’s basketball games, drive a car, and watch television without adverse effects. Dr. Soriano also wrote that when asked, Meade reported an inability to abduct his arms more than 50 degrees. However, Dr. Soriano wrote, Meade tolerated abduction beyond 90 degrees without complaining of pain when he was being tested in other respects and was not aware that his arms were abducted as they were. Dr. Soriano also documented that although Meade walked slowly, stiffly, and haltingly while in the examination room, Dr. Soriano watched through a window as Meade walked to his car in a normal fashion. Liberty Mutual faxed a copy of this report to Meade’s family physician, Dr. Barnhart, and asked for his comments on Dr. Soriano’s findings. Dr. Barnhart did not respond.
On May 11, 2006, pointing in part to Dr. Soriano’s report and conclusions, Liberty Mutual informed Meade that it was terminating his long-term disability benefits. Meade appealed and submitted letters in support of his appeal from two physical therapists and from his new primary care physician. The plan provides that when an adverse decision is based on medical judgment, a review of the claim must be conducted by a health care professional with appropriate training and experience who was not consulted in connection with the adverse decision. Pursuant to this requirement, Dr. Michael Hoffman, a neurosurgeon, reviewed Meade’s file at Liberty Mutual’s request and concluded that Meade that there was no reason Meade could not perform his job as branch manager. National City’s Appeal Committee denied Meade’s appeal in March 2007.
The next month, the Social Security Administration concluded that Meade was “disabled” under the Social Security Act. In August 2007, Meade asked that his long-term disability claim with National City be reopened to consider new evidence, namely the Social Security Administration’s determination, the contents of the Social Security disability claim file, and an additional neuropsychological report. The Appeal Committee did not reopen Meade’s file.
Meade filed suit in federal court challenging the termination of his • long-term benefits. The district court concluded that the decision to terminate benefits was not arbitrary and capricious, and it granted summary judgment in National City’s favor. Meade appeals.
II. ANALYSIS
When a plan gives its administrator full discretion and authority to determine eligibility for benefits, as here, we review a decision denying benefits under the arbitrary and capricious standard of review. See Marrs v. Motorola, Inc., 577 F.3d 783, 786 (7th Cir.2009). The Supreme Court’s decision in Metropolitan Life Insurance *312Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2348, 171 L.Ed.2d 299 (2008), did not change this standard of review. See Majeski v. Metropolitan Life Ins. Co., 590 F.3d 478, 482 (7th Cir.2009); Leger v. Tribune Co. Long Term Disability Benefit Plan, 557 F.3d 823, 831 (7th Cir.2009); Black v. Long Term Disability Ins., 582 F.3d 738, 744-45 (7th Cir.2009).
A. No Error in Failing to Consider New Evidence
Meade argues that National City should have considered evidence he submitted after the Appeal Committee denied his appeal. About a month after that determination, the Social Security Administration concluded that Meade was “disabled” under the Social Security Administration standard. Several months later, Meade submitted a copy of the Social Security decision and underlying Social Security claim file to the plan administrator, along with a recently completed neuropsychological assessment. He asked that the plan administrator reopen his claim to consider this new evidence, but it did not do so. Although under the plan, “[a]ll claims appeal decisions are final and binding,” Meade contends that National City should have reopened his case to consider the new evidence he submitted.
The claimant in Majeski v. Metropolitan Life Insurance Co., 590 F.3d 478 (7th Cir.2009) made a nearly identical argument, and, unfortunately for Meade, we rejected it. We recognized in Majeski that the Supreme Court’s decision in Glenn gave more weight to a plan administrator’s conflict of interest because that administrator had encouraged the claimant to file for Social Security benefits but later ignored the Social Security Administration’s determination when assessing whether the claimant met the plan’s definition of “disabled.” Nonetheless, we said: “But the Social Security decision in Glenn was already part of the administrative record, and no credible reading of Glenn would require a plan administrator to reopen a closed appeal and consider a later Social Security award simply so that a reviewing court has a more complete record under which to examine the court plan administrator’s conflict of interest.” 590 F.3d at 483. In so holding, we distinguished the two cases to which Meade points. We noted that Sloan v. Hartford Life & Accident Insurance Co., 475 F.3d 999, 1004-05 (8th Cir.2007), involved a de novo decision on the right to benefits, which we said was “a different matter altogether.” See Majeski, 590 F.3d at 483; see also Krolnik v. Prudential Ins. Co. of Am., 570 F.3d 841, 843 (7th Cir.2009) (‘When review is deferential — when the plan’s decision must be sustained unless arbitrary and capricious — then review is limited to the administrative record.”). We also recognized that the court in Vega v. National Life Insurance Services, Inc., 188 F.3d 287, 300 (5th Cir.1999), had allowed a claimant to supplement the administrative record, but we rejected that case as an outlier. See Majeski, 590 F.3d at 483. Indeed, plans have a legitimate interest in the finality of their decisions, and the plan in this case made its decisions final upon the Appeal Committee’s determination. See Tegtmeier v. Midwest Operating Engineers Pension Trust Fund, 390 F.3d 1040, 1047 (7th Cir.2004). In line with Majeski, we conclude that National City’s failure to consider materials submitted after the Appeal Committee decision does not constitute error or necessitate a remand.
B. Cognitive Impairments Considered
Meade also argues that the decision to deny him benefits was arbitrary and capricious because, he maintains, National City overlooked his cognitive impairments and depression. Notably, Meade *313does not challenge the Appeal Committee’s determination that there was no identifiable cause for the claimed physical symptoms which he admits were his “primary” allegations of disability.
The plan contains different standards for short-term and long-term benefits. For the long-term benefits at issue in this case, the plan requires a showing that the participant’s condition makes him “unable to perform the duties of your particular job ... After you have been disabled for two years ... [t]he Plan Administrator must determine that your condition makes you unable to perform the duties of any other occupation for which [he is], or could become, qualified by education, training or experience.” Meade sought benefits within two years after his injury, so National City analyzed whether he could perform the duties of his job as branch manager.
The arbitrary and capricious standard of review is deferential, and we will not substitute our judgment for that of the administrator as long as the administrator makes an informed decision and articulates an explanation that is satisfactory in light of the relevant facts. Mote v. Aetna Life Ins. Co., 502 F.3d 601, 606 (7th Cir.2007). However, “‘we will not uphold a termination [of benefits] where there is an absence of reasoning in the record to support it.’ ” Love v. National City Corp. Welfare Benefits Plan, 574 F.3d 392, 396 (7th Cir.2009), (quoting Hackett v. Xerox Corp. Long-Term Disability Income Plan, 315 F.3d 771, 773 (7th Cir.2003)). In addition, ERISA administrators must address reliable evidence of eligibility submitted by a claimant and communicate specific reasons to a claimant for a denial of benefits. Id.
Meade argues that his cognitive impairments were not assessed in combination with his physical impairments. The record reflects, however, shows otherwise. The Appeal Committee decision reflects that the Committee considered his cognitive complaints, as its decision letter states in part:
Although Mr. Meade reports subjective complaints of neck pain, shoulder pain, thoracic pain, difficulty raising arms above shoulders, headaches, blurry vision, and difficulty reading, these subjective complaints are not substantiated by any objective finding. Review of radiological test results, MRI, CT, x-rays does not indicate acute objective findings. Complaints are unsubstantiated, such as inability to lift arms; however there was no atrophy or objective test result. The Committee noted inconsistency in Mr. Meade’s reports of inability, such as unable to read, however, he is still able to do other activities requiring use of vision, such as watch TV, drive, and watch sporting events.
In addition, Dr. Soriano’s report specifically set forth complaints Meade made relating to his cognitive impairments. Dr. So-riano’s description of Meade’s current complaints included that Meade could not read for more than two to three minutes because he becomes dizzy, the room spins, and he becomes nauseated, as well as that he had pain radiating behind his right ear and eye. Dr. Soriano’s report also recounted that Meade’s wife read a written description of the purpose of the exam to Meade because Meade alleged that he could not read it and said he would become dizzy and experience other neurological symptoms after more than a few minutes of reading. And he stated that Meade’s “overall affect is blunted,” an observation that Meade appeared depressed when Dr. Soriano examined him.
Dr. Soriano went on to state, however, that although Meade made these complaints, he found the complaints unsubstantiated by any objective findings in the normal neurological examination he performed. Dr. Soriano concluded that he *314believed Meade’s complaints regarding his vision were “exaggerated.” Notably, Dr. Soriano based his conclusion in part on his own examination of Meade. Cf. Love v. National City Corp. Welfare Benefits Plan, 574 F.3d 392 (7th Cir.2009) (independent medical examiner reviewed the file but did not examine the claimant); Gessling v. Group Long Term Disability Plan for Employees of Sprint/United Mgmt. Co., 693 F.Supp.2d 856 (S.D.Ind. Mar.16, 2010) (same). Dr. Soriano also pointed out that Meade was able to attend sporting events and watch television without experiencing similar problems with his eyes.
Dr. Hoffman’s report also reflects that he considered Meade’s cognitive complaints. He wrote that Meade’s complaints of headaches, blurry vision, and difficulty reading, along with his complaints of other pain, were not substantiated by objective findings, and he noted that Meade’s neurological examination had been normal.1
Meade also emphasizes that neither Dr. Soriano nor Dr. Hoffman mentioned the April 2005 neuropsychological examination he had at the Mayo Clinic. That report notes in the “History of Present Illness” section that Meade “admits that he has some cognitive difficulty since the accident, but he cannot really say if it is progressing or improving. He does have some cognitive complaints as have already been outlined in the medical record.” The report’s “Impression/Report/Plan” section states “comprehension intellectual ability is firmly in the average range ... verbal comprehension intellectual ability is actually high average. Working memory is somewhat lower and just within the average range. Lexical and semantic fluency performances are normal. Delayed auditory verbal memory of paragraph-length information is normal. Acquisition of a supraspan word list presented over serial presentations is mildly to moderately reduced.” The report also noted learning efficiency that was lower than expected and in the compromised range but that the percentage of information recalled thirty minutes later was normal. As the district court noted, nothing in this report was so compelling or different from that in other referenced documentation that the failure to mention the report means we would set aside the decision. See Davis v. Unum Life Ins. Co. of America, 444 F.3d 569, 578 (7th Cir.2006) (consulting physicians need not recite every piece of evidence reviewed).
Our standard of review asks whether the denial decision was arbitrary and capricious, which means that we ask only “whether [the] decision to deny [the claimant] benefits finds rational support in the record.” Fischer v. Liberty Life Assur. Co. of Boston, 576 F.3d 369 (7th Cir.2009). Although some of the medical opinions in this case differ as to whether Meade’s conditions were disabling, under our deferential standard of review, we must defer to National City’s choice between competing medical opinions so long as the choice is rationally supported by record evidence. Black v. Long Term Disability, 582 F.3d 738, 746 (7th Cir.2009). The denial decision has rational support here. None of Meade’s physicians identified an organic cause of his pain, and they recommended against any surgical treatment. The explanations given by the consulting physicians and Appeal Committee shows that they adequately considered Meade’s cognitive complaints, and they presented rea*315sonable explanations for their conclusions. See id. Therefore, National City was entitled to believe them. Finally, that National City both determined eligibility for benefits and paid them does not alter our conclusion. Although Glenn instructs that a conflict of interest is one factor to be considered in conducting our review, we do not find it pushes things over the edge here. See Glenn, 128 S.Ct. at 2351 (“any one factor will act as a tie-breaker when the other factors are closely balanced, the degree of closeness necessary depending on the tie-breaking factors inherent or case-specific importance”).
III. CONCLUSION
The judgment of the district court is Affirmed.
. Dr. Hoffman’s report notes that he had a phone conversation with Meade’s primary care physician, Dr. Barnhart, about a month before Dr. Hoffman filed his report. According to Dr. Hoffman's notes, Dr. Barnhart stated Meade was taking a lot of pain medication and he did not feel comfortable giving him medication, so he referred him to another doctor, as well as that there was a lack of objective findings. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480690/ | ORDER
Angel Figueroa appeals from the district court’s denial of his petition for collateral relief under 28 U.S.C. § 2255. The petition raises several challenges to his convictions and sentence, and we granted a certificate of appealability to resolve one of them: whether the district court adequately informed Figueroa of his right to counsel. We now affirm the district court’s judgment.
Federal officers caught Figueroa trying to purchase heroin from a drug courier. Athough Figueroa did not request assistance under the Criminal Justice Act, he received temporary representation from a federal defender at his initial appearance. The minute order reflecting his initial appearance notes in summary fashion that “defendant was informed of his rights.” Figueroa retained counsel within a week of his arrest but replaced her less than a year later. It was with his second retained attorney that Figueroa proceeded to trial, where he was found guilty of the drug conspiracy.
Figueroa fired his trial counsel shortly after the verdict. Sentencing was delayed over two years as the court allowed Figueroa to retain and fire a succession of five more lawyers. Figuero understood his right to counsel, stating in writing to the court that he “has a Sixth Amendment Right to be represented by counsel at all critical stages of the defense.” The court also advised him that he had the right to represent himself. Figueroa refused to attend the hearing on his final lawyer’s motion to withdraw, so the district court locked in a date for sentencing and told the withdrawing lawyer to inform Figueroa that the date was firm and that he or a retained lawyer of his choice should plan to attend.
Figueroa appeared pro se at sentencing. The district court imposed a term of 240 months’ imprisonment, the mandatory minimum. After announcing the sentence the court asked Figueroa if he wanted court-appointed counsel for appeal. Not wanting to spend more money on legal fees, Figueroa claimed that he did. The court offered to move quickly so that an attorney could “spring into action.”
Despite the court’s offer and Figueroa’s professed desire for appointed counsel, he filed a timely notice of appeal pro se. Before briefing commenced we issued an order asking whether Figueroa wished to *317proceed on appeal without counsel or request an appointed attorney. His response was unequivocal: “It is the position of Appellant that he can perfect his appeal without counsel in this matter. As such, no request for appointment of counsel will be presented to the court for consideration.” On direct appeal Figueroa’s arguments focused on his right under the Speedy Trial Act to a timely indictment and trial; he did not raise an argument concerning his right-to-counsel. In his current petition, he contends he was denied his right to a timely indictment, his right to counsel at sentencing, and his right to counsel on appeal. The certificate of appealability limits our review to the question whether the district court adequately informed Figueroa of his right to counsel.
The record shows by Figueroa’s conduct and words that he understood his right to counsel. Indeed, Figueroa squeezed all he could from the right, delaying his sentencing for two years while he cycled through private attorneys. When at last the court set a firm date for sentencing and presented him with two choices — hiring a lawyer or proceeding pro se — he chose the second, an implicit waiver of the first. See United States v. Alden, 527 F.3d 653, 660 (7th Cir.2008); United States v. Oreye, 263 F.3d 669, 670 (7th Cir.2001). True, the district court did not mention at the hearing before sentencing the familiar third option, that Figueroa may be entitled to an appointed lawyer, but Figueroa made no claim of indigency after over two years of retaining private attorneys. In any case, the minute order from Figueroa’s initial appearance, during which appointed counsel actually represented him, states that he was “informed of his rights.” We understand this to mean, based on the federal rules governing initial appearances, that he was informed of his right to request that counsel be appointed. Fed.R.CRIM.P. 5(d)(1)(B). Therefore, we are satisfied that the court discharged its duty to inform Figueroa of his right to appointed counsel.
Figueroa also renews his argument that he was denied assistance of counsel on appeal when the district court failed to appoint a lawyer for his direct appeal. We interpret this argument as an implicit request to expand the certificate of appealability, which was limited to whether the district court adequately informed Figueroa about his right to counsel. We will amend a certificate of appealability only on a substantial showing of the denial of a constitutional right. See Ouska v. Cahill-Masching, 246 F.3d 1036,1045 (7th Cir.2001). Of course, Figueroa had a constitutional right to counsel on direct appeal, see Evitts v. Lucey, 469 U.S. 387, 402, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). And the district court neglected to appoint a lawyer for his direct appeal after Figueroa requested one. But before briefing proceeded on direct appeal, and therefore before the neglect could harm Figueroa, we gave him the option of requesting counsel. He elected to proceed pro se, thereby intentionally abandoning his right to counsel. Because of this express waiver, and because the constitutional right of self-representation at trial has no analog on appeal, see Martinez v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S. 152, 160-61, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000), we decline to expand the certificate of appealability.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480691/ | ORDER
Dennis Hohol, an inmate, filed suit under 42 U.S.C. § 1983, claiming that he was denied freedom of association and due process — as protected by the First and Fourteenth Amendments — when employees of the Wisconsin Department of Corrections refused to put his granddaughters on his approved list of visitors. The district court granted summary judgment for the defendants. Hohol appeals; we affirm.
Hohol engaged in sex acts with seven boys between the ages of 10 and 14. He was convicted in 2002 of three counts of second-degree sexual assault of a child, see Wis. Stat. § 948.02(2), and one count of *319child enticement, see id. § 948.07(1), and sentenced to 35 years in prison. See State v. Hohol, 287 Wis.2d 827, 705 N.W.2d 905 (App.2005). He was sent in December 2002 to Dodge Correctional Institution. The next month two of Hohol’s granddaughters, ages 11 and 4, were added to a list of approved visitors.
In January 2004, Hohol’s daughter-in-law completed a form to add his 2-month-old granddaughter as an approved visitor. While reviewing that request, officials discovered that one of Hohol’s victims was his stepson and that Hohol had been identified as needing sexual-offender treatment. Given the nature of Hohol’s convictions and the fact that he had not yet received treatment, social worker Barb Zink recommended that all three granddaughters be excluded from his visitors’ list. The warden’s designee — identified in the record only as Ms. Krueger — accepted Zink’s recommendation. Krueger explained that Hohol’s background created reasonable grounds for believing that visitation could be problematic, and disallowed visits from all three girls. See Wis. Admin. Code DOC § 309.08(4)®.
Hohol responded by filing an institutional complaint. He pointed out that no court order barred visitation by his grandchildren and that the older girls had been visiting him for 13 months, and asked that the three girls be put on his visitors’ list. Michael Beck, a complaint examiner, concluded that disallowing visits from the children was appropriate under the Wisconsin Administrative Code. He recommended denying the complaint, and John Bett, the warden, did so. Hohol filed an administrative appeal, but Sandra Hautamaki, the reviewing official, likewise saw no violation of the administrative code. Cindy O’Donnell, deputy secretary of the Wisconsin Department of Corrections, followed Hau-tamaki’s recommendation and upheld the warden’s decision in February 2004.
Hohol also sought visitation with his granddaughters in October 2004. The warden’s designee — identified in the record as J. Bloedow — again accepted the recommendation of social workers and denied visitation. Hohol objected to the decision and filed a complaint, but Beck rejected it as untimely, and Hohol did not appeal.
In November 2007, Hohol filed this pro se lawsuit against Beck, Bett, Hautamaki, O’Donnell, and Cathy Jess, who became the warden at Dodge in December 2004. Hohol claimed that preventing his granddaughters from visiting him in prison violated his rights under the First, Eighth, and Fourteenth Amendments, and he sought $500,000 in damages. At screening, the district court dismissed the Eighth Amendment claim but allowed the First and Fourteenth Amendment claims to go forward. See 28 U.S.C. §. 1915A. Following discovery, however, the court granted the defendants’ motion for summary judgment. The court reasoned that none of the five defendants was personally responsible for any constitutional deprivation Ho-hol might have suffered, as required for a suit under § 1983. Alternatively, the court concluded that the defendants enjoyed qualified immunity.
We review the district court’s grant of summary judgment de novo, see Singer v. Raemisch, 593 F.3d 529, 533 (7th Cir.2010), but Hohol presents nothing on appeal to challenge the conclusion that his suit must fail. Whether he has a constitutional right to receive visits from his granddaughters is an open question, see Overton v. Bazzetta, 539 U.S. 126, 131-32, 123 S.Ct. 2162,156 L.Ed.2d 162 (2003); see also Maydak v. United States, 363 F.3d 512, 516-17 (D.C.Cir.2004); Wirsching v. Colorado, 360 F.3d 1191,1198 (10th Cir.2004), but even if a right exists, Hohol’s *320suit must fail unless the named defendants were personally responsible for barring the children, see Grieveson v. Anderson, 538 F.3d 763, 776 (7th Cir.2008); Johnson v. Snyder, 444 F.3d 579, 583-84 (7th Cir.2006). It was Zink, the social worker, who recommended that Hohol be denied visits from his granddaughters, and Krueger and Bloedow, the warden’s designees, who followed the recommendations and disapproved the girls as visitors.
Hohol contends, however, that Beck, Bett, Hautamaki, O’Donnell, and Jess deprived him of his rights by rejecting his administrative complaint (although Jess, in fact, did not become the warden at Dodge until several months later and had nothing to do with his complaints). But simply evaluating or rejecting an inmate’s institutional complaint does not make a prison official complicit in the alleged deprivation. See George v. Smith, 507 F.3d 605, 609-10 (7th Cir.2007); Greeno v. Daley, 414 F.3d 645, 656-57 (7th Cir.2005). These defendants did not condone or turn a blind eye to any constitutional violation, see Knight v. Wiseman, 590 F.3d 458, 462-63 (7th Cir.2009), and Hohol does not suggest that they did anything else to deny him his rights.
Accordingly, we AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480692/ | ORDER
David Waupoose entered an agreement to plead guilty to voluntary manslaughter, see 18 U.S.C. § 1112(a), and received an above-guidelines sentence of 35 years’ imprisonment. As part of his plea agreement, the parties agreed that a 35-year sentence would be reasonable in light of the government’s agreement to dismiss an earlier count of first-degree murder for the same offense. In return, Waupoose agreed to waive his right to appeal his conviction and sentence. Waupoose nonetheless filed a notice of appeal, and his appointed counsel moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he has concluded that any argument would be frivolous in light of the appeal waiver. Waupoose has filed a response opposing counsel’s motion. See Cir. R. 51(b). Our review is confined to the potential issues addressed in counsel’s brief and in Waupoose’s response. 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).
Counsel represents that Waupoose does not wish to have his guilty plea set aside, and Waupoose does not dispute this point in his response to counsel’s motion. Thus, counsel correctly forgoes discussion of possible challenges to the voluntariness of Waupoose’s plea or the adequacy of his plea colloquy. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002). Because his guilty plea stands, so do his plea agreement and his waiver of appeal. See Nunez v. United States, 546 F.3d 450, 453 (7th Cir.2008); United States v. Wilson, 481 F.3d 475, 483 (7th Cir.2007). Accordingly, we agree with counsel that any potential arguments on appeal related to Waupoose’s sentence or conviction would be frivolous.
*322Counsel also examines whether Waupoose could argue that the district court erred by denying a motion to suppress a confession he gave to police before his arrest. But counsel correctly concludes that any such argument would be frivolous because in pleading guilty, Waupoose waived the right to raise constitutional claims that occurred before his plea. See Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); United States v. Rogers, 387 F.3d 925, 933 (7th Cir.2004).
In his Rule 51(b) response, Waupoose expresses his unhappiness with appellate counsel’s lack of communication and the fact that his trial attorney did not explore the possibility of filing a “motion for mental health issues.” Even though ineffective-assistance claims fall outside the scope of Waupoose’s appeal waiver, any arguments regarding the effectiveness of counsel are better advanced in a collateral proceeding so that a more complete record can be developed. Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005).
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/8480694/ | PER CURIAM.
Guatemalan citizen Amilcar Nicolas Calderon-Lopez petitions for review of an order of the Board of Immigration Appeals (BIA) denying his May 2009 motion to reconsider a prior decision. We conclude that the BIA acted within its discretion. See Kipkemboi v. Holder, 587 F.3d 885, 890-91 (8th Cir.2009) (standard of review). Accordingly, we deny the petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480695/ | PER CURIAM.
Handson Asuma Nyambariga petitions for review of an order of the Board of Immigration Appeals (BIA) denying his July 2009 motion to reopen a prior decision. We conclude that the BIA acted within its discretion. See Clifton v. Holder, 598 F.3d 486, 490-91 (8th Cir.2010) (standard of review). Accordingly, we deny the petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480698/ | PER CURIAM:
William Gregory Hughes, appointed counsel for Herman Reece Odom, Jr., has filed a motion to withdraw on appeal, 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 of the appeal is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Odom’s conviction and sentence are AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480699/ | ORDER
Upon consideration of this court’s September 9, 2010, 392 Fed.Appx. 872, order denying Totolo/King’s motion for abatement and the government’s motion to dismiss,
It Is Ordered That:
Totolo/King’s opening brief is due within Í4 days of the date of filing of this order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480700/ | ON MOTION
ORDER
Upon consideration of Monster Government Solutions, LLC’s unopposed motion to add William M. Jack to the trial court’s protective order,
It Is Ordered That:
The motion is granted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480702/ | ON MOTION
ORDER
Upon consideration of the Department of Veterans Affairs’ motion for a 22-day extension of time, until September 16, 2010, to file its brief,
It Is Ordered That:
The motion is granted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480703/ | ON MOTION
ORDER
Upon consideration of Amazon.com Inc., Facebook, Inc., Microsoft Corp., Oracle Corp., Samsung Electronics Co., Ltd., Toyota Motor Sales, U.S.A., Inc., and Yahoo! Inc.’s motion for leave to file a brief ami-cus curiae in support of Netflix, Inc.,
It Is Ordered That:
The motion is granted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480704/ | 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/8480705/ | JUDGMENT
PER CURIAM.
This Cause having been heard and considered, it is
*715Ordered and Adjudged:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480720/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
Defendant Michael Barrett appeals his convictions and sentence on drug and gun charges stemming from two separate arrests, the first in connection with a police search of an apartment and the second in connection with a police search of Barrett’s car. Barrett was convicted of possession of heroin, cocaine base, and marijuana; possession of a firearm in furtherance of drug trafficking; possession of a firearm by a convicted felon; and related school-proximity counts based on charges arising out of the apartment search. The District Court held a separate trial for the charges arising out of the car search, in which Barrett was convicted of possession of a firearm by a convicted felon but acquitted of marijuana possession, possession of a firearm in furtherance of drug trafficking, and a related school-proximity count.
Barrett’s appeal raises four issues: 1) he challenges the District Court’s admission of the testimony of two different police officers under Federal Rules of Evidence 701(c) and 704(b); 2) he challenges the sufficiency of the evidence used to establish constructive possession in both trials and to establish that possession of a firearm in the first trial was in furtherance of drug trafficking; 3) he challenges the reasonableness of his sentence; and 4) he asks to preserve his right to move for a new trial pending the outcome of law enforcement investigations of Officer Jeffrey Cujdik. We find that none of his arguments has merit, and we will affirm.1
I.
Barrett first argues that the District Court erred when it admitted (a) the testimony of Philadelphia Police Sergeant Michael Gorman that the evidence found in the apartment in which Barrett was arrested was consistent with a large-scale drug operation and (b) the testimony of Detective Freddie Chaves concerning the connection between the firearms found in the apartment and the drug operation.
Sergeant Gorman testified that the evidence recovered from the apartment where Barrett was arrested reflected “a large-scale operation for the sale of heroin and cocaine” and that the “individuals that were inside of this location were running a large-scale” operation. Barrett argues that this testimony was impermissible lay opinion testimony in violation of Federal Rule of Evidence 701 or, alternatively, that the testimony provided an impermissible expert opinion as to the defendant’s mental state in violation of Federal Rule of Evidence 704(b).
Because Barrett failed to preserve these issues at trial, we review them for plain error.2 See United States v. Boone, 279 F.3d 163, 174 n. 6 (3d Cir.2002). Thus, *870Barrett must show that the District Court erred, that the error is so obvious under the law so as to be plain, and that the error affected substantial rights. See Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).
Barrett cannot satisfy this standard. His first argument fails because Sergeant Gorman’s opinion that the evidence recovered from the trash pulls reflected a large-scale drug operation was not based on any “scientific, technical, or other specialized knowledge.” Fed. R.Evid. 701. In light of uncontroverted testimony that the police had, on several occasions, recovered bags containing cocaine and heroin residue and other materials commonly used to package drugs (rubber gloves, a surgical mask, and empty baking soda boxes) from trash that came from inside the apartment, Gorman’s conclusion that the apartment was used to conduct a “large-scale” drug operation was the sort of conclusion that any reasonable layperson could have reached; it did not reflect any particular expertise. See Fed.R.Evid. 701 advisory committee notes (explaining that testimony that “ ‘results from a process of reasoning familiar in everyday life’ ” is permissible under the Rule) (quoting State v. Brown, 836 S.W.2d 530, 549 (Tenn.1992)).
Similarly, Gorman’s testimony that “the individuals that were inside of this location” were running a large-scale drug operation did not violate Rule 704(b). Gorman’s testimony concerned acts that were occurring inside the apartment and did not offer an opinion on anyone’s mental state. Moreover, the context of Gorman’s testimony makes clear that he was speaking generally about whoever was operating out of the apartment, not about Barrett in particular. Thus, Gorman was not “testifying with respect to the mental state or condition of’ the defendant, Fed.R.Evid. 704(b), and the District Court did not plainly err in admitting his testimony.
Barrett also argues that Detective Chaves’s testimony violated Rule 704(b). Because Barrett properly preserved his objection to Chaves’s testimony, we review for abuse of discretion. United States v. Watson, 260 F.3d 301, 306 (3d Cir.2001). Detective Chaves was qualified and testified as an expert on the connection between drugs and guns. He described the general connection between drugs and guns and testified that the presence of guns in the apartment in which Barrett was arrested was “consistent” with the use of guns for protection in a drug operation. The testimony did not reference Barrett (and, in fact, Chaves elsewhere made clear that he was not involved in the investigation and his testimony had “[njothing to do with the persons who were arrested”) or provide any insight into any particular individual’s state of mind. Therefore, the District Court’s decision to admit the testimony was not an abuse of discretion. See United States v. Davis, 397 F.3d 173, 179 (3d Cir.2005) (finding no abuse of discretion where district court admitted expert testimony that provided “no potential for the jury to conclude” that the witness “had any special insight into the thoughts or intent of the defendants”).
II.
Barrett’s second argument incorporates three sufficiency of the evidence challenges.3
*871First, Barrett contends that the government presented insufficient evidence to establish that he constructively possessed the drugs and firearms found in the search of the apartment. “Constructive possession exists if an individual knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons.” United States v. Iafelice, 978 F.2d 92, 96 (3d Cir.1992)(internal quotations omitted). Dominion and control need not be exclusive, but they must be established by something more than “[m]ere proximity.” United States v. Introcaso, 506 F.3d 260, 270-71 (3d Cir.2007) (citations omitted).
Here, in addition to having been found in an apartment containing drugs and packaging material in plain view in the kitchen and guns hidden in the living room, Barrett had a key to the apartment in his pocket; ' he was observed by the police disposing of trash from the apartment that was found to contain drugs and drug packaging paraphernalia; and he fled to the second floor when the police arrived to execute the warrant. Thus, the government did not rely solely on Barrett’s proximity to the drugs or guns, and evidence of Barrett’s constructive possession of the drugs and guns was sufficient to support the jury’s convictions.
Second, Barrett argues that the evidence presented was insufficient to support the jury’s conviction for possession of the guns in furtherance of drug trafficking activities under 18 U.S.C. § 924(c). In United States v. Sparrow, 371 F.3d 851, 853 (3d Cir.2004), we set forth the following, nonexclusive list of factors that are relevant to establish a connection between guns and drug trafficking activities for purposes of charges brought under § 924(c): the type of drug activity, the accessibility of the weapon, whether the weapon is stolen, whether possession of the weapon is legitimate or illegal, whether the weapon is loaded, proximity to drugs recovered, and the time and circumstances of recovery. All of those factors support the conviction in this case, where the evidence showed that the premises were used to package drugs; the guns were easily accessible to any person in the apartment; one of the weapons did not have a serial number and the other was stolen; Barrett did not have a permit for the guns and, as a convicted felon, was prohibited from owning a firearm; the weapons were loaded; and the guns were recovered during the execution of a duly authorized warrant. Thus, on this charge, too, the evidence supported the jury’s conviction.
Third, Barrett challenges the sufficiency of the evidence presented in the second trial to establish that he possessed the gun that the police found in his vehicle. Here again, the evidence was sufficient to support the jury’s verdict. Barrett owned, and was the only passenger in, the car that was the subject of the search. The government offered testimony that Barrett was under police surveillance, that he was observed engaging in what appeared to be narcotics sales, and that he ran a red light to avoid police surveillance, after which he was stopped and arrested. The police secured a warrant to search the car, and found the gun, which was loaded, under the front passenger floor mat. Taken together, Barrett’s ownership and operation of the car and the circumstances surrounding Barrett’s arrest provide sufficient evidence that Barrett constructively possessed the gun. See United States v. Iafelice, 978 F.2d 92, 97 (3d Cir.1992). Accordingly, we will not disturb the jury’s verdict.
III.
Barrett’s third issue on appeal challenges the reasonableness of his sentence. *872As Barrett did not raise his objection at sentencing, our review is for plain error. See United States v. Couch, 291 F.3d 251, 252-53 (3d Cir.2002).
Barrett argues that the District Court erred in adopting a sentencing calculation that incorporated the portion of U.S. Sentencing Guidelines § 2D1.1 that treats 1 gram of crack cocaine as the equivalent of 100 grams of powder cocaine for purposes of calculating an offender’s Base Offense Level. According to Barrett, the District Court “should have started the sentencing analysis with a guidelines range that was calculated using a lower ratio than 100:1.” App. Br. 45.
This challenge fails, for two reasons. First, the District Court did not err in using the ratio set forth in § 2D1.1 to calculate Barrett’s Base Offense Level. In Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and Spears v. United States, 555 U.S. 261, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009), the Supreme Court held only that a sentencing court may depart from the Guidelines’ 100:1 ratio, not that it must do so. See, e.g., United States v. Wise, 515 F.3d 207, 223 (3d Cir.2008) (holding, after Kim-brough, that sentence imposed based on range calculated using 100:1 ratio was not substantively unreasonable).
Second, even assuming that Barrett’s Base Offense Level had been calculated incorrectly (although, as discussed above, it was not), that would not have affected his guideline sentencing range. Barrett’s sentencing range was determined based on his status as career offender under Sentencing Guideline § 4B1.1, which yielded an offense level of 34 and superseded his § 2D1.1 Base Offense Level of 28. Changing the ratio used to calculate Barrett’s § 2D1.1 Base Offense Level would not change his § 4B1.1 career offender offense level and, therefore, would not lower Barrett’s ultimate sentencing range. Cf. United States v. Mateo, 560 F.3d 152, 154-55 (3d Cir.2009) (where defendant’s sentencing range was determined by the alternative career offender level set forth in § 4B1.1, district court did not err in denying defendant’s motion to reduce his Base Offense Level).
IY.
Finally, Barrett asks this Court to preserve his right to challenge his conviction at a future date pending the outcome of ongoing state and federal investigations of Philadelphia Police Officer Jeffrey Cujdik. Officer Cujdik is under investigation based on allegations that he engaged in misconduct in the preparation of search warrants involving a particular confidential informant. Officer Cujdik was not the affiant on the warrant used to search the apartment that led to Barrett’s arrest, and the confidential informant implicated in the investigations is not the confidential informant on whom the police relied in Barrett’s case. In fact, Barrett does not allege wrongdoing by Cujdik or any other officer in connection with this case; he argues only that the investigations might turn up evidence that he could use to challenge his conviction at a later date.
We deny Barrett’s request. Barrett does not seek any immediate relief, and does not point us to any authority that would allow us to hold his case in abeyance pending the outcome of the ongoing investigations. Should the investigations uncover any information that impacts Barrett’s conviction, Barrett may apply to the District Court for appropriate post-conviction relief. See 28 U.S.C. § 2255.
*873y.
For the foregoing reasons, we will affirm the judgment of the District Court.
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
. Barrett objected to Gorman’s testimony, but only on relevance grounds, even though the District Court specifically raised the question of Gorman's qualifications to offer the testimony. Under these circumstances, we cannot conclude that the substance of Barrett's Rule 701 and 704 objections “were made known to the court by offer” or were "apparent from the context within which questions were asked.” Fed.R.Evid. 103(a)(2).
. Our standard of review for challenges to the sufficiency of evidence presented to a jury is particularly deferential. United States v. Dent, 149 F.3d 180, 187 (3d Cir.1998). We view the evidence in the light most favorable to the government, and will sustain the verdict if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. (citations omitted). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480721/ | OPINION
McKEE, Chief Judge.
Kristina Movsesyan petitions for review of an order of the Board of Immigration Appeals affirming the Immigration Judge’s denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture. For the reasons set forth below, we will deny the petition in part and grant the petition in part, and remand for further proceedings.
I.
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252. Because the BIA issued its own opinion that did not expressly adopt or defer to a finding of the IJ, we review only the decision of the BIA. See Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.2003).
Inasmuch as we write primarily for the parties who are familiar with this case, we need not set forth the underlying facts or procedural history. Although the IJ denied Movsesyaris claim based on a finding that she was not credible, the BIA did not rule on the IJ’s adverse credibility determination. Rather, the BIA held that “[e]ven assuming arguendo that the respondent testified credibly, she has still failed to sustain her burden of proof for asylum.” J.A. 28. Since there is no BIA ruling on credibility to review, “we must proceed as if [Movsesyan’s] testimony were credible and determine whether the BIA’s decision is supported by substantial evidence in the face of [her] assumed (but not determined) credibility.” Kayembe, 334 F.3d. at 235.
We review the BIA’s findings of fact under the substantial evidence standard. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). “We will uphold the findings of the BIA to the extent that they are supported by reasonable, substantial and probative evidence ..., and will reverse those findings only if there is evidence so compelling that no reasonable factfinder could conclude as the BIA did.” Kayembe, 334 F.3d at 234.
II.
The Immigration and Nationality Act gives the Attorney General or the Secretary of Homeland Security the authority to grant asylum to any alien who is a “refugee” under 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1)(A). To receive “refugee” status, an asylum applicant must establish “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). An asylum applicant may obtain asylum by proving past persecution on account of a statutorily enumerated ground or a well-founded fear of future persecution on account of a statutorily enumerated ground. Espinosa-Cortez v. Attorney Gen. of the U.S., 607 F.3d 101, 107 (3d Cir.2010).
A.
If an asylum applicant establishes that she suffered past persecution, then a re-*899buttable presumption exists that the applicant has a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1); see, e.g., Espinosa-Cortez, 607 F.3d at 107. “[T]he term ‘persecution’ ... include[s] ‘threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.’” Kibinda v. Attorney Gen. of the U.S., 477 F.3d 113, 119 (3d Cir.2007) (quoting Fatin v. Immigration and Naturalization Servs., 12 F.3d 1233, 1240 (3d Cir.1993)). “Persecution refers to extreme conduct.” Fatin, 12 F.3d at 1240 n. 10. To qualify for asylum based on past persecution, an applicant must show: “(1) an incident, or incidents, that rise to the level of persecution; (2) that is on account of one of the statutorily-protected grounds; and (3) is committed by the government or forces the government is either unable or unwilling to control.” Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir.2003) (internal quotation marks omitted).
Movsesyan claims she suffered past persecution based on political opinion. She was threatened and followed on numerous occasions. On one such occasion she was attacked and suffered two fractured ribs. She was not able to identify any of the perpetrators.
In its opinion, the BIA stated: “Although the respondent testified that she received threatening telephone calls, was occasionally followed, and was attacked on account of her political opinion, we find that she failed to establish that these incidents, whether considered individually or cumulatively, rise to the level of past persecution.” J.A. 28. That con-elusion is supported by substantial evidence. Although the treatment Movses-yan described is certainly suggestive of an oppressive atmosphere and an oppressive regime, her testimony about things that actually happened to her does not rise to the level of “extreme conduct” required to prevail on a claim of past persecution. See Fatin, 12 F.3d at 1240 n. 10. Accordingly, we must deny Movsesyan’s asylum petition to the extent that it is based on past persecution for political opinion.
B.
However, Movsesyan also claims that she has a well-founded fear of future persecution. To establish a well-founded fear of persecution, an applicant must demonstrate both a subjective fear of persecution and an objectively reasonable fear of persecution. Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.2003). “The subjective prong requires showing that the fear is genuine. Determination of an objectively reasonable possibility requires ascertaining whether a reasonable person in the alien’s circumstances would fear persecution if returned to the country in question.” Id. (citation omitted).
As noted, Movsesyan alleges that the persecution she fears results from her political opinion and the imputed political opinion of her father.1 We have held that an asylum applicant may establish a well-founded fear of future persecution based on a claim of imputed political opinion. See, e.g., Kayembe, 334 F.3d at 234. “At the root of the concept of persecution on account of imputed political opinion is the *900fact that persecution may be on account of a political opinion the applicant actually holds or on account of one the [persecutor] has imputed to him.” Espinosa-Cortez, 607 F.3d at 112 n. 8 (internal quotation marks omitted).
The BIA held that Movsesyan “failed to present sufficiently detailed testimonial or documentary evidence to establish that a reasonable person in her circumstances would fear persecution upon her return to Armenia.” J.A. 28-29. The BIA reached that conclusion because: (1) Movsesyan left Armenia over three years ago; (2) she no longer works with journalists; (3) her family still lives in Armenia; and (4) she has not received any threats since 2005. J.A. 29. The BIA also stated, “Although the respondent’s father was recently the victim of an assassination attempt, we find this too attenuated to establish a present basis for a well-founded fear of persecution.” Id.
Although Movsesyan left Armenia more than three years ago and is currently a psychologist, her father remains in Armenia, he is still an active media figure, and he continues to oppose the government. We see nothing on this record to suggest that Movsesyan’s absence from Armenia or her career change would somehow mitigate the chances of her father’s political opinion being imputed to her if she were to return to Armenia, or that she no longer has reason to fear reprisals. We realize, of course, that “when family members remain in petitioner’s native country without meeting harm, ... the reasonableness of a petitioner’s well-founded fear of future persecution is diminished.” Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005). However, any conclusion that Movsesyan’s family has not suffered harm is simply not supported by the record. Indeed, as we have just noted, her father was reportedly the target of an assassination attempt and he was threatened by the Minister of Communication and Transport, only weeks before Movsesyan’s removal hearing.
We disagree that such evidence is somehow insufficient to establish that an objectively reasonable person in Movsesyan’s circumstances would fear persecution upon being returned home. This record contains both testimony and exhibits that would support a finding that Al Plus and Mesrop Movsesyan were critical of the government. Movsesyan’s father expressed his anti-government political opinion on numerous occasions, including in a published interview. When Movsesyan was attacked, the assailant told her that he was “going to rape [her], and tomorrow he’s going to tell [her] father what a good time he had.” A.R. 178. There is no realistic way to interpret the reference to her father other than that the assailant was threatening an attack on Movsesyan to punish her father for his opposition to the government. Moreover, the record contains testimony that when Movsesyan told the Chairman of the National Commission on Television and Radio that she was Mesrop Movsesyan’s daughter, he threatened her and had her removed from the building. There is also testimony that Mesrop Movsesyan received several threats directed at his daughter.
In addition, there is evidence that Movsesyan was not only the daughter of the owner of Al Plus, she was also an employee of that media outlet. That would mean that it is even more likely that she would be targeted because of real or imputed political opinions. She was reportedly in Parliament with Al Plus during a terrorist attack, which the government did not want Al Plus to broadcast. She also told a government official that he lacked a conscience for denying Al Plus a television frequency.
In addition, this record contains more than Movsesyan’s personal experiences *901and her testimony about threats and violence directed toward her and her father. The abuse of journalists in Armenia is well documented by the United States Department of State in their Country Reports and by several international organizations. Accordingly, the record does not support a conclusion that, assuming her credibility, Movsesyan has not established eligibility for asylum based on a well founded fear of future persecution.
III.
Movsesyan also seeks relief in the form of withholding of removal. To qualify for withholding of removal, an “alien must first establish by a clear probability that his/her life or freedom would be threatened in the country of removal. Clear probability means that it is more likely than not that an alien would be subject to persecution.” Zubeda, 333 F.3d at 469 (citation and internal quotation marks omitted). The clear probability standard is a higher burden of proof than the standard of proof required to establish a well-founded fear of persecution required for asylum. Id.
Here, the BIA denied Movsesyan’s claim for withholding of removal because it found that she could not satisfy the lesser burden of proof required for asylum. Because we are granting Movsesyan’s petition on her asylum claim based upon a well-founded fear of future persecution, we will also grant her petition on her claim for withholding of removal based on future persecution and that claim can now be considered on remand.
IV.
Lastly, Movsesyan seeks relief pursuant to the Convention Against Torture (“CAT”).2 “An applicant for relief on the merits under the Convention Against Torture bears the burden of establishing ‘that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.’” Sevoian v. Ashcroft, 290 F.3d 166, 174-75 (3d Cir.2002) (quoting 8 C.F.R. § 208.16(c)(2)).
The BIA held that Movsesyan’s CAT claim failed because there was insufficient evidence that she would be tortured by the government or with its acquiescence upon her return to Armenia. Although Movses-yan’s petition refers to the CAT, she does not develop any argument to support her claim for relief under the CAT, and we discern nothing in the record that would support a claim for relief under the CAT. Therefore, we will deny Movsesyan’s petition as to the CAT claim.
V.
For the foregoing reasons, we will deny the petition as to Movsesyan’s claim for asylum on the basis of past persecution and her claim for relief under the CAT. However, we will grant the petition as to Movsesyan’s claim for asylum on the basis of a well-founded fear of future persecution and her claim for withholding of removal. The BIA’s order is vacated to the extent it denies relief based upon future persecution, and we will remand to the BIA for further proceedings consistent with this opinion.
. The government argues that we lack jurisdiction to consider the imputed political opinion claim because it was not raised on appeal to the BIA. Although Movsesyan did not raise the issue that her asylum claim should have been considered on the basis of imputed political opinion before the BIA, the BIA considered it silo, sponte. In its opinion, the BIA considered that Movsesyan "was attacked (‘used as a weapon’) against her father, a prominent journalist.” J.A. 28. Additionally, it found that the assassination attempt on her father was "too attenuated to establish a present basis for a well-founded fear of persecution.” J.A. 29.
. Unlike "judicially-crafted doctrines, statutory exhaustion requirements deprive us of jurisdiction over a given case.” Lin v. Attorney Gen. of the U.S., 543 F.3d 114, 120 (3d Cir.2008). Because exhaustion is a statutory requirement for review of a final order of removal, see id., we note that Movsesyan did not raise her CAT claim in her appeal to the BIA. However, Movsesyan has exhausted her CAT claim because the BIA considered it sua sponte. See id. at 124 n. 7 (“[T]he BIA's consideration of an issue is sufficient to provide us with jurisdiction over that issue.”). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480706/ | ON MOTION
ORDER
Upon consideration of Eliyahou Harari et al.’s unopposed motions to lift the stay of proceedings and set the briefing schedule,
It Is Ordered That:
The motions are granted. The stay is lifted. The appellants’ initial 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/8480707/ | ON MOTION
ORDER
Upon consideration of Eliyahou Harari et al.’s unopposed motions to lift the stay of proceedings and set the briefing schedule,
It Is Ordered That:
The motions are granted. The stay is lifted. The appellants’ initial brief is due *716within 40 days from the date of filing of this order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480710/ | SUMMARY ORDER
The district court granted summary judgment to the plaintiffs in these two related cases based on what was then binding Second Circuit precedent. The parties agree that the Supreme Court, in Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 561 U.S. -, 130 S.Ct. 2433, 177 L.Ed.2d 424 (2010), has abrogated the precedent upon which the district court relied. See also Royal & Sun Alliance Ins., PLC v. Ocean World Lines, Inc., 612 *752F.3d 138, 140 (2d Cir.2010). The plaintiffs-appellees have raised further grounds they claim would support the judgment regardless of Regalr-Beloit, but concede that they did not present these grounds below because of the state of the law at the time. The parties therefore have agreed that we should decline to reach these issues so that the district court may have the first opportunity to address them on remand.
The judgment is VACATED and REMANDED for further proceedings. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480711/ | *785SUMMARY ORDER
Defendant-Appellant Josué Otoniel Rubi-Gonzalez appeals from a judgment entered on September 25, 2009 following a jury trial, convicting him of murder-in-aid of racketeering and conspiracy to commit murder-in-aid of racketeering pursuant to 18 U.S.C. § 1959(a)(1) (“VCAR”). Rubi-Gonzalez was sentenced principally to consecutive sentences of life imprisonment for the murder count and ten years’ imprisonment for the conspiracy count. We assume the parties’ familiarity with the facts and procedural history of the case.
Rubi-Gonzalez was a member of a violent, international gang known as La Mara Salvatrucha (“MS-13”). His principal argument on appeal is that the district court’s jury instructions, which directed the jury that the interstate or foreign commerce element could be satisfied by proof of “any effect” or a “minimal effect” on interstate or foreign commerce, constituted reversible error because the jury should have instead been required to find a “substantial nexus” between MS-13’s criminal activities and interstate or foreign commerce.
Because the defendant failed to object to the district court’s jury charge, we review only for plain error. See United States v. Needham, 604 F.3d 673, 678 (2d Cir.2010); Fed.R.Crim.P. 52(b). There is no error in the jury charge, much less plain error, because it is well established that even a de minimis effect on interstate commerce by a racketeering enterprise is sufficient to satisfy the element. See United States v. Davila, 461 F.3d 298, 306 (2d Cir.2006) (“For statutes that contain a jurisdictional element ... evidence of even a de minimis effect on interstate commerce will satisfy the [interstate commerce] element.”); see also United States v. Feliciano, 223 F.3d 102, 118 (2d Cir.2000) (noting that “the VCAR has a jurisdictional element”).
This Court has, in any event, already considered and rejected virtually identical arguments as those advanced by defendant here in Feliciano and United States v. Mejia, 545 F.3d 179 (2d Cir.2008). In fact, while discussing the interstate activities of the very same gang organization in question here, MS-13, the Court in Mejia reiterated that “any other conduct having even a de minimis effect on interstate commerce suffices.” Mejia, 545 F.3d at 203.
We have considered the defendant’s remaining arguments and find them to be without merit. With no grounds upon which to find that the trial court’s jury instruction constituted plain error, we AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480713/ | SUMMARY ORDER
Plaintiff-appellant Judith Gove appeals from a judgment of the District Court granting the motion for summary judgment of defendant-appellee Eli Lilly and Company (“Eli Lilly”) in a claim for personal injury damages allegedly caused by Zyprexa, an antipsychotic medication manufactured by Eli Lilly. Gove, who suffers *818from bipolar disorder, was treated with Zyprexa continuously between September 1998 and the end of 1999, and again between August 2002 and May 2004. In November 2002, Gove was diagnosed with diabetes. Gove asserts that Zyprexa caused her diabetes and that she would not have been prescribed Zyprexa had Eli Lilly properly warned of the drug’s dangers. We assume the parties’ familiarity with the facts, procedural history and issues raised on appeal.
We review orders granting summary judgment de novo, and we will affirm only if the record, viewed in the light most favorable to the nonmoving party, reveals no genuine issue of material fact. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Redd v. Wright, 597 F.3d 532, 535-36 (2d Cir.2010).
In order to establish a claim based on a manufacturer’s failure to warn under Arizona law,1 Gove must demonstrate that Eli Lilly’s inadequate warning regarding the risks associated with Zyprexa was the proximate cause of her injury. Southwest Pet Prods., Inc. v. Koch Indus., Inc., 273 F.Supp.2d 1041, 1062 (D.Ariz.2003) (concluding that summary judgment in defendant’s favor was warranted where plaintiff “failed to demonstrate that any failure to warn was a proximate cause of [the alleged] injury.”). Moreover, Arizona law recognizes the “learned intermediary” exception in failure-to-warn cases: “the manufacturer’s duty to warn is ordinarily satisfied if a proper warning is given to the specialized class of people that may prescribe or administer the product.” Piper v. Bear Med. Sys., Inc., 180 Ariz. 170, 178, 883 P.2d 407, n. 3 (Ariz.Ct.App.1993). Arizona applies a “heeding presumption” in failure-to-warn cases that “reduces” the plaintiffs “burden of proving that the manufacturer’s failure to issue an adequate warning proximately caused the injury at issue” by “shift[ing] the burden of production to the manufacturer.” Golonka v. Gen. Motors Corp., 204 Ariz. 575, 580, 65 P.3d 956 (2003). If the manufacturer meets its burden “by introducing evidence that would permit reasonable minds to conclude that” an adequate warning would not have changed the treatment decision, “the presumption is destroyed” and the plaintiff must produce affirmative evidence that the allegedly inadequate warning proximate caused his or her injury. Id. at 590-91. As a result, where the presumption is destroyed summary judgment is warranted under the learned intermediary doctrine unless the plaintiff can demonstrate “that had a proper warning been given,” the prescribing practitioner would have acted differently — i.e., that the plaintiff “would not have used the product in the manner which resulted in his injury.” Dole Food Co. v. N.C. Foam Indus., 188 Ariz. 298, 305, 935 P.2d 876 (Ariz.Ct.App.1996).
*819After de novo review, we hold, for substantially the reasons stated in the well-reasoned opinion of the District Court, In re: Zyprexa Prods. Liab. Litig., 2009 WL 5062109, at *14-16, that there is no evidence that Gove’s treating practitioners would have altered their decision to prescribe Zyprexa had a different warning been provided by Eli Lilly. Indeed, Nurse Practitioner Tharalson stated explicitly that alternative warnings about Zyprexa would have had no effect on her prescribing habits. Grunfeld Decl. Ex. 12 at 49 (objections of counsel omitted). This evidence satisfied Eli Lilly’s burden of production and destroys any heeding presumption. Because Gove’s practitioners were aware of the risks associated with Zyprexa but would not have made different clinical treatment decisions had alternative warnings been provided, Gove has failed to establish that Eli Lilly’s allegedly inadequate warnings regarding the potential risks associated with Zyprexa were the proximate cause of her diabetic condition.
CONCLUSION
We have considered each of Gove’s arguments on appeal and find them to be without merit. For the reasons stated above, we AFFIRM the judgment of the District Court.
. It is undisputed that Arizona's substantive law and statute of limitations rules govern this action, which was filed in and which arises from events occurring almost exclusively in Arizona and was transferred to the Eastern District of New York pursuant to an order of the Judicial Panel on Multidistrict Litigation. See Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir.1993) (citing Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964)). The District Court concluded that Gove’s claim was time-barred pursuant to Arizona’s two-year statute of limitations for product liability and personal injury actions. In re: Zyprexa Prods. Liab. Litig., Nos. 04-MD-1596, 06-CV-2792, 2009 WL 5062109, at *14 (E.D.N.Y. December 10, 2009). Because we agree with the District Court that Gove fails to establish that Eli Lilly's failure to warn was the proximate cause of her injuries, id., we need not decide whether the District Court erred with respect to the application of Arizona's statute of limitations. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480715/ | SUMMARY ORDER
Plaintiff-appellant Tynesha Belcher appeals from a judgment of the District Court granting the motion for summary judgment of defendant-appellee Eli Lilly and Company (“Eli Lilly”) in a claim for personal injury damages allegedly caused by Zyprexa, an antipsychotic medication manufactured by Eli Lilly. Belcher, who suffers from schizophrenia, was prescribed Zyprexa continuously between November 1998 and 2006. In September 1999, Bel-cher was diagnosed with diabetes. Bel-cher asserts that Zyprexa' caused her diabetes and that she would not have been prescribed Zyprexa had Eli Lilly properly warned of the drug’s dangers. We assume the parties’ familiarity with the facts, procedural history and issues raised on appeal.
We review orders granting summary judgment de novo, and we will affirm only if the record, viewed in the light most favorable to the nonmoving party, reveals no genuine issue of material fact. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Redd v. Wright, 597 F.3d 532, 535-36 (2d Cir.2010).
The District Court concluded that Bel-cher’s claim is time-barred pursuant to California’s statute of limitations.1 We agree.
Under California’s “discovery rule,” the two-year statute of limitations for product liability and personal injury ac*823tions begins to accrue when the plaintiff “discovers, or has reason to discover, the cause of action.” Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797, 27 Cal.Rptr.3d 661, 110 P.3d 914, 919 (2005). In this case, Dr. Silverman of the Fairview Developmental Center testified that he prescribed Zyprexa to Belcher in October 2001, despite knowing about the association between Zyprexa and increased weight gain and blood glucose levels. Inasmuch as Dr. Silverman was also aware of the relationship between weight gain, high blood glucose levels and diabetes in 2001, the statute of limitations began to run at that time. As a result, the District Court correctly concluded that Belcher’s claim against Eli Lilly was foreclosed by California’s statute of limitations when it was filed in February 2006. In re: Zyprexa Prods. Liab. Litig., Nos. 04-MD-1596, 06-CV-2782, 2009 WL 3597447, at *13 (E.D.N.Y. October 16, 2009).
Belcher’s argument on appeal that the District Court erred in failing to permit the statute of limitations to toll pursuant to the commencement of a related class action against Eli Lilly, see American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), is unavailing. As the District Court correctly noted, the statute of limitations for Belcher’s claim expired in October 2003, prior to the filing of the class action claim, Ortiz v. Eli Lily & Company, No. 04-CV-1587 (E.D.N.Y.), in April 2004. In re: Zyprexa Prods. Liab. Litig., 2009 WL 3597447, at *13-14. As a result, the commencement of the class action in Ortiz did not serve to toll Belcher’s claim.
Accordingly, after de novo review, we hold, for substantially the reasons stated in the well-reasoned opinion of the District Court, id., that Belcher’s claim is time-barred pursuant to California’s statute of limitations. The District Court did not err, therefore, in granting Eli Lilly’s motion for summary judgment.
CONCLUSION
We have considered each of Belcher’s arguments on appeal and find them to be without merit. For the reasons stated above, we AFFIRM the judgment of the District Court.
. It is undisputed that California’s substantive law and statute of limitations rules govern this action, which was filed in and which arises from events occurring in California and was transferred to the Eastern District of New York pursuant to an order of the Judicial Panel on Multidistrict Litigation. See Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir.1993) (citing Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964)). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480716/ | SUMMARY ORDER
Plaintiff-appellant Milton Neal appeals from a judgment of the District Court granting the motion for summary judgment of defendant-appellee Eli Lilly and Company (“Eli Lilly”) in a claim for personal injury damages allegedly caused by Zyprexa, an antipsychotic medication manufactured by Eli Lilly. Neal, who suffers from chronic paranoid schizophrenia, was prescribed Zyprexa consistently between 2003 and 2006. In December 2005, Neal was diagnosed with Type II diabetes and diabetic ketoacidosis. Neal asserts that Zyprexa caused his diabetes and that he would not have been prescribed Zyprexa had Eh Lilly properly warned of the drug’s dangers. We assume the parties’ familiarity with the facts, procedural history and issues raised on appeal.
We review orders granting summary judgment de novo, and we will affirm only if the record, viewed in the light most favorable to the nonmoving party, reveals no genuine issue of material fact. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Redd v. Wright, 597 F.3d 532, 535-36 (2d Cir.2010).
In order to establish a claim based on a manufacturer’s failure to warn under California law,1 Neal must demonstrate that, among other things, the “inadequacy of [Eli Lilly’s] warnings was the proximate cause of his injury.” Plummer v. Lederle Labs., Div. of Am. Cyanamid Co., 819 F.2d 349, 358 (2d Cir.1987) (applying California state law); see also Carlin v. Superior Court of Sutter Cty., 13 Cal.4th 1104, 56 Cal.Rptr.2d 162, 920 P.2d 1347, 1353-54 (1996). Moreover, California law recognizes the “learned intermediary” exception in failure-to-warn cases: “if adequate warning of potential dangers of a drug has *825been given to doctors, there is no duty by the drug manufacturer to insure that the warning reaches the doctor’s patient for whom the drug is prescribed.” Carlin, 56 Cal.Rptr.2d 162, 920 P.2d at 1354. As a result, summary judgment is warranted under the learned intermediary doctrine unless the plaintiff can demonstrate that the prescribing physician “would have acted differently had ... an adequate warning” been provided. Motus v. Pfizer, Inc., 196 F.Supp.2d 984, 999 (C.D.Cal.2001).
After de novo review, we hold, for substantially the reasons stated in the well-reasoned opinion of the District Court, In re: Zyprexa Prods. Liab. Litig., Nos. 04-MD-1596, 06-CV-2782, 2009 WL 1852001, at *14 (E.D.N.Y. June 22, 2009), that “there is no evidence that any of [Neal’s] treating psychiatrists would have altered their decision to prescribe Zyprexa to [him] had a different warning been provided by [Eli] Lilly.” Neal has therefore failed to establish that Eli Lilly’s allegedly inadequate warnings regarding the potential risks associated with Zyprexa were the proximate cause of his diabetic condition.
CONCLUSION
We have considered each of Neal’s arguments on appeal and find them to be without merit. For the reasons stated above, we AFFIRM the judgment of the District Court.
. It is undisputed that California’s substantive law and statute of limitations rules govern this action, which was filed in and which arises from events occurring in California and was transferred to the Eastern District of New York pursuant to an order of the Judicial Panel on Multidistrict Litigation. See Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir.1993) (citing Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964)). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480717/ | SUMMARY ORDER
Plaintiff-appellant Ernestine Misouria appeals from a judgment of the District Court granting the motion for summary judgment of defendant-appellee Eli Lilly and Company (“Eli Lilly”) in a claim for personal injury damages allegedly caused by Zyprexa, an antipsychotic medication manufactured by Eli Lilly. Misouria, who suffers from schizophrenia, was prescribed Zyprexa consistently between 1998 and 2005. In May 2005, Misouria was diagnosed with diabetes. Misouria asserts that Zyprexa caused her diabetes and that she would not have been prescribed Zy-prexa had Eli Lilly properly warned of the drug’s dangers. We assume the parties’ familiarity with the facts, procedural history and issues raised on appeal.
We review orders granting summary judgment de novo, and we will affirm only if the record, viewed in the light most favorable to the nonmoving party, reveals no genuine issue of material fact. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Redd v. Wright, 597 F.3d 532, 535-36 (2d Cir.2010).
In order to establish a claim based on a manufacturer’s failure to warn under California law,1 Misouria must demonstrate that, among other things, the “inadequacy of [Eli Lilly’s] warnings was the proximate cause of [her] injury.” Plummer v. Lederle Labs., Div. of Am. Cyanamid Co., 819 F.2d 349, 358 (2d Cir.1987) (applying California state law); see also Carlin v. Superior Court of Sutter Cty., 13 Cal.4th 1104, 56 Cal.Rptr.2d 162, 920 P.2d 1347, 1353-54 (1996). Moreover, California, law recognizes the “learned intermediary” exception in failure-to-warn cases: “if adequate warning of potential dangers of a drug has been given to doctors, there is no duty by the drug manufacturer to insure that the warning reaches the doctor’s patient for whom the drug is prescribed.” Carlin, 56 Cal.Rptr.2d 162, 920 P.2d at 1354. As a result, summary judgment is warranted under the learned intermediary doctrine unless the plaintiff can demonstrate that the prescribing physician “would have acted differently had ... an adequate warn*827ing” been provided. Motus v. Pfizer, Inc., 196 F.Supp.2d 984, 999 (C.D.Cal.2001).
After de novo review, we hold, substantially for the reasons stated in the well-reasoned opinion of the District Court, In re: Zyprexa Prods. Liab. Litig., Nos. 04-MD-1596, 06-CV-2782, 2009 WL 1851999, at *14 (E.D.N.Y. June 24, 2009), that there is “no evidence” that Misouria’s treating psychiatrists would have altered their decision to prescribe Zyprexa had a different warning been provided by Eli Lilly. Indeed, with respect to Dr. Muñoz, who prescribed Zyprexa to Misouria continuously between 2003 and 2005, the record reveals that not only was her prescribing physician aware of the link between Zyprexa and diabetes, but that notwithstanding that knowledge he continues to prescribe Zy-prexa to patients in similar positions to Misouria today. Id. at *12. Misouria has therefore failed to establish that Eli Lilly’s allegedly inadequate warnings regarding the risks associated with Zyprexa were the proximate cause of her diabetic condition.
CONCLUSION
We have considered each of Misouria’s arguments on appeal and find them to be without merit. For the reasons stated above, we AFFIRM the judgment of the District Court.
. It is undisputed that California's substantive law and statute of limitations rules govern this action, which was filed in and which arises from events occurring in California and was transferred to the Eastern District of New York pursuant to an order of the Judicial Panel on Multidistrict Litigation. See Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir.1993) (citing Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964)). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480719/ | SUMMARY ORDER
Plaintiffs-Appellants Wei-Jen Huang and Mee Wah Chan (“plaintiffs”), proceeding pro se, appeal from the August 4, 2009 judgment of the United States District Court for the Eastern District of New York dismissing their complaint for lack of subject-matter jurisdiction. Huang and Chan have also moved in this Court to add additional defendants. We assume the parties’ familiarity with the underlying facts and the procedural history of this action.
We review de novo a district court decision dismissing a complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.2006). Dismissal of a case for lack of subject matter jurisdiction under Rule 12(b)(1) is proper “when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). Following de novo review, we affirm the judgment of the District Court for substantially the same reasons stated by the District Court in its thorough memorandum and order of July 31, 2009, Docket Entry No. 41 (E.D.N.Y. July 31, 2009). Further, we deny plaintiffs’ motion to add additional defendants, as new defendants may not be named on appeal and the complaint contained no allegations of unlawful conduct as to the putative additional defendants.
CONCLUSION
We have considered all of plaintiffs’ arguments and find them to be without merit. Accordingly, the judgment of the District Court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480722/ | GARTH, Circuit Judge,
dissenting:
The majority, in holding that we should grant Movsesyan’s petition, has held that Movsesyan has not suffered past persecution. It has done so despite the BIA’s determination as reflected in the record, which reveals that (1) Movsesyan left Armenia over three years ago, (2) she no longer works with journalists, (3) her family still lives in Armenia, and (4) she has not received any threats since 2005.
I agree that Movsesyan has not been the victim of past persecution, and in light of that unanimous determination by our panel and the conclusions of the BIA, I cannot agree that Movsesyan meets the criteria for fear of future persecution.1 That being so, I respectfully dissent.
. To establish that a fear of future persecution is "well-founded,” an asylum applicant must show both that her "fear is genuine” and that "a reasonable person in [her] circumstances would fear persecution if returned to the country in question.” Espinosa-Cortez v. Att’y Gen., 607 F.3d 101, 108 (3d Cir.2010) (citations and internal quotation marks omitted). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480723/ | OPINION
SLOVITER, Circuit Judge.
St. George Warehouse, Inc., (“St. George”) has petitioned for review of the Second Supplemental Decision and Order of the National Labor Relations Board (“the Board”) dated November 17, 2008, in which the Board affirmed an award of backpay to two claimants in the amount of $41,097.69, together with accrued interest. The Board’s order was entered by two members of a three-member panel to which the Board delegated its powers in December 2007 under section 3(b) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 153(b). The Board had only two members when it entered the order. The Board has cross-applied for enforcement of the order.
Because the issue of the Board’s authority to act with only two members was before the Supreme Court, this court held the decision pending the Supreme Court’s decision on the same issue. In New Process Steel, L.P. v. NLRB, — U.S. -, 130 S.Ct. 2635, 2644-45, 177 L.Ed.2d 162 (2010), the Supreme Court held that section 3(b) of the NLRA “requires that a delegee group maintain a membership of three in order to exercise the delegated authority of the Board.” At this court’s request, the parties submitted supplemental briefing as to the effect of New Process Steel on the issues in this case. The parties agree that the case should be remanded to the Board in light of that decision. In addition, the Board has asked the court to expedite the issuance of its mandate. See Fed. R.App. P. 41(b) (“The court may shorten or extend the time [for issuance of the mandate].”). In its supplemental brief, St. George did not oppose the Board’s request.
Under New Process Steel, the two-member panel of the Board did not have the authority to enter a decision and order in this’ case. Accordingly, we deny as moot the Board’s cross-application for enforcement of the November 17, 2008 order, vacate the Board’s order, and remand the case to the Board for further proceedings.1 The mandate shall issue forthwith.
. The Board is now operating with five sitting members. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480724/ | OPINION
BARRY, Circuit Judge.
Terrance Stradford argues that the District Court erred in denying his motion to dismiss the indictment on Speedy Trial Act grounds. We will affirm.
BACKGROUND1
Stradford, a dentist and businessman, along with two co-defendants, defrauded multiple lending agencies in a scheme in which he offered the same parcel of real property as collateral for various loans without informing each subsequent lender of the true nature of the existing liens on that parcel. He also engaged in other financial fraud.
A complaint was filed against Stradford on December 28, 2005. He was arrested in North Carolina on January 11, 2006, and was brought before a magistrate judge in the District of New Jersey for his initial appearance on February 8, 2006. On February 9, 2006, Assistant U.S. Attorney Joshua Drew sent a letter to Stradford’s then-attorney, Thomas R. Ashley, explaining that the government planned to present its case to a grand jury the following week “unless ... your client consents to *925excluding time for purposes of calculations under the Speedy Trial Act, 18 U.S.C. § 3161, to allow for, among other things, plea discussions and cooperation discussions.” (App. at 3.)
On February 14, 2006, the Magistrate Judge granted a forty-five day continuance. The order noted that the parties sought the continuance to conduct plea discussions, but it mistakenly referred to the defendant not as Terrance D. Strad-ford — as the case caption indicated was the defendant’s name — but rather, as “Christopher Snow.” (Id. at 4a.) The Magistrate Judge ordered that “the period from and including February 17, 2006 through and including April 3, 2006 shall be excludable in computing time under the Speedy Trial Act of 1974.” (Id. at 4b.)
On April 5, 2006, a federal grand jury returned a twenty-three count indictment against Stradford charging wire fraud and money laundering. On June 5, 2006, the District Judge to whom the case was assigned granted Stradford’s request for a continuance — made through his counsel— to allow “counsel ... reasonable additional time to review discovery, discuss plea negotiations, and file motions.” (Id. at 5a.) The District Judge ordered that the case be continued from June 2 through August 1, explaining that the time from June 5, 2006 “through August 1, 2006, shall be excluded in computing time under the Speedy Trial Act.” (Id. at 5b.) She later granted three other continuance motions, none of which is at issue in this appeal.
After the grand jury returned a twenty-four count superceding indictment, trial was set to begin on September 10, 2007. Before it began, however, Stradford filed a motion to dismiss the indictment due to violations of the Speedy Trial Act, which the District Judge denied after an eviden-tiary hearing. Stradford was ultimately found guilty on all twenty-four counts on September 26, and his post-trial motions were denied. On July 21, 2008, he was sentenced to 120 months’ incarceration on each of counts two through twenty-three and 60 months’ incarceration on each of counts one and twenty-four, all to be served concurrently. (Id. at 14b.) Strad-ford timely appealed.
DISCUSSION2
Our review of a district court’s order denying the motion to dismiss the indictment as violative of the Speedy Trial Act implicates three standards of review. First, we review de novo the court’s interpretation of the Act; second, we review the court’s factual findings for clear error; and lastly, we review the decision granting a continuance for abuse of discretion. United States v. Lattany, 982 F.2d 866, 870 (3d Cir.1992); United States v. Rivera Constr. Co., 863 F.2d 293, 295 (3d Cir.1988).
The Pre-Indictment February 14, 2006 Continuance Order
Under the Speedy Trial Act, “[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested....” 18 U.S.C. § 3161(b). In the event that the defendant must be transferred from another district, the period for filing an indictment may be extended by up to ten days. Id. § 3161(h)(1)(F). Stradford was arrested in North Carolina on January 11, 2006, and he was indicted on April 5, 2006 — eighty-four days later. In its February 14 continuance order, the Magistrate Judge found that February 17 through *926April 3 “shall be excludable in computing time under the Speedy Trial Act.” (App. at 4b.)
The Speedy Trial Act provides that certain “periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence.” 18 U.S.C. § 3161(h). Included among these enumerated exceptions is “[a]ny period of delay resulting from a continuance ... if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” Id. § 3161(h)(7)(A).3 In undertaking this balancing, the court must set forth “in the record of the case, either orally or in writing,” the reasons in support of its conclusion. Id. Such continuances may be granted “at the request of the defendant or his counsel or at the request of the attorney for the Government,” or even by the “judge on his own motion.” 18 U.S.C. § 3161(h)(7)(A).
Stradford argues that the February 14 pre-indictment continuance order is invalid because it contains inaccurate statements resulting from a lack of independent inquiry by the Magistrate Judge. The order states that the motion for a continuance “c[a]me before the Court on the joint application of ... [the] United States Attorney for the District of New Jersey (Joshua Drew, Assistant U.S. Attorney, appearing), and defendant Christopher Snow (Thomas P. Ashley, Esq., appearing) ... to allow the parties to conduct plea negotiations and attempt to finalize a plea agreement.” (App. at 4a.) It also states:
IT IS THE FINDING OF THIS COURT that this action should be continued for the following reasons:
(1) Plea negotiations are currently in progress, and both the United States and the defendant desire additional time .to negotiate a plea agreement.
(2) [T]he ends of justice served by granting the continuance outweigh the best interest of the public and the defendant in a speedy trial.
(Id. at 4a-4b.) The reference to “Christopher Snow” is, obviously, a careless error. Moreover, the negotiations were not — as the order indicates — “currently in progress” at the time the order was executed. (Id. at 4b, 13:93.) Following the July 9, 2007 evidentiary hearing on Stradford’s motion to dismiss, the District Judge found that Stradford’s attorney, Thomas P. Ashley, requested a continuance on his client’s behalf, the factual errors contained in the order did not undermine its validity, and the substance of the order comported with the dictates of the Speedy Trial Act.
First, as Stradford concedes, Ashley did not need his permission to request a continuance order, particularly one, such as this,, that is not open-ended. See New York v. Hill, 528 U.S. 110, 115, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000) (“[S]cheduling matters are plainly among those for which agreement by counsel generally controls.”). The order may be granted “at the request of the defendant or his counsel.” 18 U.S.C. § 3161(h)(7)(A) (emphasis added). Ashley testified that he was not unfamiliar with his client at the time the continuance was sought: for the previous nine months, he had been representing Strad-ford in a related civil, matter. After Ashley learned of the criminal investigation *927into Stradford’s business dealings, he discussed it with Stradford, who maintained his innocence. On February 9, 2006, the prosecutor notified Ashley that he intended to present the case against Stradford to a grand jury the following week “unless you inform me that your client consents to excluding time for purposes of calculations under the Speedy Trial Act ..., to allow for, among other things, plea discussions and cooperation discussions.” (App. at 3.) Faced with this letter, Ashley determined that it was in his client’s best interest to agree to a continuance because “we were in the process of negotiating a bail package, No. 1; and, No. 2 ... I had wanted to get a chance not only to talk with Dr. Stradford but to talk to the government with respect to what the nature of their case was.” (Id. at 13:72.) And, as the District Judge noted, Ashley testified that plea negotiations were “in the back of his mind.” (Id. at 13:115). Accordingly, Ashley agreed to the continuance without first consulting Stradford, a decision that even Stradford’s new attorney later endorsed. (Id. at 13:109 (“[Ashley] was doing what was in the best interest of his client.”).)
Second, the two factual inaccuracies do not invalidate the continuance order.4 At the time the order was issued, plea negotiations were not, as the order indicates, “currently in progress.” (Id. at 4a.) It is clear from Ashley’s testimony, however, that he wanted to better understand the government’s case so that, armed with that information, he and Stradford could discuss how best to proceed before an indictment was returned. (Id. at 13:101-02.) Stradford may have been opposed to a plea deal, but Ashley — whom Stradford described as “an excellent attorney” (Id. at 13:55) — knew that this could change once Stradford had a better understanding of the prosecution’s case. (Id. at 13:72-73.) Ashley also knew that, as trial preparations progressed, plea discussions might be explored, and, as it turns out, they were. (Id. at 13:94.)
Finally, the order complies with the procedural requirement that the court “set[ ] forth, in the record of the case, either orally or in writing, its reasons” for granting the “ends of justice” continuance. 18 U.S.C. § 3161(h)(7)(A). Faced with a request for a continuance from both parties, the Magistrate Judge did just that.
The June 5, 2006 Continuance Order
Stradford briefly attacks the validity of the June 5, 2006 pre-indictment continuance order. The District Judge granted a continuance for the following reasons:
1. The defendant, through his counsel, has requested additional time so that counsel will have reasonable additional time to review discovery, discuss plea negotiations, and file motions.
2. The grant of a continuance will ensure the defendant continuity of counsel in his representation.
3. The grant of a continuance will likely conserve judicial resources.
4. [T]he ends of justice served by granting the continuance outweigh the best interests of the public and the defendant in a speedy trial.
(App. at 5a-b.) The District Judge then ordered that the time from June 5 through August 1, 2006 be excluded when computing the time for Speedy Trial Act purposes, and set forth her reasons for granting the “ends of justice” continuance, reasons it confirmed in its extensive oral opinion denying the motion to dismiss the indictment. Indeed, Ashley testified at the hearing on the motion to dismiss that *928he would not have been able to review the discovery materials, discuss potential plea negotiations, file the motions that he may have deemed necessary, and effectively represent Stradford without the continuance order. (See App. at 13:79-80, 99.) The District Judge found that the ends of justice would be served by granting the continuance, and did not abuse her discretion in so doing.
CONCLUSION
We will affirm the judgment of the District Court.
. Because of the limited nature of the appeal and the parties’ familiarity with the facts, we present in summary fashion the conduct that set in motion the criminal proceeding itself.
. The District Court’s jurisdiction was based on 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.
. Prior to amendment in 2008, the "ends of justice" continuance was formerly codified at subsection 8.
. The. careless reference to "Christopher Snow” in the order does not impact the validity of the order, and needs no further discussion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480725/ | *930OPINION
PER CURIAM.
Petitioner Eli Susana, a citizen of Indonesia and a Christian of Chinese ethnicity, seeks review of a final order of removal. We will deny her petition for review.
I.
Susana entered the United States as a nonimmigrant visitor in December 2000, and overstayed the time permitted by her B-2 visa. Fearing a return to Indonesia, Susana filed an asylum application in April 2001. Therein, she claimed that she suffered past persecution, and that she would be persecuted if removed, based on her Chinese ethnicity. In the accompanying affidavit, Susana described violent acts committed by native Indonesians against herself, her family, and ethnic Chinese generally. She also discussed the May 1998 riots 1 though she did not indicate that she was personally attacked during that time. In June 2004, Susana filed an amended asylum application claiming that, in addition to her ethnicity, she had suffered past persecution on account of her Christian beliefs. The amended asylum application was accompanied by a new affidavit.
At a hearing before an immigration judge (“IJ”), Susana testified on cross-examination2 regarding two specific incidents of alleged persecution in December 1999. As to the first, Susana testified that she was assaulted by native Indonesians, who took her VCD player, purse, Bible, and jewelry. In addition, she was pushed to the ground, stabbed in the leg with a knife, and slapped. As to the second incident, Susana testified that while she was out with her sister on Christmas Eve, native Indonesians “vandalized my car and left a note that said that ethnic Chinese and Christians must get out from the country.” (AR 145.) Susana testified that she neglected to mention the latter incident, or any information about religious persecution, in her original asylum application because a woman name “Liana” gave her poor advice.3
The IJ found Susana’s testimony that she was a Christian in Indonesia to be incredible. And upon finding that her asylum application contained “statements which are deliberately fabricated” (AR 107), the IJ determined that Susana had filed a frivolous application. The IJ stated that “[ejven if one were to believe that the respondent was a Christian and ... that the incidents described ... actually occurred, the Court would find that those incidents] do not rise to the level of persecution.” (AR 108.) The IJ found that, at most, Susana “perhaps did experience some discrimination on account of her ethnicity, Chinese, in Indonesia.” (AR 109.) Furthermore, the IJ interpreted our decision in Lie v. Ashcroft, 396 F.3d 530 (3d Cir.2005), to mean that “there is no pattern or practice of persecution of ethnic Chinese Indonesians in Indonesia.” (AR 108.)
*931The Board of Immigration Appeals (“BIA”) adopted and affirmed the IJ’s decision and dismissed Susana’s appeal. Susana filed a petition for review, and we granted the Government’s unopposed motion to remand proceedings to the BIA for the reasons given therein: because “[t]he Immigration Judge and the Board did not clearly indicate whether their pattern or practice determinations were based on the evidence on record in this case or merely on this Court’s decision in Lie so that the BIA could “clarify its position on Susana’s individualized risk [of persecution] and its scope of review”; and because “the Board did not explicitly address the Immigration Judge’s determination that Susana filed a frivolous asylum application.” (AR 28-29.) On remand, the BIA sustained Susana’s appeal of the IJ’s frivolousness determination, but otherwise reaffirmed its prior decision with little elaboration.4 This petition for review followed.5
II.
Susana essentially claims that the IJ and • BIA erred in determining that she failed to demonstrate a pattern/practice of persecution of ethnic Chinese Christians in Indonesia.6 However, Susana fails to reference evidence in the record to support her contention and, despite arguing that the IJ “overlook[ed] critical evidence” in her case (Pet. Br. - at 9), fails to specify what evidence was presented but ignored. Instead, Susana merely states that “[t]he Court in Lolong v. Gonzales, [400 F.3d 1215 (9th Cir.2005),] recognized that Chinese Christian women in Indonesia were a disfavored group in Indonesia [sic],” and that “[i]n the case of Sael v. Ashcroft, [386 F.3d. 922 (9th Cir.2004),] the court found that a showing by the applicant that he had been subjected to various incidents of discrimination, harassments and threats was sufficient to prove a well-founded fear of future persecution.” (Pet. Br. at 11.) That is all.
We first note that, well before briefing in this case commenced, the Lolong decision Susana cites was vacated, reheard by the en banc Ninth Circuit, and not adopted in the subsequent decision. See Lolong v. Gonzales, 484 F.3d 1173 (9th Cir.2007) (en banc). Second, with respect to Sael, we have stated that we disagree with its use of “a lower standard for individualized fear absent a ‘pattern or practice’ of persecution and, similarly, we reject the establishment of a ‘disfavored group’ category.” Lie, 396 F.3d at 538, n. 4. With those observations in mind, we conclude that Susana has failed to demonstrate any errors below by the IJ or BIA in their pattern/practice determinations.
*932Accordingly, we will deny the petition for review.7
. As we have noted previously, "[i]n May 1998, there were serious and widespread attacks on Chinese-owned businesses and homes by Muslim Indonesians, which led to the deaths of over one thousand people.” Lie v. Ashcroft, 396 F.3d 530, 533 (3d Cir.2005) (quotations omitted).
. Her attorney waived direct examination. (AR 144.)
.Liana is apparently a non-attorney asylum application preparer. We have noted that an IJ in another case "took administrative notice that an individual name Liana was under investigation by Philadelphia immigration authorities for filing large numbers of applications and failing to follow through on many of them....” Nio v. Att’y Gen., 257 Fed.Appx. 484, 486 (3d Cir.2007) (nonprecedential opinion).
. The BIA was silent, though, as to its earlier determination that the IJ's adverse credibility finding was not clearly erroneous. Ultimately, this apparent oversight has no bearing on the outcome of this case.
. A final order of removal was entered contemporaneous with the BIA's decision on December 2, 2008. See Yusupov v. Att’y Gen., 518 F.3d 185, 195-96 (3d Cir.2008). We have jurisdiction to review the order under 8 U.S.C. § 1252(a)(1).
. We deem waived any challenge to the denial of Susana’s claims for withholding of removal and relief under the Convention Against Torture, as well as any challenge to the BIA’s determination regarding past persecution. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir.2004); Pennsylvania Dep't of Pub. Welfare v. U.S. Dep't of Health and Human Servs., 101 F.3d 939, 945 (3d Cir.1996) (arguments mentioned in passing, but not squarely argued, will be deemed waived). And we agree with the Government that Susana’s "individualized risk of harm on account of membership in a particular social group” argument has not been properly exhausted. See Hoxha v. Holder, 559 F.3d 157, 159 (3d Cir.2009) (alien must "raise or exhaust his or her remedies as to each claim or ground for relief [before the BIA] if he or she is to preserve the right of judicial review of that claim.”) (citation omitted).
. In her briefs conclusion section, Susana "reiterates her previous motion to stay removal pending the final resolution of the instant petition for review.” (Pet. Br. at 12.) We denied Susana’s stay motion on October 25, 2007, see CA No. 07-3102, primarily because she failed to demonstrate a likelihood of success on the merits of her petition for review. Since we will deny Susana's current petition, to the extent she is attempting to renew her stay motion the request is denied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480726/ | OPINION
PER CURIAM.
Merardo Buquez petitions for review of an order reinstating a prior order of deportation. For the reasons discussed below, we will deny the petition for review.
Buquez is a native and citizen of Peru. He came to the United States in 1993 without inspection and was placed in deportation proceedings in 1995. In September 1996, an Immigration Judge (“IJ”) granted Buquez’s application for voluntary departure until July 23, 1997, with an alternate order of deportation to Peru. Bu-quez had applied for political asylum and *933withholding of removal, and the IJ denied these applications for lack of prosecution. According to Buquez, he agreed to withdraw the applications in exchange for an extended period of time before he was required to depart. The record also reflects that Buquez believed his asylum claim had weakened since he left Peru.
On July 17, 1997, Buquez, through counsel, wrote a letter to the Immigration and Naturalization Service (“INS”) and requested a three-month extension of time to depart the United States. Buquez asserted that the political climate in Peru had changed and that, as a result of these exceptional circumstances, he was making plans to travel to another country to resettle. Buquez did not receive a response to his request, and he departed the United States on his own on September 20, 1997, after his voluntary departure date had expired. Not long thereafter, on November 21, 1997, Buquez reentered the United States without inspection.
In 2008, Buquez, through counsel, filed a motion to reopen his immigration proceedings, apparently to seek an employment-based adjustment of status. Contrary to his July 1997 letter to the INS, Buquez stated in an affidavit that he remained in the United States beyond his voluntary departure date because he had a severe eye infection and that he returned to Peru as soon as he had completed his medical treatment. Buquez stated that he had wanted to stay in Peru, but his daughter had suffered a head injury and required medical treatment available in the United States. Buquez’s motion to reopen was denied.1 On February 5, 2009, the Department of Homeland Security issued an order reinstating Buquez’s prior order of deportation. The order noted that Buquez had departed the United States voluntarily pursuant to an order of deportation and had illegally reentered the country. This petition for review followed.
Buquez contends that the application of the reinstatement statute, 8 U.S.C. § 1231(a)(5), is impermissibly retroactive because he was afforded voluntary departure before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). Bu-quez argues that a grant of voluntary departure before IIRIRA differed in its benefits and consequences from a grant made after IIRIRA was enacted and that reinstatement unfairly prejudices him because he reentered the country with the understanding that he might be eligible for discretionary relief.2
The Government correctly asserts that Avila-Macias v. Ashcroft, 328 F.3d 108 (3d Cir.2003), forecloses Buquez’s retroactivity argument. We held in Avila-Maeias that applying IIRIRA’s reinstatement provi*934sions to an alien who was deported before IIRIRA’s April 1, 1997, effective date, but who reentered illegally after that date, does not have an impermissibly retroactive effect. Id. at 114. We explained that the consequences the alien faced at the time he illegally reentered were the same consequences he faced when his deportation order was reinstated. Id. Here, Buquez was granted voluntary departure, with an alternate order of deportation, before IIR-IRA became effective and he illegally reentered after IIRIRA’s effective date. Like in Avilor-Macias, the consequences Buquez faced when he reentered were the same as when his deportation order was reinstated.
Buquez argues that Avilar-Macias is distinguishable because he departed pursuant to a voluntary departure order and not a deportation order. The record does not support this argument. The IJ’s order provides that Buquez was granted voluntary departure until July 23, 1997 “with an alternate order of deportation to Peru.” A.R. at 2. Under the regulations in effect at that time, an order of deportation was final and subject to execution upon the date a grant of voluntary departure expired. 8 C.F.R. § 243.3(a)(1) (1997) (repealed). An alien who voluntarily departed while an order of deportation was outstanding was considered to have been deported. 8 C.F.R. §' 243.5 (1997) (repealed). An alien who departed before the expiration of the voluntary departure time granted in connection with an alternate order of deportation was not considered to have been deported. Id. Because Buquez voluntarily departed on September 20, 1997, after the voluntary departure period expired, he was considered to have been deported.
Buquez further argues that he did not depart under an order of deportation because his belated departure was due to exceptional circumstances. In accordance with now-repealed 8 U.S.C. § 1252b(e)(2)(A), the IJ notified Buquez:
You have been granted voluntary departure .... Remaining in the United States beyond the authorized date other than because of exceptional circumstances beyond your control will result in your being ineligible for certain forms of relief ... for five (5) years from the date of scheduled departure or the date of unlawful reentry, respectively.
A.R. at 3. “Exceptional circumstances” were defined under the former statute as circumstances beyond the control of the alien “such as serious illness of the alien or death of an immediate relative of the alien, but not including less compelling circumstances.” 8 U.S.C. § 1252b(f) (repealed).
As noted above, shortly before Buquez’s voluntary departure date, he requested an extension of time to leave the United States due to the exceptional circumstance that the political climate in Peru had changed and he was making plans to travel to another country. Buquez, however, concedes in his brief that such requests were rarely granted and that he did not receive a response to his request. Moreover, Buquez no longer contends that he departed after his voluntary departure date due to a changed political climate in Peru. He now contends that he was unable to timely depart because he had a serious eye infection. Buquez did not assert that an eye infection was the reason for his belated departure until 2008, when he sought to reopen his proceedings. The record does not include medical records or any other objective evidence establishing that Buquez had an eye infection requiring a delayed departure. Buquez has not shown that his belated departure was due to exceptional circumstances or that he did not depart under an order of deportation.
Buquez also contends that his due process rights were violated because he was not afforded a hearing before an Immigra*935tion Judge. In Morales-Izquierdo v. Gonzales, 486 F.3d 484, 495-96 (9th Cir.2007) (en banc), the court of appeals rejected a due process challenge to 8 C.F.R. § 241.8, the regulation allowing an immigration officer, as opposed to an Immigration Judge, to order reinstatement. Although not deciding the question in all cases, the court noted that the alien did not contest any of the statutory predicates for reinstatement, such as the fact that he was subject to a prior removal order. Id. The court further stated that the fact that the alien may have departed voluntarily was of no consequence because any mode of departure while subject to an order of removal constitutes a removal for reinstatement purposes. Id. at 496.3
In order to reinstate a prior order of removal, the statute requires that an alien has reentered the United States illegally and that he reentered after having been removed or having departed voluntarily under an order of removal. 8 U.S.C. § 1231(a)(5). Unlike in Morales-Izquier-do, Buquez challenges a predicate fact to reinstatement — that he departed under an order of deportation. As discussed above, however, the administrative record reflects that he departed under an order of deportation. Buquez thus suffered no prejudice by not having access to an Immigration Judge, as he does not have a colorable argument that he did not depart under an order of deportation.
Accordingly, we will deny the petition for review.4
. The administrative record reflects that Bu-quez filed a motion to reopen, but the record does not contain the motion or related decision. See A.R. at 15. An affidavit prepared by Buquez in 2008 is included in the record, but the record does not contain any documents related to his adjustment of status application. See A.R. at 12-13. It does not appear that Buquez appealed the denial of the motion to reopen to the Board of Immigration Appeals.
. Relying on Debeato v. Attorney General, 505 F.3d 231 (3d Cir.2007), the Government argues that we lack jurisdiction to review the reinstatement order because Buquez does not raise a legal or constitutional error in the original removal proceedings. We held in Debeato that we have jurisdiction "over legal and constitutional challenges to final orders of removal, including those final orders that the Attorney General has reinstated!.]” Id. at 235. Although Debeato involved a legal challenge to an original removal order, Debeato does not preclude other legal and constitutional claims. See also Dinnall v. Gonzales, 421 F.3d 247, 251 n. 6 (3d Cir.2005) (noting Court's jurisdiction to review petition challenging reinstatement statute on retroactivity grounds).
. Other courts of appeals also have upheld the constitutionality of 8 C.F.R. § 241.8 where the alien admittedly satisfied the statutory predicates for reinstatement. See, e.g., Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir.2008).
. The Government's motion for summary denial of the petition for review, which was referred to us for disposition, is denied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480727/ | OPINION
SLOVITER, Circuit Judge.
The District Court dismissed Christopher and Stephanie Kemezis’ Second Amended Complaint (the “Complaint”) with prejudice for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). The Kemezises appeal only dismissal of their claim under the catchall provision of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 Pa. Cons.Stat. § 201-2(xxi) (defining “unfair or deceptive acts or practices” in part as “[e]ngaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding”).
I.
Background
The Kemezises took out a loan secured by a mortgage held by Fremont Investment & Loan Co. on a property they purchased with the proceeds of the loan (the “Property”). James Matthews, Jr. brokered the transaction on behalf of Keegan Mortgage Corp. After a few years, the Kemezises decided to sell the Property in order to purchase a new one.
In the Complaint, the Kemezises allege that the day before that sale was to be closed, they discovered for the first time that their mortgage documents contained a penalty for prepayment. They allege that this prepayment penalty must have been “buried” in the loan and mortgage documents or otherwise concealed from them. App. at 18a ¶ 28. According to the Complaint, the Kemezises then contacted Matthews, who allegedly “stated that he did not know about the prepayment penalty,” App. at 18a ¶ 31, and that “the prepayment penalty must have been placed in the loan when he left the room during the closing,” App. at 18a ¶ 32. In the end, however, the Kemezises paid the prepayment penalty “due to the fact they did not want to lose *958their deposit [on the new property] or breach” their agreement of sale. App. at 18a ¶ 33.
The Kemezises farther allege that they had been surreptitiously charged a yield spread premium (“YSP”) in connection with their purchase of the Property. “A YSP is a payment by a lender to a broker that compensates the broker for originating a loan with an ‘above-par’ interest rate. The ‘par rate’ is the interest rate at which the lender will fund 100% of the loan with no premiums or discounts.” Nat'l Ass’n of Mortg. Brokers, Inc. v. Donovan, 641 F.Supp.2d 8, 10 (D.D.C.2009). Based on these and other allegations, the Kemezises filed an eighteen-count complaint against Matthews, Keegan Mortgage Corp., and Fremont Investment & Loan Co. in federal district court based on a wide range of state and federal laws.
The District Court dismissed most of the federal claims without prejudice, and dismissed the remainder of the federal claims with prejudice. After holding that the Kemezises failed to adequately plead diversity jurisdiction, the District Court declined to exercise supplemental jurisdiction over the state law claims, and dismissed them all without prejudice. The Kemezis-es subsequently amended their complaint.
Thereafter, the District Court requested that the Kemezises supplement the record with copies of their loan documentation. After reviewing those documents, the District Court dismissed the entire Complaint, this time with prejudice. As relevant here, the District Court reasoned that the UTPCPL claim — the only claim that the Kemezises challenge on appeal — failed because the allegations were not pled with the particularity required for claims of fraud under Federal Rule of Civil Procedure 9(b).
II.
Discussion1
The Kemezises argue that the District Court erred in applying the Rule 9(b) pleading standards for fraud claims to their UTPCPL claim, and that the claim should have survived a motion to dismiss under any standard. There is some disagreement in the Pennsylvania courts, and in district courts in this circuit, about whether the Pennsylvania Legislature’s 1996 addition of the language “deceptive conduct” to the catchall provision of the UTPCPL, 73 Pa. Cons.Stat. § 201-2(4)(xxi), was intended to relieve those plaintiffs who made claims under that provision of the burden of proving all the elements of a common law fraud claim. See Hunt v. U.S. Tobacco Co., 538 F.3d 217, 225 (3d Cir.2008); see also id. at 225 n. 15 (discussing cases).2 We need not *959resolve that question, or decide whether plaintiffs must in any event plead UTPCPL catchall claims with the particularity specified in Rule 9(b), because the Kemezises have failed to allege a plausible claim for relief even under the more lenient standards of Rule 8. See Ashcroft v. Iqbal, — U.S.-, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” (quotation and citation omitted)).
As this court recognized in Hunt, the Pennsylvania Supreme Court held in Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 854 A.2d 425, 438 (2004), that the private-plaintiff standing provision of the UTPCPL, 73 Pa. Cons.Stat. § 201-9.2, requires plaintiffs to prove justifiable reliance even in cases involving the post-1996 catchall provision. See Hunt, 538 F.3d at 223-24. Therefore, in order to adequately plead their claim the Kemezises must at least allege facts from which plausible inferences of deceptive conduct and justifiable reliance thereon can be drawn. See id. at 224-27. The Complaint does not contain sufficient allegations regarding either element.
The Kemezises do not challenge the authenticity of the loan documents they provided to the court. Those documents include a “Prepayment Rider” so named in large, bold letters, and a U.S. Department of Housing and Urban Development Settlement Statement that lists a YSP payment, both of which were signed by the Kemezises.3 It was therefore incumbent upon the Kemezises to provide some plausible explanation of what, if anything, the defendants had done or said, and upon which the Kemezises could have justifiably relied. The Complaint, however, contains little more than conclusory and generalized assertions that misrepresentations and conscious omissions were made.4
The Kemezises also argue that the District Court erred in not sua sponte providing them the opportunity to amend the Complaint again. Their position is that because the District Court’s first dismissal turned on the merits of the federal claims and a lack of diversity jurisdiction, they were not placed on notice of potential defects in the Complaint regarding their state law claims. Therefore, they argue, the District Court was required to provide them opportunity to amend again.
The Kemezises did not move the District Court for permission to amend their Complaint during pendency of the motions to dismiss. Nor did they move to amend the Complaint via motion under either Federal Rule of Civil Procedure 59(e) or 60(b). “[I]n ordinary civil litigation it is hardly error for a district court to enter final judgment after granting a Rule 12(b)(6) motion to dismiss when the plaintiff has not properly” made such a motion. Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 253 (3d Cir.2007);5 see id. (recognizing that a plaintiff has time after dismissal with prej*960udice to move to amend the complaint under 59(e), and that Rule 60(b) gives a plaintiff a year in which to move to amend for good cause). Under the circumstances here, “the Court did not err in dismissing the case with prejudice, as it had no duty here even to consider allowing a right to amend.” Id.
Additionally, the Kemezises have failed to either offer to this court a draft amended complaint or to otherwise explain what facts they would allege to rehabilitate their UTPCPL claim. This also precludes the relief they request. See Fletcher-Harlee, 482 F.3d at 252 (recognizing that “we have held that a failure to submit a draft amended complaint is fatal to a request for leave to amend”). Nor do we give credence to the Kemezises’ claim that they were “caught unaware by the Court’s entry of judgment, as [they] had notice of [the defendants’] motion[s] and every opportunity to amend [their] complaint beforehand.” Id. at 253.
III.
Conclusion
For the reasons set forth above, we will affirm the judgment of the District Court, this court to hold otherwise.
. The District Court had jurisdiction under both 28 U.S.C. §§ 1331 and 1332. This court has jurisdiction under 28 U.S.C. § 1291. Our review of the District Court's dismissal under Rule 12(b)(6) is plenary. Howard Hess Dental Labs. Inc. v. Dentsply Int'l., Inc., 602 F.3d 237, 246 (3d Cir.2010).
. Appellees Matthews and Keegan Mortgage Corp. argue that this court’s opinion in Tran v. Metro. Life Ins. Co., 408 F.3d 130, 140-41 (3d Cir.2005), held conclusively that Rule 9(b) applies to UTPCPL catchall claims. Tran does not mention Rule 9(b), and so, presumably, that argument rests generally on statements such as that "a distinction between fraud and non-fraud claims under the UTPCPL cannot be made-” Id. at 140. However, the Tran case itself did not involve the catchall provision. Moreover, the Pennsylvania Superior Court case upon which Tran most heavily relied, Toy v. Metro. Life Ins. Co., 2004 PA Super 404, 863 A.2d 1 (2004), concerned claims under the pre-1996 version of the UTPCPL catchall clause. As such, on appeal in the Toy case the Pennsylvania Supreme Court expressly declined to address what impact, if any, the 1996 changes to the language UTPCPL catchall had on claims made under that provision. See Toy v. Metro. Life Ins. Co., 593 Pa. 20, 928 A.2d 186, *959203 n. 20 (2007). Therefore, although the Appellees may be correct that the UTPCPL catchall requires proof of all the elements of fraud and/or that Rule 9(b) otherwise applies to UTPCPL catchall claims, we are unwilling to rely on Tran for that point of law. In any event, we note there is a tension between the Kemezises’ argument that Rule 9(b) does not apply to their catchall claim, and their subsequent assertion that the Complaint "sounds in fraud in the inducement.” Appellants' Br. at 18.
. The Kemezises make no argument that the District Court erred in requesting or reviewing these documents.
. Given this lack of specificity, it is also unclear how any deceptive statements might survive Pennsylvania's Parol Evidence Rule. See Yocca, 854 A.2d at 438-39.
. This court employs an alternate rule in civil rights cases under which "district courts must offer amendment-irrespective of whether it is *960requested-when dismissing a case for failure to state a claim unless doing so would be inequitable or futile." Fletcher-Harlee, 482 F.3d at 251. The Kemezises, however, have offered no argument why cases under the UTPCPL should be considered anything but "ordinary civil litigation.” Id. at 253. We recognize that the Hunt court remanded to the district court to decide whether the plaintiff in that case should be permitted to amend under the "inequitable or futile" standard, see Hunt, 538 F.3d at 228 (quotation omitted), but the Hunt opinion did not mention Fletcher-Harlee and there is no reason to believe that the defendants in that case made arguments concerning the standards set therein. In contrast, the defendants here squarely argue that Fletcher-Harlee is dispositive, while the Kemezises have provided no reason for this court to hold otherwise. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480728/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dana Amile Capehart 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 for the reasons stated by the district court. See United States v. Capehart, No. 2:06-cr-00113-RAJ-FBS-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/8480729/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Frederick Anthony Cargill appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing his motion for a writ pursuant to 28 U.S.C. § 1651(a) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Cargill v. United States, No. 1:09-cv-00861-JAB-PTS (M.D.N.C. Dec. 30, 2009). We grant leave to proceed in forma pauperis. *982We 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/8480730/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sim Chestnut appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 IT.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. Chestnut v. Broum, No. 9:09-cv-01418-RBH, 2010 WL 2136610 (D.S.C. May 25, 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/8480731/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Jones appeals the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm. See United States v. Jones, No. 1:08-cr-00001-JCC-4 (E.D. Va. June 10, 2010); United States v. Hood, 556 F.3d *3226 (4th Cir.), cert. denied, — U.S.-, 130 S.Ct. 321, 175 L.Ed.2d 212 (2009) (noting that defendant convicted of a crack offense, but sentenced pursuant to a mandatory statutory minimum sentence, is ineligible for a reduction under § 3582(c)(2)). 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/8480915/ | PER CURIAM.
JUDGMENT
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/8480732/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mohammad Ashray Mohammad-Omar appeals the district court’s order denying his request for production of transcripts. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Mohammad-Omar, No. 1:07-cr-00425-CMH-3 (E.D.Va. May 27, 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/8480733/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Duan A. Somers appeals the district court’s order denying reconsideration of its previous order granting Somers’ 18 U.S.C. § 3582(c)(2) (2006) motion for a sentence reduction. The district court’s order reducing Somers’ sentence was entered on March 20, 2008. In August 2008, Somers filed a motion for reconsideration of that order, that the district court denied. As the district court lacked the authority to grant reconsideration of its previous order, United States v. Goodwyn, 596 F.3d 233 (4th Cir.), cert. denied, — U.S.-, 130 S.Ct. 3530, 177 L.Ed.2d 1110 (2010), we affirm the district court’s order denying reconsideration. We dispense with oral argument as the facts and legal contentions are adequately presented in the materials before the court and argument would not aid in the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480734/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Lamont Walker seeks to appeal the district court’s order denying his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record in this case and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. 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/8480735/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Earl Smith appeals the district court’s order dismissing this civil action pursuant to Fed.R.Civ.P. 12(h)(3) for want of jurisdiction. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Smith v. Winfrey, No. 2:10-cv-00182-RAJ-FBS (E.D.Va. May 18, 2010). The motion to seal is denied. 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/8480736/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Edward Nixon appeals the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Nixon, No. 7:04-cr-00085-F-1 (E.D.N.C. Dec. 15, 2009). We deny Nixon’s motion for appointment of counsel. We dispense with *40oral 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/8480737/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leamon L. Tatum appeals the district court’s order denying relief on his 42 U.S.C. § 1988 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Tatum v. Corr. Med. Services, No. 1:09-cv-00875WDQ, 2009 WL 3379547 (D.Md. Oct. 19, 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/8480739/ | Affirmed by unpublished PER CURIAM opinion.
PER CURIAM:
Radhia Haj-Mabrouk, individually and as parent and next friend of L.H., appeals the district court’s order granting summary judgment in favor of Wal-Mart Stores East, L.P., in her civil action alleging that Wal-Mart employees’ negligence resulted in her slip and fall, which caused injuries to her and prenatal injuries to her son. Our review of the record and the briefs filed by the parties discloses no reversible error. Accordingly, we affirm for the reasons stated by the district court. Haj-Mabrouk v. Wal-Mart Stores East, LLP., No. 1:08-cv01740-JFM, 2009 WL 1940721 (D. Md. June 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.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480740/ | Affirmed by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Catherine D. Randolph appeals the district court’s orders dismissing her civil complaint without prejudice. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Randolph v. Clifton T. Perkins Hosp. Ctr., No. 1:10-ev-00284-JFM, 2010 WL 672844 (D.Md. Feb. 19, 2010). We deny Randolph’s emergency petition for review, as well as her motions for appointment of counsel, stay pending appeal, and an expe*47dited decision. 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/8480741/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Lee Boyd, Jr., appeals the district court’s order denying relief on his motion to enforce the plea agreement. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Boyd, No. 5:93-cr-00123-F-3 (E.D.N.C. June 30, 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/8480742/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cornell Rogers appeals the district court’s order dismissing without prejudice his 42 U.S.C. § 1983 (2006) complaint. We *62have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Rogers v. Powell, No. 1:10-cv-00468-AJTTRJ (E.D. Va. filed June 28, 2010, and entered June 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/8480743/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Benjamin William Fawley appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915A(b) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Fawley v. Johnson, No. 2:10-cv-00175-MSD-FBS (E.D. Va. June 24, 2010). We deny Fawley’s motion to allow documents, 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.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480745/ | PER CURIAM: *
Christopher Daniel Wyatt, Texas prisoner # 00758734, seeks a certificate of appealability (COA) to appeal the district court’s order dismissing his 28 U.S.C. § 2254 habeas corpus petition without prejudice for failure to prosecute under Federal Rule of Civil Procedure 41(b). Wyatt’s petition challenged his 1996 murder conviction, for which he was sentenced to life in prison.
The district court’s order denying Wyatt a COA stated that the order dismissing Wyatt’s § 2254 petition without prejudice was not final or appealable, but we have long held that a “dismissal for failure to prosecute” under Rule 41(b) is “a final judgment disposing of the action and is appealable.” Dudley v. Cmty. Pub. Serv. Co., 108 F.2d 119, 121 (1939); see also Larson v. Scott, 157 F.3d 1030, 1031-32 (5th Cir.1998) (affirming a sua sponte dismissal without prejudice for want of prosecution under Rule 41(b)). Accordingly, the Rule 41(b) dismissal of Wyatt’s § 2254 petition without prejudice is appealable, 28 U.S.C. §§ 1291, 2253(a), and a COA is required for him to proceed. § 2253(c)(1)(A).
To obtain a COA, Wyatt must make “a substantial showing of the denial of a constitutional right.” § 2253(c)(2). In this case, the district court ordered Wyatt to show cause on or before February 10, 2010, why his § 2254 petition should not be dismissed as time barred. On February 17, 2010, the district court dismissed the case without prejudice for want of prosecution under Rule 41(b). Two days later, Wyatt’s response to the show-cause order arrived at the district court. At the end of the response, Wyatt declared “under penalty of perjury” that he deposited the document in the prison mail system “on this 10th day of February, 2010.” Wyatt did not specify that he prepaid first-class postage, but the record shows that he used two first-class stamps.
Under Rule 3(d) of the Rules Governing § 2254 Cases, Wyatt timely filed his response to the show-cause order, and the district court erred in finding that Wyatt missed the deadline and in dismissing Wyatt’s case for failure to prosecute on that basis. Thus, “jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In addition, because Wyatt’s § 2254 petition sets forth a facially valid constitutional claim, and given that the state court records were not filed in the district court, “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.” Id.; Houser v. Dretke, 395 F.3d 560, 562 (5th Cir.2004). Therefore, Wyatt is entitled to a COA. Slack, 529 U.S. at 484, 120 S.Ct. 1595.
“[Bjefore acting on its own initiative” to dismiss an apparently untimely § 2254 petition as time barred, a district court “must accord the parties fair notice and an opportunity to present their positions.” Day v. McDonough, 547 U.S. 198, 210, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006). Because the district court effectively denied Wyatt an *115opportunity to present his position, this case should be remanded for further proceedings.
Although we ordinarily permit full briefing after granting a COA, “the sole issue ... is indisputably resolved by the petitioner’s COA application and the record, making further briefing on that issue unnecessary.” Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir.1998). Accordingly, we GRANT Wyatt a COA, VACATE the judgment of the district court, and REMAND for further proceedings.
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/8480746/ | PER CURIAM: *
Andre Redmond appeals the 120-month sentence imposed following his guilty-plea conviction for conspiracy to receive and possess stolen firearms, possession of a firearm by a convicted felon, stealing a firearm, and receiving and possessing a stolen firearm. He contends: the district court erred by applying an upward departure without giving him prior notice, as required by Fed.R.Crim.P. 32(h); by failing to provide written reasons for the claimed departure; and, by applying the claimed departure based upon a prohibited factor.
Because Redmond did not raise the pri- or-notice issue in district court, we review only for plain error. See United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.2008). Reversible plain error exists where a clear or obvious error affects defendant’s substantial rights. E.g., United States v. Baker, 538 F.3d 324, 332 (5th Cir.2008), cert. denied, — U.S.-, 129 S.Ct. 962, 173 L.Ed.2d 153 (2009); see also Puckett v. United States, — U.S. -, -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). Even then, we have discretion whether to correct such an error and, generally, will do so only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Baker, 538 F.3d at 332.
The district court imposed a non-guidelines sentence that was a result of an upward variance from the advisory-guideline-sentencing range, not, as claimed by Redmond, an upward departure. See United States v. Mejia-Huerta, 480 F.3d 713, 721 (5th Cir.2007). A district court is not required to provide advance notice before applying an upward variance. Irizarry v. United States, 553 U.S. 708, 128 S.Ct. 2198, 2202-04, 171 L.Ed.2d 28 (2008). Accordingly, the district court did not commit error by not giving Redmond notice prior to sentencing. See id.
Redmond also contends: the district court failed to provide written reasons for the claimed departure; and remand is required because the resulting sentence was too high. See 18 U.S.C. § 3553(c)(2). Although Redmond did not raise this issue in district court, this contention is a challenge solely to the written judgment; and Redmond did not have an opportunity to object to it. Therefore, we review for abuse of discretion. See United States v. Warden, 291 F.3d 363, 365 n. 1 (5th Cir.2002).
In its written statement of reasons (SOR), the district court stated that the variance was based upon Redmond’s “lengthy criminal history, the fact he was arrested on new felony charges while on *117pretrial release”, and certain specified 18 U.S.C. § 3553(a) sentencing factors. The court further explained that it had considered the advisory-guideline-sentencing range, the statutory sentence ranges, and the § 3553(a) factors, and that it concluded that a sentence outside of the guidelines range better achieved the purposes of sentencing. At sentencing, the district court augmented its written reasons with an oral explanation for the sentence. By explaining in the SOR the facts and sentencing factors that were the basis for the sentence and complementing its reasons with an explanation at sentencing, the district court satisfied the requirement of § 3553(c)(2) that it provide written reasons for the sentence. See United States v. Gonzalez, 445 F.3d 815, 819-20 (5th Cir.2006).
Finally, Redmond claims the sentence is unreasonable because it was based upon a prohibited factor: his arrest on new felony charges while free on bond pending sentencing. He maintains: consideration of that arrest was improper because it had not resulted in a conviction; and remand for resentencing is required because the district court’s claimed failure to provide specific reasons for the sentence makes it impossible to determine whether the district court would have imposed the same sentence without considering the claimed impermissible factor. Because Redmond did not assert in the district court that his sentence was unreasonable or that the district court considered an impermissible factor, this issue is reviewed only for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.2007).
At sentencing, the district court explained the facts and sentencing factors on which the sentence was based. The presentence investigation report and the indictment to which Redmond pleaded guilty showed: Redmond participated in a conspiracy to steal firearms from a police department while he was an inmate; Redmond arranged to transfer the firearms to Chicago; Redmond had a long criminal history; and, Redmond was arrested on a new felony charge while free on bond pending sentencing.
Although we have held that prior arrests, standing alone, cannot be the sole basis for an upward departure, see United States v. Jones, 444 F.3d 430, 434 (5th Cir.2006), “[t]his court has not ... held that prior arrests may not be factored into a r¿cm-Guidelines sentence pursuant to § 3553(a)”, United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir.2008). Therefore, this sentence was not unreasonable. See id. at 807-08. Restated, there was no error.
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/8480747/ | PER CURIAM: **
On February 28, 2009, A.W., a student at Midland Freshman High School, admitted to police officers that he had been selling hydrocodone pills on campus and identified Appellant Sammy Ray Collins (“Collins”) as his supplier. Following Collins’s arrest and conditional release, a subsequent investigation revealed that Collins had prevailed upon A.W., both directly and through his brother, D.W., to write a falsified letter exonerating him of the accusations. Thereafter, Collins was charged by indictment with distribution of hydroeodone to a person under 21 years of age in violation of 21 U.S.C. §§ 841(a)(1) and 859(a) (“Count One”); use of a minor to distribute hydrocodone -within 1,000 feet of a school in violation of 21 U.S.C. §§ 841(a)(1) and 860 (“Count Two”); and witness tampering in violation of 18 U.S.C. §■ 1512(b)(1) (“Count Three”). At trial, a jury found Collins guilty on all three counts. On appeal, Collins challenges the legal and factual sufficiency of the evidence to support each conviction. Collins also contends that the district judge abused his discretion by excusing a juror who was seen speaking to and hugging Collins’s mother-in-law prior to the trial.
Having reviewed the evidence in the record in a light most favorable to the verdict, the court finds that a rational trier of fact could have found beyond a reasonable doubt that Collins, a person at least 18 years of age, knowingly and intentionally distributed hydrocodone to a person under 21 years of age; that Collins, a person at least 21 years of age, knowingly and intentionally employed, hired, used, persuaded, induced, enticed, or coerced a person under 18 years of age to distribute hydrocodone within 1,000 feet of the real property comprising a public school; and that Collins knowingly engaged in misleading conduct toward another person with intent to influence, delay, or prevent the testimony of any person in an official proceeding. Thus, the evidence presented at trial was sufficient to establish every element of the three crimes charged. Furthermore, the district judge did not abuse his discretion by dismissing the juror from the panel. Accordingly, Collins’s convictions are 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/8480748/ | PER CURIAM: *
At issue is whether the district court properly granted summary judgment, dismissing Zamora’s maritime and Jones Act claims for lack of subject-matter jurisdiction. We agree with the district court that there was no jurisdiction. Furthermore, we also agree with the district court that to the extent that there are any remaining claims over which the court has jurisdiction, they are untimely. Accordingly, we AFFIRM.
This case arises out of personal injuries that Zamora sustained on August 1, 2003 while working on a boat for the Bodden Shrimp Company (BSC). Zamora sued BSC for his injuries, and, on August 16, 2004, he obtained a final judgment against the company. Zamora, however, could not recover from BSC because BCS had filed for bankruptcy under Chapter 7. With that avenue for recovery closed, Zamora filed this action on February 13, 2007 against Lorance W. Bodden on the theory that he was the alter ego of BSC.
This court reviews a district court’s grant of summary judgment de novo, applying the same standard as the district court. Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir.2001). Summary judgment is proper when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).
Zamora argues that there is federal-question jurisdiction because he seeks to collect an award (on an alter-ego theory) rendered in a prior admiralty case.1 Put differently, he believes that the court in this collection action can derive its federal jurisdiction from the earlier lawsuit. The Supreme Court, however, has rejected this argument, explaining that such claims must have independent grounds for federal jurisdiction. See Peacock v. Thomas, 516 U.S. 349, 356, 116 S.Ct. 862, 133 L.Ed.2d 817 (1996) (“[Cjlaims alleged to be factually interdependent with and, hence, ancillary to claims brought in an earlier federal lawsuit will not support federal jurisdiction over a subsequent lawsuit.”).
Insofar as there are any remaining claims supported by federal jurisdiction, they are barred by the three-year statute of limitations that is applicable to personal-injury claims arising out of a maritime tort. See Pretus v. Diamond Offshore Drilling, Inc., 571 F.3d 478, 481 (5th Cir.2009) (citations omitted). Here, the limitations period began on August 1, 2003, when Zamora sustained his injuries. After accounting for tolling on two occasions, the district court correctly concluded that the limitations period expired on December 9, 2006. Because Zamora did not file his complaint until February 13, 2007, his claims are barred.
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.
. There is no diversity jurisdiction because the parties are both Texas residents. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480749/ | PER CURIAM: *
Jerovan Benitez appeals the 78-month sentence imposed following his guilty-plea conviction for possession with intent to distribute 500 grams or more of cocaine. He contends the district court erred in failing to reduce his sentencing offense level for acceptance of responsibility. Benitez asserts that his alleged denial of involvement with the transportation of cocaine was an error in translation by the interpreter.
Although post-Booker, the Sentencing Guidelines are advisory only, and an ultimate sentence is reviewed for reasonableness under an abuse-of-diseretion standard, the district court must still properly calculate the guideline-sentencing range for use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 49-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In that respect, its application of the guidelines is reviewed de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005).
A “factual determination” is used in deciding whether a defendant is entitled, under Guideline § 3E1.1, to a downward adjustment for acceptance of responsibility. United States v. Anderson, 174 F.3d 515, 525 (5th Cir.1999). “We will affirm a sentencing court’s decision not to award a reduction under ... § 3E1.1 unless it is ‘without foundation,’ a standard of review more deferential than the clearly erroneous standard.” Id. (quoting and citing United States v. Hooten, 933 F.2d 293, 297 (5th Cir.1991)); see also United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir.2008).
“If a defendant enters a guilty plea prior to trial, truthfully admits the conduct comprising the offense, and admits, or at least does not falsely deny, any additional relevant conduct for which he is accountable, the court may find significant evidence of the defendant’s acceptance of responsibility.” United States v. Medina-Anicacio, 325 F.3d 638, 648 (5th Cir.2003); see U.S.S.G. § 3E1.1, cmt. n. 3. Pleading guilty, however, does not entitle the defendant to a reduction as a matter of right; *121evidence of the defendant’s acceptance of responsibility may be outweighed by conduct inconsistent with such a claim of responsibility. U.S.S.G. § 3E1.1, cmt. n. 3.
Although Benitez pleaded guilty, the district court was within its bounds of discretion to find that Benitez had misrepresented facts to minimize his role in the offense. Benitez’s assertion that there was merely a misinterpretation in the translation of his statement concerning the type of drugs involved was contradicted by the following evidence in the presentence investigation report (PSR): he and his brother were observed loading the truck with items taken from the mobile home; a cocaine packaging area was discovered in the mobile home where he slept; and, his brother-in-law stated that Benitez was allowed to package cocaine at their mobile home. Benitez’s contention that he was asked to transfer marijuana from Houston after he arrived there to pick up a W-2 form from an employer was not credible in the light of the Agents’ surveillance of the mobile home and the interview of Benitez’s sister and brother-in-law-the residents of the mobile home. Benitez has not provided any evidence, other than his own self-serving statements, to rebut the information in the PSR. See United States v. Solis, 299 F.3d 420, 455 (5th Cir.2002).
Under these circumstances, especially under our extremely deferential standard of review for acceptance-of-responsibility rulings, the district court did not err in deciding that Benitez had not sufficiently accepted responsibility to receive a downward adjustment under Guideline § 3E1.1. See United States v. Whitfield, 590 F.3d 325, 368-69 (5th Cir.2009), petition for cert. filed, 78 USLW 3715 (24 May 2010) (No. 09-1422).
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/8480772/ | PER CURIAM:
We have carefully reviewed the record and briefs. We conclude that the district court correctly dismissed the complaint.
The statements of conclusions without fact averments do not and did not meet the plausibility standard of Randall v. Scott, 610 F.3d 701 (11th Cir.2010).
Appellant did not and has not moved for permission to amend the complaint. No amendment was filed or proffered.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481643/ | Lee, J.
That the evidence offered by the defence in this case might be received under the general issue, if itself free from objection, is very clear. It has long been settled that the defendant under this issue may prove that the locus in quo was his own freehold or that of another by whose authority he entered, or that he hath any other title or right to the possession. Diersly and, Nevel's Case, 1 Leon. R. 301; Dodd v. Kyffin, 7 T. R. 354; Garr, &c. v. Fletcher, 2 Stark. R. 71, 3 Eng. C. L. R. 250; Chambers v. Donaldson, 11 East’s R. 65, 72; Argent v. Durrant, 8 T. R. 403, Gilb. Ev. 258.
The objection to the evidence offered, to prove that Cochran was the superintendent of the road referred to, is I think, wholly untenable. In general it is not necessary to prove the written appointments of public officers. That one has acted as such officer and been recognized by the public as such, is sufficient evidence that he had been duly appointed until the contrary appears; nor is it material how the question arises, whether in a civil or a criminal case, nor whether the officer is a party or his official character is involved in-«dentally, unless where, being plaintiff, he unnecessarily avers his title to the office or the mode of his appointment; in which case, perhaps, the proof must sustain the entire averment. McGahey v. Alston, 2 Mees. & Welsb. 206; Berryman v. Wise, 4 T. R. 366; Cannell v. Curtis, 2 Bing. N. C. 228 (29 Eng. C. L. R. 316); The King v. Gordon, 2 Leach’s C. C. 15; 1 Greenl. Ev. § 83, 92, and cases cited in nn. Still stronger is the case where, as in this, the acts and official character were fully recognized by the appointing power.
Nor can the objection to the plat and profile of road offered in evidence be sustained. It is true there was *249at that time no such precise road known to the law as the “Marland’s Bottom and Lewisburg turnpike,” but it is easy to see how it came to be so designated. By an act passed on the 25th of February 1850, provision was made for constructing what was called the “Huttonsville and Huntersville road.” By this act the Board of public works were directed to have the road constructed, and for that purpose they were to exercise all the powers and be subject to all the restrictions which were given to and imposed upon the board by the act providing for the construction of the Staunton and Parkersburg road, passed March 16, 1888, except as therein otherwise specially directed. By that act the powers, duties and restrictions of the board in relation to the Staunton and Parkersburg road are defined by reference to those given to and imposed upon the president and directors of the Northwestern turnpike road by the act providing for the construction of that road, passed March 19, 1831, except as therein specially directed. By the fourth section of that act it was made the duty of the principal engineer to lay out and locate the road, and to deliver to the clerks of the County courts of the counties through which the same might pass, plats or maps of so much of the road as might be within their respective counties, to be by them recorded; and thereupon the land over which the said road should be located was to become if so facto vested in the commonwealth for the use of the said road. On the 22d of March 1853 an act was passed providing for the extension of the Huttonsville and Huntersville turnpike from Marland’s Bottom in the county of Pocahontas to Lewisburg. In the title to the act the road is described as “ the Huttonsville, Marland’s Bottom and Lewisburg turnpike.” By the second section of the act for the construction of the Huttonsville and Huntersville road the Board of public works was directed to employ a competent engi*250neer or superintendent who was to perform the duties, enjoined upon the engineer of the Staunton and Parkersburg road, which as we have seen were the same as those enjoined upon the principal engineer by the act for the construction of the Northwestern turnpike. It was proved by the superintendent that the road had been located and the plat and profile offered in evidence made out and returned to the clerk’s office under his authority as superintendent, and the fact reported by him to the board; and the certificate of the clerk shows that it had been received on the 7th of March' 1854 and admitted to record. It of course represented only the Greenbrier portion of the line between Mar-land’s. Bottom and Lewisburg, and it was therefore described for the sake of brevity, perhaps, or because it was popularly so called as “ the Lewisburg and Mar-land’s Bottom turnpike.” That it was so called appears throughout the record, and the plaintiff herself uses that name in speaking of it; and it was after-wards so called in the act of the 26th of February 1856. It was at most a mere misnomer which could mislead no one as the explanation was patent upon the face of the plat when taken in connection with the acts of assembly under which it had been made.
By the “plat of the land” to be occupied by the road required to be returned to the clerk’s office by § 5, of ch. 70, of the Code (p. 349), I understand the same thing that is called a “ plat or map of the road” in section 4th of the act concerning the Northwestern turnpike road, and I regard the profile in this case if not as perfect as it might have been made, yet as substantially complying with the requirement of the act. And having been returned to the clerk’s office by Cochran, the superintendent whose duty from the nature of his office it was to cause the plat and profile to be made and so returned, the authorization of his act is sufficiently implied, and it must be taken to be *251the act of the board until the contrary is made to appear.
I think these grounds of objection to the profile as evidence were clearly insufficient, and I pass on to consider the effect of the survey and the return of the profile to the clerk’s office in their bearing on the case, in connection with the first instruction asked for by the plaintiff and that which the court gave instead, when it refused it.
It may be inferred from what we see in the record that the Board of public works, under the act of March 22, 1853, had progressed with the work of the road from Marland’s Bottom to Lewisburg and had completed the same as far as a place called Oakland ; that at that point for some cause which it may not be difficult to conjecture, work upon the road had been suspended, and that it was determined to appeal to the public spirit of the people in the section interested for the means of prosecuting this work deemed of public utility, to its completion. For at the next session of the general assembly, an act was passed (Sess. Acts 1855-6, ch. 198, p. 139) providing for the incorporation of a company to be called the “ Oakland and Lewisburg company, for the purpose of continuing the Marland’s Bottom and Lewisburg turnpike from Oakland its then southern terminus to Lewis-burg. By the second section of this act, the company was required to construct the road of the same width and grade as those of the Lewisburg and Marland’s Bottom turnpike, and upon the location determined by the Board of public works, plainly referring to the location which had been made under the act of the 22d of March 1853 for the extension of the Huttonsville and Huntersville road from Marland’s Bottom to Lewisburg. How I can perceive no reason why the legislature might not authorize this company to construct the road upon the ground which had in fact *252been appropriated for the same road under another name.' By the Code, (ch. 70, § 5, p. 349,) it is pro- ’ vided that upon the return of the plat of the land to be taken for a work of internal improvement to the clerk’s office and when admitted to record, the land so to be occupied, shall ipso facto be vested in the state. Whether the interest so vested is an absolute fee simple or a qualified estate in the nature of a base fee for the use and purposes of the work, I do not deem it very material to enquire, though I incline to think notwithstanding the broad language of the act, it is of the latter character only. Were it an absolute fee simple, there would seem to be no need of the eighth section of the same chapter which provides that any land taken for such work may be used not only therefor but also for any other work of a different kind which the legislature might at a future time direct or authorize. Concede that the state takes only a qualified estate in the land, if the legislature could direct the Board of public works or authorize a company or third persons to construct a work of a different character from that for which the land had been appropriated (as to which or the validity or true construction of the section, I express no opinion) I can perceive no reason why it might not authorize a company to construct and use a work of precisely the same character, in fact the very road intended, upon the land appropriated. How is the land owner injured? If he might complain should his land taken for an ordinary turnpike road, be converted to the construction and working of a totally different kind of improvement, such e. g. as a rail road whereby he would be subjected to the greater inconveniences and the risks to life and property from such a road running through his land, (as to which I express no opinion,) surely he can have no just cause of complaint when the road which is actually to be made and used, is *253precisely the kind of road for which the lancl^feSp-iSj propriated. Whether it be made by the Boarcl.of public works under the direction of the legislature by a company under its authority, he is incommoded exactly in the same degree and the conveniences and advantages which he derives are precisely the same.
But it is said the enterprise of constructing a road from Marland’s Bottom to Lewisburg was abandoned by the legislature, and that finding it so the plaintiff may for those reasons have failed to file her petition and claim compensation for her land. Where land has been appropriated for a public work and the legislature afterwards by indubitable evidences manifests its intention to abandon the enterprise and the interest of the state, if a qualified estate only, has ceased and determined, I certainly will not undertake to affirm that a company incorporated at a subsequent period to construct such a work could claim to occupy the ground formerly appropriated by the state without making such compensation; but in this case there is no evidence of any such abandonment. That the Board of public works had not been able for whatever cause to complete the road to Lewisburg within one year after the filing of the profile in the clerk’s office was certainly not sufficient to justify her in concluding that the enterprise was abandoned and induce her to forbear preferring her claim for compensation, if she otherwise would have done so within the year. That the enterprise was abandoned after the road had been made as far as Oakland because the work was suspended, whether before or after the expiration of the year and whether because money could not be raised or thfe appropriation had been exhausted, was by no means the necessary nor the proper inference. The Board of public works had not the power to declare the enterprise abandoned and surrender the commonwealth’s interest in the location. The legislature hav*254ing declared jts purpose to extend the road to Lewis-burg, it would have been more proper to conclude that it would provide the means either by an additional appropriation if the former were exhausted, or as it in fact did at the very next session, by designating another agency to go on and finish the work. And such is the true and proper construction of the act of 1S55-6, and it was I think, plainly intended to authorize this company to occupy the location theretofore made by the Board of public works, and complete the line to Lewisburg.
Whether the plaintiff preferred her claim and obtained compensation for the land occupied by the road after the profile had been filed, we are not informed. If she did prefer it and received such compensation, surely she cannot be entitled to demand it a second time. If because she thought the peculiar benefits which she would derive in respect to the residue of her land would be full compensation and did not care to risk costs in seeking more, or whether with a commendable public spirit she chose to waive her claim, she must after the expiration of the year stand on the same footing as if she had received all that she was entitled to.
I think therefore the court properly refused to give the first instruction .asked for, and that the instruction which it gave in lieu of it was substantially correct. But I think’ it erred in refusing to give the third instruction and in giving that which it did give, instead, understanding both as referring to the peculiar benefits which the party would derive in respect to the residue of her land by the construction of the road on the new location. If the company desired to change thé location and had the right to do so, it was their duty to conform to the provision of the Code, ch. 56, § 21, p. 296. If they failed to do this, and departed from the location, they became trespassers, and when sued, *255they were not at liberty to fall back upon the provisions of that and other kindred sections and have the damages estimated according to the measure of compensation to the land owner prescribed by them. When off of the location they were mere trespassers, and the damages were to be estimated as in other actions of trespass. For this cause I think the judgment should be reversed and a new trial directed*
Daniel, Moncure and Robertson, Js. concurred in the opinion of Lee, J.
Allen, P. was of opinion that the Lewisburg and Oakland turnpike company were not authorized to occupy the location that had been made by the Board of public works without compensation to the land owners. He concurred in the opinion of Lee, J* on the other points.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480751/ | PER CURIAM: *
A jury convicted Salvador Gonzalez on one count of conspiracy to possess with intent to distribute drugs. The district court sentenced Gonzalez to a within-guidelines sentence of 235 months of imprisonment and a five-year term of supervised release. Gonzalez filed a timely notice of appeal.
Gonzalez challenges the procedural reasonableness of his sentence. He contends that the district court failed to consider the *12318 U.S.C. § 3553(a) sentencing factors, failed to adequately explain its choice of sentence in light of his mitigating arguments, and treated the Sentencing Guidelines as mandatory. Gonzalez did not raise any of these specific arguments in the district court. Thus, under the law of this circuit, which we may not overrule absent en banc consideration or a superseding Supreme Court decision, see United States v. Lipscomb, 299 F.3d 303, 313 n. 34 (5th Cir.2002), our review is for plain error only. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 & n. 2 (5th Cir.2009).
The sentencing transcript explicitly refutes Gonzalez’s contention that the district court failed to consider the § 3553(a) factors at all. Gonzalez’s other arguments are also unavailing. The statement of reasons signed by the district court indicates the court’s acknowledgment that the Guidelines were advisory only, and one of the factors for consideration under 18 U.S.C. § 3553(a) is the guidelines range itself. Gonzalez has not shown that, rather than merely concluding that a sentence within the guidelines range was appropriate under § 3553(a), the district court treated the guidelines as mandatory. In addition, Gonzalez has not shown that his substantial rights would have been affected by any error by the district court in explaining his sentence, as Gonzalez has not shown that any further explanation by the district court would have changed his sentence. See Mondragon-Santiago, 564 F.3d at 365.
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/8480752/ | PER CURIAM: **
Appellant Abbasid, Inc. (“Abbasid”) appeals the district court’s order denying its motion to compel arbitration pursuant to an arbitration agreement between Abbasid and Appellee Bank of America, N.A. (“BOA”). The decision of the district court is affirmed for the following reasons:
Abbasid initiated litigation against BOA in state court for breach of contract, *124fraud, negligence, and violations of the Uniform Commercial Code, alleging that BOA wrongfully processed and paid unauthorized checks and debit card charges on its account. BOA removed the action to federal district court, and Abbasid allowed the case to progress in that forum for over one year without invoking the arbitration agreement. During this time, Abbasid engaged in significant pre-trial activity, including filing a motion to remand, organizing a case management plan, serving disclosures, and engaging in discovery and motions practice. BOA expended time and resources removing the case to federal court, defending against the motion to remand, propounding and responding to discovery requests, and filing and defending against motions to compel. Furthermore, the timing of Abbasid’s motion to compel arbitration virtually assured that the district court would not rule on the motion before sufficient discovery had been conducted to allow BOA to file a motion for summary judgment.
The district court did not err in determining that Abbasid substantially invoked the judicial process by filing suit against BOA and proceeding with litigation for over one year without objection. The court, likewise, did not err in determining that Abbasid’s actions prejudiced BOA in terms of delay, expense, and legal position. Under these circumstances, the district court correctly determined that Abbasid waived its right to arbitrate its claims. Accordingly, the district court’s order denying Abbasid’s motion to compel is 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/8480754/ | PER CURIAM: *
Tremayne D. Armstead and Travis L. Williams were convicted by jury verdict of conspiracy to distribute 50 grams or more of a substance containing crack cocaine and distributing 50 grams or more of a substance containing crack cocaine. Arm-stead was sentenced to a total of 276 months of imprisonment and ten years of supervised release. Williams was sentenced to a total of 120 months of impris*127onment and five years of supervised release.
Williams argues that the district court erred by denying his motion to sever his trial because evidence of Armstead’s prior drug dealings with the confidential informant (Cl), some of which did not involve Williams, prejudiced his defense. In light of the minimal potential prejudice from that evidence to Williams, as well as the trial court’s jury instructions in this regard, Williams has failed to show that the district court erred in this regard. See United States v. Simmons, 374 F.3d 313, 317 (5th Cir.2004).
Williams also contends that the district court erred by permitting the DEA agent to testify that the Cl had positively identified Armstead as the person the Cl knew as “Pokey.” Even if it is assumed that Williams has standing to raise this challenge, that this challenge has been preserved for appeal, and that the testimony constituted inadmissible hearsay, any error was rendered harmless by the Cl’s trial testimony confirming that identification. See United States v. Ragsdale, 426 F.3d 765, 774 (5th Cir.2005).
Armstead argues that his sentence is both procedurally and substantively unreasonable in light of the district court’s failure to properly consider his request to lower his sentence to reduce the disparity ratio between crack and powder cocaine. Our review of the transcript shows that the district court’s explanation rejecting Armstead’s argument for a lower ratio and supporting the imposed sentence was adequate. See Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Moreover, Armstead has failed to overcome the presumption of reasonableness afforded to his within-guidelines sentence. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006).
The district court’s judgment is 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/8480773/ | *684ON PETITION FOR WRIT OF MANDAMUS
ORDER
BP Lubricants USA Inc. submits a petition for a writ of mandamus directing the United States District Court for the Northern District of Illinois to (1) vacate its August 25, 2010 order denying BP’s motion to dismiss and (2) dismiss the complaint.
Upon consideration thereof,
It is Ordered That:
Thomas A. Simonian is directed to respond to BP’s mandamus petition within 14 days of the date of filing of this order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480774/ | ON MOTION
ORDER
Sixto Déla Cruz moves for leave to proceed in forma pauperis.
Upon consideration thereof,
It Is Ordered That:
The motion is granted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480755/ | PER CURIAM: **
Appellants appeal from the judgment of the District Court which affirmed the *128judgment of the Bankruptcy Court which found fraud, fraudulent transfer, and pierced the corporate veil to award damages against the Appellants. Appellants complain of the standing of the Appellee to bring the claims in the Bankruptcy Court based on their argument that the purchase agreement was not assigned to Appellee. They also raise a number of issues relating to the finding of fraud, the decision of the Bankruptcy Court to pierce the corporate veil, and to find the individuals liable. They also challenge the amount of the award and the decision of the Bankruptcy Court that did not allow the individual Defendants to attack a Delaware judgment against JNS Aviation.
We have carefully considered the arguments on appeal and have reviewed the record. After a de novo review of the legal determination of the Bankruptcy Court and review for clear error of the factual findings of the Bankruptcy Court, we affirm the judgment of the Bankruptcy Court. No error has been shown which would require reversal. Accordingly, the judgment on appeal is in all respects AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *128published 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/8480756/ | ORDER
Cathy Molnar claims that she is disabled by degenerative disc disease. The Social Security Administration denied her application for benefits after an Administrative Law Judge (“ALJ”) concluded that her impairment is severe but not disabling. Ms. Molnar argues that the ALJ erroneously concluded that her disc disease is not per se disabling. Alternatively, she contends that the ALJ improperly discredited her complaints of pain when determining her residual functional capacity. Because the ALJ’s decision is supported by substantial evidence in the record, we uphold the finding that Ms. Molnar is not disabled.
Ms. Molnar applied for disability insurance benefits and supplemental security income in February 2006. She had been laid off from her job as an administrative assistant in March 2005, and she claimed that after September 2005 she could no longer work due to degenerative disc disease. Ms. Molnar, who is 54 years old, has a high school education and previous work experience as a waitress, bartender and car salesperson.
Ms. Molnar’s medical issues began in 1997 when she injured her neck in a car accident and had corrective surgery. She returned to work full time, though in 2002 an MRI revealed degenerative changes in her lumbar spine and mild slippage of the vertebrae at the L4-5 level. Surgery was recommended, but Ms. Molnar declined. She continued to experience pain, which over time spread from her lower back to her legs. Then in September 2005, after she was laid off, Ms. Molnar sought treatment from Dr. Jamie Pearson, who noted tenderness in her lower back but observed that she walked without difficulty and retained normal lateral motion and strength in her lower extremities. The doctor diagnosed her with degenerative arthritis of the lumbar spine and prescribed pain medication. Two epidural steroid injections reduced inflammation in her lower back, and Ms. Molnar reported that her pain had been cut in half.
In late 2005, Ms. Molnar also was experiencing increasing pain in her neck and upper extremities. An MRI revealed degenerative discopathy in the cervical spine. A neurosurgeon, Dr. Robert Roach, observed during a November consultation that Ms. Molnar walked with a mildly spastic gait yet exhibited normal motor strength in her lower extremities and nearly normal motor strength in her upper extremities. He diagnosed cervical myelopathy related to spinal stenosis and recommended surgery.
That same month Ms. Molnar had cervical fusion surgery, the same procedure used after her 1997 accident. Just a few *284weeks later she reported to Dr. Roach that the pain in her neck and upper extremities was gone. She was walking normally and had regained full motor strength in her upper and lower extremities. In December 2005, a month after the surgery, Ms. Molnar reported to Dr. Thomas Hinck, her primary physician, that she was “doing really well” with her cervical issues. A.R. 152. She noted continuing tenderness in her shoulders, but said that the numbness in her arms had diminished. The pain in her lower back had not subsided completely, but Ms. Molnar declined a refill of her pain medication, which she had been taking only occasionally. Just over a month later, however, Ms. Molnar applied for benefits.
Ms. Molnar returned to Dr. Hinck in April 2006 and reported that her lower back pain had worsened. He reviewed a new MRI and diagnosed her with degenerative lumbar spine disease, prescribed a pain killer and steroid, and recommended that she consult an orthopedic surgeon. Ms. Molnar consulted with two orthopedic surgeons, and both recommended fusion surgery to repair her lumbar spine. Both surgeons observed that Ms. Molnar walked with an abnormal gait and complained of pain when bending forward, but her strength in all muscle groups, the reflexes in her knees and ankles, and her performance on a straight-leg raising test were all normal. In July 2006, Dr. Joseph Perra performed a spinal fusion in Ms. Molnar’s lower back.
That surgery was a success. A month later Ms. Molnar told Dr. Perra that she felt “wonderful” and could walk without pain for the first time in 15 years. A.R. 226. The surgeon confirmed that she was walking with a normal gait. He recommended physical therapy, and at her first session the therapist observed that Ms. Molnar could rise from a chair without difficulty, was able to move her neck freely and did not have obvious limitations. She had diminished strength in her right foot, but otherwise her strength in her lower extremities was normal. At her third session, Ms. Molnar expressed satisfaction with her progress and reported that she was able to do light yard work and function throughout the day. She added that she had spent two hours searching for agates in a gravel pit without experiencing any pain. In September 2006, she told the therapist that she was driving more and had experienced some stiffness in her neck as a result, but her lower back remained “quite good,” and she had been very active. A.R. 215. Ms. Molnar saw Dr. Perra in October 2006 and was able to move comfortably and had full strength in her lower extremities. Six months after her surgery, Ms. Molnar did not report any pain aside from occasional tenderness at the base of her spine and was able to bend forward 20 degrees without pain. Her gait was normal. One year after her surgery, in June 2007, Ms. Molnar reported no back pain, walked with a normal gait, and could bend forward without pain.
In November 2007, however, Ms. Molnar complained to Dr. Perra about increasing levels of pain in her arms and neck with numbness and tingling. Dr. Perra noted a diminished range of motion in the neck but also observed that Ms. Molnar retained full strength in her upper extremities. An MRI revealed some stenosis and a central disc herniation. Dr. Perra recommended a third cervical surgery, but Ms. Molnar decided to wait.
In December 2007, Dr. Hinck provided a list of work restrictions in connection with Ms. Molnar’s claim for benefits. He reported that she could occasionally lift from the floor up to 20 pounds, frequently lift from a table up to 20 pounds, frequently carry up to 20 pounds for less than 80 feet *285and occasionally carry up to 20 pounds for more than BO feet. She could frequently push, pull and reach below shoulder level, but Dr. Hinck recommended against bending, climbing, crawling, duck walking, squatting, overhead lifting, or reaching at or above the shoulder. Additionally, he believed, Ms. Molnar could frequently engage in fine manipulation and simple grasping with both hands. He opined that Ms. Molnar would not need to lie down during an eight-hour day but would miss on average two days of work per month. During an eight-hour day, she would need to change positions frequently and could sit for five hours at most, stand for no more than three hours, and walk no more than three hours. Finally, he restricted Ms. Molnar from all activities involving unprotected heights and rotation of the head and neck, and limited her to only occasional side-to-side bending and rotation of the upper body.
Ms. Molnar next saw Dr. Perra for neck pain in April 2008. She had stable reflexes and full strength in her upper extremities but diminished range of motion in the neck and increased misalignment of her cervical vertebrae. Dr. Perra again recommended surgery, and Ms. Molnar had her third cervical surgery in May 2008. In July 2008, six weeks after the surgery, she reported to Dr. Perra that the pain in her neck and arms was gone, as was the associated numbness and tingling. Dr. Perra concluded that she now had full strength in her upper extremities but still had a limited range of motion in her neck. He suggested isometric strengthening exercises and home activities such as lawn mowing and easy driving.
The ALJ conducted an evidentiary hearing in October 2008. Ms. Molnar testified that she had tried returning to work as an administrative assistant in 2006 but could not perform the job because she was unable to reach or tilt her head upward. She reported a need to move frequently and stated that she has difficulty bending because of pain in her lower back. Since her third neck surgery, she continued, she had experienced numbness in her hands and diminished strength in her arms. She cannot push or pull. During the day, she said, she lies down a lot. She reads, cares for her dogs and cats, shops for groceries, cooks, gardens and drives limited distances.
The ALJ called Dr. Harold Mills to testify as a medical expert. Dr. Mills opined that Ms. Molnar has severe cervical and, to a lesser extent, lumbar discogenic disease. Initially he said that Ms. Molnar’s disc disease met the elements in Listing 1.04(A) for a disabling disorder of the spine. But when the ALJ probed Dr. Mills about the criteria for meeting that listing and asked whether there was evidence of motor loss accompanied by sensory or reflex loss, the doctor responded that he could not give a specific answer and did not know Ms. Molnar’s current status. He conceded that he had “not recorded any specific evidence of motor loss” but recalled that in November 2005 and May 2008 she had experienced gait problems, which, he thought, indicated some motor loss. A.R. 261. He also noted that in November 2005 she had reported numbness in her hands. But all of those instances, he acknowledged, were before surgery. Ms. Molnar’s attorney did not follow up with additional questions about the listing or point out other evidence of motor loss.
The ALJ also heard from Sidney Bower, a vocational expert. He testified that a person with the restrictions imposed by Dr. Hinck could not perform Ms. Molnar’s past work. At first Bower said there were no jobs in the national or regional economy for a similarly restricted person of Ms. *286Molnar’s age, education and work history. But when the ALJ iterated that the hypothetical allowed for occasional trunk motion, frequent simple grasping, and driving, Bower revised his opinion to allow for work as a ticket taker, parking-lot attendant, optical lens matcher, or optical salvager. These jobs, Bower said, exist in substantial numbers in the regional economy.
The ALJ rejected Ms. Molnar’s claim using the standard five-step analysis. See 20 C.F.R. §§ 404.1520, 416.920. At step one the ALJ determined that she had not engaged in substantial gainful activity since her reported onset, and at step two that her degenerative disc disease of the cervical and lumbar spine with a history of multiple surgeries constitutes a severe impairment. At step three, the ALJ determined that Ms. Molnar’s impairment does not meet or equal a listed impairment, explaining that she did not meet Listing 1.04 because Dr. Mills had “emphasized that there was no evidence of motor loss.” A.R. 12. At step four the ALJ concluded that Ms. Molnar retained the residual functional capacity to do light work with the additional restrictions detailed by Dr. Hinck: no bending forward, climbing, crawling, or squatting; no rotating of the head or neck and only occasional rotation of the upper body and side bending; no reaching at or above shoulder level or working at unprotected heights, and no sitting for more than five hours during an eight-hour day or standing or walking for more than three hours in an eight-hour day. Here, the ALJ noted that medical evidence partly corroborated Ms. Molnar’s complaints of pain, though several progress notes from her physicians verified that she had improved and was doing well after her surgeries and epidural injections. The ALJ detected no evidence that Ms. Molnar’s condition had significantly worsened since early 2006 when she acknowledged to doctors a significant range of activities. Ms. Molnar had testified that she must lie down frequently throughout the day, but that testimony, the ALJ observed, was contradicted by the assessment of Dr. Hinck — Ms. Molnar’s treating physician — that she would not need to lie down during a typical workday. Finally, at step five, the ALJ concluded that Ms. Molnar could no longer perform her past work but could do other jobs and thus was not disabled. After the Social Security Appeals Council declined to review the decision, Ms. Molnar sought review in the district court. The district court upheld the decision of the ALJ.
Because the Appeals Council declined review-, the ALJ’s ruling is the final decision of the Commissioner of Social Security. Getch v. Astrue, 539 F.3d 473, 480 (7th Cir.2008). We will uphold that decision if it is supported by substantial evidence and rests on appropriate legal standards. See 42 U.S.C. § 405(g); Ketelboeter v. Astrue, 550 F.3d 620, 624 (7th Cir.2008). We will not reweigh the evidence or substitute our judgment for that of the ALJ. Ketelboeter, 550 F.3d at 624; Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir.2007).
Ms. Molnar first challenges the ALJ’s conclusion that her impairments do not meet Listing 1.04(A) for disorders of the spine. She contends that the ALJ disregarded an opinion from Dr. Mills that she did meet this listing and misstated his testimony in concluding that there was no evidence of motor loss. A claimant is presumed disabled if she has an impairment that meets or equals an impairment found in the Listing of Impairments. 20 C.F.R. §§ 404.1520(d); 404.1525(a); 20 C.F.R. Pt. 404, Subpt. P, App. 1. To meet Listing 1.04(A), a claimant must present evidence of a spine disorder that results in compromise of a nerve root or the spinal cord with “[ejvidence of nerve root compression characterized by neuro-anatomic distribu*287tion of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine).” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04(A). The listings note that an “[i]nability to walk on the heels or toes, to squat, or to arise from a squatting position, when appropriate, may be considered evidence of significant motor loss” as well as concrete evidence of atrophy in upper and lower extremities. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00(E)(1).
Whether an impairment meets a listing is a question reserved to the ALJ, and, thus, Dr. Mills’s opinion would not be entitled to special significance even if that opinion was as described by Ms. Molnar. See 20 C.F.R. § 404.1527(e)(2), (e)(3); Randolph v. Barnhart, 386 F.3d 835, 840 (8th Cir.2004); Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir.2000). Regardless, Ms. Molnar misrepresents the record by insisting that Dr. Mills opined that she met Listing 1.04(A). Dr. Mills thought so initially but retreated when questioned by the ALJ about the lack of evidence of motor loss, a key element of the listing. The purpose of the evidentiary hearing was to explore and test the medical records and opinions of the expert witnesses, see 20 C.F.R. §§ 405.320(a); 405.350, and that purpose was served here. Dr. Mills started with an incomplete assessment of the relevant evidence and revised his opinion when the ALJ drew his attention to a weakness in his evaluation.
Ms. Molnar argues, however, that the ALJ was patently wrong in saying that Dr. Mills had “emphasized” that there was no evidence of motor loss. A.R.12. She points to Dr. Mills’s mention of two medical reports showing evidence of gait problems and numbness in her hands in 2005 and gait problems again in 2008. Although the ALJ’s imprecise characterization perhaps overstates Dr. Mills’s testimony, the ALJ’s overall analysis on this point is nonetheless sound. Dr. Mills said he did not recall “any specific evidence of motor loss” and, recognizing that Ms. Molnar recently had experienced improvement, added that he did not know the current status of her symptoms. A.R. 261-62. Dr. Mills also confirmed that both mentions of gait problems and numbness in her hands had occurred before Ms. Molnar’s surgeries. The listings expressly required the ALJ to consider the effects of Ms. Molnar’s treatment, including surgery, on her ability to function. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00(1).
We review the ALJ’s opinion as a whole to give it the most sensible reading, Rice v. Barnhart, 384 F.3d 363, 369 (7th Cir.2004); Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir.2000), and later in her opinion the ALJ explained that the record shows Ms. Molnar made remarkable improvement after each surgery and epidural injection. This finding is supported by the medical evidence in the record: following her second cervical fusion surgery in 2005, Ms. Molnar walked with a normal gait and had full motor strength in her upper and lower extremities; following her 2006 lumbar fusion surgery, Ms. Molnar reported no back pain, could walk with a normal gait, had full strength in her lower extremities and could move her neck freely; and after her third cervical surgery in 2007, she had full strength and sensation in her upper extremities. Thus, reading the opinion as a whole, we conclude that the ALJ developed an “accurate and logical bridge” from the evidence to her conclusion that the medical record lacked sufficient evidence of motor loss to meet Listing 1.04(A). See Simila v. Astrue, 573 F.3d 503, 516-17 (7th Cir.2009); Berger v. Astrue, 516 F.3d 539, 544-45 (7th Cir.2008).
*288Second, Ms. Molnar challenges the ALJ’s decision to discount her complaints of pain and resulting limitations as not entirely credible and instead credits Dr. Hinck’s appraisal of her residual functional capacity. The ALJ was required to determine Ms. Molnar’s residual functional capacity by evaluating whether the “objective medical evidence and other evidence” was consistent with her subjective complaints of pain and alleged limitations. See 20 C.F.R. § 404.1529(a), (d)(3)-(4); Berger, 516 F.3d at 544. We will reject an ALJ’s credibility findings only if they are patently wrong. Schmidt v. Astrue, 496 F.3d 833, 843 (7th Cir.2007); Jens v. Barnhart, 347 F.3d 209, 213 (7th Cir.2003). Nonetheless, an ALJ must justify her credibility finding with specific reasons supported by the record after considering the claimant’s level of pain, medication, treatment, daily activities and limitations. 20 C.F.R. § 404.1529(c); Terry v. Astrue, 580 F.3d 471, 477 (7th Cir.2009).
Ms. Molnar contends that the ALJ discredited her complaints of pain based solely on the improvement she experienced after surgery and epidural injections and disregarded the possibility that her condition could worsen in the future. But the ALJ was permitted to consider the effectiveness of treatment, including surgery and epidural injections, in making her credibility determination. See 20 C.F.R. § 404.1529(c); Terry, 580 F.3d at 477. Ms. Molnar ignores the ALJ’s other reasons for not fully accepting her testimony: there is no evidence that her medications were ineffective or caused any debilitating side effects; Ms. Molnar testified that she performs a wide range of daily activities without significant difficulty given her reported level of pain; and the record includes no evidence that her condition had significantly deteriorated since 2006, when she first reported the range of her daily activities. The ALJ further noted that Ms. Molnar’s testimony that she needed to lie down frequently during the day was contradicted by the assessment of her own treating physician, to whom Dr. Mills deferred. The ALJ was permitted to consider whether Ms. Molnar’s daily activities are inconsistent with her alleged inability to work. See SSR 96 — 8p; Powers v. Apfel, 207 F.3d 431, 435 (7th Cir.2000). The ALJ did not overstate Ms. Molnar’s ability to perform daily activities but noted specifically that she was able to do, for example, only light household chores and light cooking. See Moss v. Astrue, 555 F.3d 556, 562 (7th Cir.2009); Powers, 207 F.3d at 435. Although the ALJ’s conclusion that there was no medical evidence that Ms. Molnar’s condition had significantly deteriorated since early 2006 may overlook Ms. Molnar’s third cervical surgery in 2008, Ms. Molnar’s physical limitations appear to have improved since early 2006 as a result of her lumbar surgery and, to a degree, her latest cervical surgery. Moreover, the ALJ was required to determine whether Ms. Molnar was under a current disability, see 20 C.F.R. § 416.905(a), and Ms. Molnar points to no medical evidence to support her contention that she “will likely require additional surgeries in the future.” Accordingly, the ALJ’s credibility determination was not patently wrong.
Finally, as a result of the adverse credibility finding, the ALJ fully credited Dr. Hinck’s assessment of Ms. Molnar’s residual functional capacity. Ms. Molnar complains that the ALJ should have credited Dr. Mills’s initial opinion that she is disabled and should have disregarded the opinion of Dr. Hinck. But Dr. Hinck was her treating physician, and his assessment of her work-related limitations was entitled to controlling weight if supported by objective medical evidence and consistent with other substantial evidence in the record. See 20 C.F.R. § 404.1527(d)(2); Moss, 555 F.3d at 560. Ms. Molnar does not identify any contradictory medical evidence or any *289other record evidence that undermines Dr. Hinck’s opinion. Nor does she identify any specific errors in the description of her residual functional capacity that the ALJ used in her questioning of the vocational expert. The ALJ appropriately questioned the vocational expert as to possible jobs that remained open to Ms. Molnar, and after clarification of the relevant work limitations, the vocational expert confirmed that four jobs exist in significant numbers in the regional economy that a person with Ms. Molnar’s limitations can perform. Ms. Molnar has thus failed to show that the ALJ’s residual functional capacity determination is unreasonable.
Accordingly, we AFFIRM the judgment of the district court.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480757/ | ORDER
Kurt Garbutt, a citizen of Belize, was found to be ineligible for cancellation of removal under 8 U.S.C. § 1229b(a)(3) after an immigration judge determined, applying this court’s precedent in Fernandez v. Mukasey, 544 F.3d 862 (7th Cir.2008), that his second state conviction for cocaine possession constituted an aggravated felony, as defined in 8 U.S.C. § 1101(a)(43)(B). After the Board of Immigration Appeals (BIA) affirmed the order of the judge, Garbutt petitioned for review arguing that we should overrule Fernandez. We declined to do so and denied his petition. See Garbutt v. Holder, 351 Fed.Appx. 106, 110-11 (7th Cir.2009) (citing Fernandez and United States v. Pacheco-Diaz, 506 F.3d 545 (7th Cir.2007)). Garbutt subsequently filed a petition for writ of certiorari with the Supreme Court. The writ was granted.
The Supreme Court vacated our judgment and remanded Garbutt’s petition for further consideration in light of its recent decision in Carachuri-Rosendo v. Holder, 560 U.S.-, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010). See Garbutt v. Holder, — U.S. -, 130 S.Ct. 3460, 3461, 177 L.Ed.2d 1050 (2010). Pursuant to Circuit Rule 54, *290we invited the parties to present their positions as to the action we should take. Both parties agree that we should remand the case to the BIA to revisit its denial of cancellation of removal because Carachuri-Rosendo effectively overturned our relevant holdings in Fernandez and Pacheco-Diaz.
We also agree. Under Carachuri-Rosendo, Garbutt’s second state possession conviction may no longer be considered an aggravated felony under 8 U.S.C. § 1101(a)(43)(B) because it was not based on the fact of a prior conviction. Thus, he is not ineligible for cancellation of removal under 8 U.S.C. § 1229b(a)(3).
Accordingly, the petition for review is GRANTED, and the case is REMANDED to the BIA for further proceedings consistent with this opinion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480758/ | ORDER
As part of an ongoing dispute involving a neighbor’s dog’s attack on his own dog, Antonio Gamble fired several rifle shots into his neighbor’s house. Gamble later pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and the district court sentenced him to 54 months’ imprisonment, above the applicable guidelines range of 24 to 30 months. Gamble filed a notice of appeal, but his appointed counsel cannot find any non-frivolous basis to challenge Gamble’s conviction or sentence and seeks permission to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Gamble has not responded to our invitation to comment on counsel’s motion. See Cir. R. 51(b). We limit our review to the issues identified in counsel’s facially adequate brief. United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
In the presentence investigation report, the probation officer assessed Gamble’s base offense level at 14, U.S.S.G. § 2K2.1(a)(6)(A); added 4 levels because Gamble fired his rifle into an occupied home, thereby committing the felony of*291fense of aggravated discharge of a firearm, 720 ILCS 5/24-1.2(a)(2), U.S.S.G. § 2K2.1(b)(6); and subtracted 3 levels for Gamble’s timely acceptance of responsibility, see id. § 3E1.1, for a total offense level of 15. Gamble’s prior convictions resulted in a criminal history category of III. See id. § 4Al.l(c), (d). The total offense level of 15 and criminal history category of III yielded a guidelines imprisonment range of 24 to 30 months.
At sentencing the government argued for an 8-level increase under U.S.S.G. § 5K2.0(a)(2)(A), (a)(3) on the grounds that the 4-level increase under § 2K2.1(b)(6) insufficiently captured the severity of Gamble’s conduct. According to the government, § 2K2.1(b)(6), which applies if the defendant “used or possessed any firearm or ammunition in connection with another felony offense,” would apply to any felony in which Gamble possessed or used the rifle. But Gamble’s conduct in the present case, the government argued, was particularly egregious and warranted harsher punishment: Gamble had blindly fired 7 to 10 gunshots into a house he knew to be occupied and several minutes later then fired an additional volley of gunshots into the house — two separate, dangerous episodes. The record also reflected that Gamble involved his stepson in the matter, first by bringing him to the house — subjecting him to the possible danger of return gunfire — and later by falsely identifying him to the police as the source of the second volley of gunshots. The government argued that the Sentencing Commission specifically added § 5K2.0 to allow the district court to consider such exceptional aggravating circumstances.
Gamble opposed the proposed 8-level increase, arguing that any increase beyond the 4 levels prescribed by § 2K2.1(b)(6) would be double counting because it would further enhance the guidelines range (and his sentence) for conduct already reflected by the § 2K2.1(b)(6) increase. The district court heard argument from both sides; then, citing its agreement with the government that the 4-level increase under § 2K2.1(b)(6) insufficiently embraced the severity of Gamble’s conduct, the court decided to adjust the guidelines range upward 6 levels to reflect the seriousness of Gamble’s conduct. Coupled with Gamble’s criminal history category of III, this yielded a guidelines range of 46 to 57 months’ imprisonment, and the court sentenced Gamble to a 54-month term.
As an initial matter, counsel has determined that Gamble does not wish to withdraw his guilty plea and wishes to challenge only his sentence, so counsel properly refrains from discussing potential issues concerning the voluntariness of the plea or the adequacy of the plea colloquy. United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002).
Counsel first considers whether Gamble could mount any procedural challenge to his sentencing, Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); see United States v. Jackson, 547 F.3d 786, 792 (7th Cir.2008), cert. denied, - U.S. -, 129 S.Ct. 1538, 173 L.Ed.2d 666 (2009), and specifically considers whether Gamble might renew his argument that the district court’s sentence included impermissible double counting. The defense had argued at sentencing that § 2K2.1(b)(6)’s 4-level increase fully captured the seriousness of Gamble’s conduct, and that any upward departure under § 5K2.0 would be impermissible double counting.
But double counting occurs only when, in the context of determining the properly calculated guidelines range, the district court imposes two different increases based on identical facts or conduct. See United States v. Diekemper, 604 F.3d 345, *292354-55 (7th Cir.2010). A district court does not engage in impermissible double counting when it disagrees with the Sentencing Commission’s policies behind certain guidelines; we have made clear that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), rendered the concept of departures obsolete and that district courts may apply the departure guidelines by way of analogy in analyzing the 18 U.S.C. § 3553(a) factors at sentencing. See United States v. Johnson, 612 F.3d 889, 896-97 (7th Cir.2010); United States v. Miranda, 505 F.3d 785, 792 (7th Cir.2007). Here, after weighing the § 3553(a) factors, the district court acted within its discretion by deciding that the 4-level increase under § 2K2.1 (b)(6) did not capture the severity of Gamble’s conduct. See United States v. Corner, 598 F.3d 411, 415 (7th Cir.2010) (en banc) (“So long as a district judge acts reasonably ... the Sentencing Commission’s policies are not binding.”). Any argument to the contrary would be frivolous.
Counsel also considers whether the court’s 54-month sentence, which is 24 months above the top end of Gamble’s guidelines range, is unreasonably high. But we would uphold as reasonable an above-guidelines sentence as long as the district court applied the factors set forth in § 3553(a) and adequately explained its reasons for imposing the sentence. See United States v. Hurt, 574 F.3d 439, 442 (7th Cir.2009), cert. denied, — U.S.-, 130 S.Ct. 1923, 176 L.Ed.2d 393 (2010); United States v. Wise, 556 F.3d 629, 632-33 (7th Cir.2009); United States v. Tockes, 530 F.3d 628, 632 (7th Cir.2008). As counsel correctly concludes, any argument that Gamble’s sentence was substantively unreasonable would be frivolous. The court recounted Gamble’s criminal history, his documented problems with uncontrolled anger, his initial involvement of his stepson in the crime, and the danger to the public. The court also considered Gamble’s troubled childhood and his timely acceptance of responsibility, but concluded that an above-guidelines sentence would better capture the severity of Gamble’s conduct, permit him to receive counseling to control his anger, protect the public from his volatile temper, and best deter him from future criminal behavior.
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/8480759/ | ORDER
In 2006, Demond Knight pleaded guilty to possessing an unregistered firearm, 26 U.S.C. § 5861(d), and was sentenced to 30 months’ imprisonment and 24 months’ supervised release. Knight left prison in May 2008 and began serving his term of supervision, but he soon thereafter violated the conditions of his release. Knight’s probation officer finally petitioned for revocation in May 2009, but Knight absconded and was not caught for another year. At the revocation hearing he admitted every violation alleged in the petition to revoke, including possessing marijuana, skipping out on drug treatment and testing, driving while his license was revoked, and not reporting to his probation officer. The district court revoked his supervision and ordered Knight to serve an additional 24 months’ imprisonment with no additional supervised release. Knight filed a notice of appeal, but his appointed lawyer has concluded that the case is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Knight has not responded to our invitation to comment on counsel’s submission. See Cir. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Counsel first evaluates whether Knight could argue that revoking his supervision was an abuse of discretion. Yet Knight has not signaled that he wants the revocation set aside, and we recently held in United States v. Wheaton, 610 F.3d 389, 390 (7th Cir.2010), that potential challenges to a revocation of supervised release should not be explored in an Anders submission unless the defendant wants the revocation set aside. In any event, a challenge to the decision to revoke would be frivolous because revocation was mandatory after Knight admitted to possessing marijuana. See 18 U.S.C. § 3583(g)(1); United States v. Hondras, 296 F.3d 601, 602 (7th Cir.2002).
Counsel also questions whether Knight could argue that his 24-month term of reimprisonment is plainly unreasonable. See United States v. Kizeart, 505 F.3d 672, 674 (7th Cir.2007). The further incarceration was not a surprise; the first time Knight was caught using marijuana, the judge warned him that another episode would land him back in prison. And we agree with counsel that any dispute about the length of the term would be frivolous, even though it exceeds the range of 5 to 11 months contemplated by the policy statements for Knight’s drug possession, his most-serious violation. See U.S.S.G. §§ 7B1.1, 7B1.4(a); 18 U.S.C. § 3583(e)(3); United States v. Trotter, 270 F.3d 1150, 1151 (7th Cir.2001). The court had selected 24 months only after assessing the nature and severity of Knight’s violations and taking stock of the guidelines range and the sentencing factors in 18 U.S.C. § 3553(a). The court had also heard allocution from both Knight and his lawyer. These steps would satisfy us that the term imposed is not plainly unreasonable. See United States v. Neal, 512 F.3d 427, 438 (7th Cir.2008); United States v. Pitre, 504 F.3d 657, 664 (7th Cir.2007).
Finally, counsel assumes that Knight might be able to raise a claim of ineffective assistance. Defendants have a right to *294counsel in revocation proceedings, Fed. R. Crim. P. 32.1; United States v. Eskridge, 445 F.3d 930, 933 (7th Cir.2006); but this right is not constitutional (and thus cannot support a claim of ineffective assistance) unless the defendant denies the alleged violations or offers a substantial argument in mitigation, Eskridge, 445 F.3d at 932-33. Knight did neither. In any event, appellate counsel also represented Knight in the district court and appropriately acknowledges that, if there is a claim about her performance, it should be argued by Knight or a different lawyer in a collateral proceeding. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Martinez, 169 F.3d 1049, 1052 (7th Cir.1999).
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/8480762/ | PER CURIAM.
Inmate Johnny Tarkington appeals the district court’s1 adverse grant of summary judgment in his 42 U.S.C. § 1983 action. *308As to the claims Tarkington has not abandoned on appeal, see Carraher v. Target Corp., 503 F.3d 714, 716 n. 2 (8th Cir.2007), we find that summary judgment was properly granted for the reasons stated by the district court, see Popoalii v. Corr. Med. Servs., 512 F.3d 488, 499 (8th Cir.2008) (de novo standard of review). Accordingly, we affirm. See 8th Cir. R. 47B.
. The Honorable J. Leon Holmes, Chief Judge, United States District Court for the Eastern District of Arkansas, adopting the report and recommendations of the Honorable Henry L. Jones, Jr., United States Magistrate Judge for the Eastern District of Arkansas, now retired. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480763/ | MEMORANDUM **
Donye Maurice Sullivan appeals from his guilty-plea conviction and 24-month sentence for unauthorized use of access device obtain $1,000 or more, in violation of 18 U.S.C. § 1029(a)(2). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Sullivan’s 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 brief. No pro se supplemental brief or 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. We dismiss in light of the valid appeal waiver. See United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir.2000).
*335Counsel’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/8481644/ | Robertson, J.
delivered the opinion of the court :
It is well settled that a negro, claimed and held as a slave, cannot litigate his right to freedom under a writ of habeas corpus. In this case, however, the petitioner *260produces Ms papers showing, on their face, that he has been regularly emancipated, and registered as a free negro: and it appears upon the return and evidence, that those holding him in custody do not claim him as their slave, but that he is held by virtue of an execution levied for the purpose of subjecting him to a debt due from A. Hanna.
The matter in controversy is not whether the petitioner is a freeman or a slave: but whether, as an emancipated negro, he is liable for a debt of Hanna, his former owner — that is to say, whether, being free, he is subject to a lien, the enforcement of which may have the effect of reducing him again to the condition of slavery.
In Ruddle's ex'or v. Ben, 10 Leigh 467, it was held that a writ of habeas comfits is an appropriate remedy in such case.
This decision, however, was made by a court composed of three judges only, one of whom dissented; and so is not of binding authority. But I think that the decision of the majority, upcni this question, was right: and the reasons given by Judge Parker in support of- it, are so clear and forcible, that I cannot do better than refer to that portion of his opinion, expressing my entire concurrence in the views presented by him, upon this point.
It becomes necessary, therefore, to determine whether or not the petitioner has been so emancipated as to exempt him from liability for the debt, the execution for which has been levied upon him.
It has, in the argument here, been objected that the facts upon which the petitioner relies are not sufficiently proved, because the contract which Hanna (according to his impression) executed and delivered, the various letters referred to as having been received by him from Dismuth, and the original bill of sale to Marshall, have not been produced; nor has their ab*261sence been satisfactorily accounted for, so as to render secondary evidence of their contents admissible.
There can be no doubt that if objection had been made before the judge of the Circuit court to the admission of this secondary evidence, it must have prevailed. But an opportunity would then have been afforded the petitioner to remove it, either by the production of the papers, or by accounting for their non-production, so as to render proof of their contents proper. By its being taken for the first time in this court, the petitioner is deprived of that opportunity. The objection must therefore be overruled, and the facts stated in the bill of exceptions regarded as sufficiently proved.
The petitioner does not seem to me to stand in a better position, in any respect, than he would occupy if Hanna, on being reimbursed the amount advanced by him to Dismuth, had himself executed the deed of emancipation. The act was in truth substantially his: and the indirect mode of effecting it which was adopted, coupled with the false considerations recited in the bill of sale to Marshall, and in Marshall’s deed of emancipation, are calculated to create doubts as to the fairness of the transaction. But I think that the inference of fraud which might be drawn from these circumstances is abundantly repelled by the other facts of the case. These facts show that there was no design on the part of Hanna to defraud any one; and that his sole purpose was to carry out honestly the contract between Dismuth and himself. He had neither obtained nor sought credit on the faith of his property in the petitioner; having given public notice, in the neighborhood, of the agreement under which he held him, as soon as it was made. Nor was his ability to discharge his debts in the slightest degree affected by all that he did in reference to the petitioner : for, before he caused him to be emancipated, *262he had received back every dollar that he had advanced. Hanna’s creditors therefore have no right to complain that they have been in any manner defrauded. If they can subject the petitioner to their claims, it is only by virtue of a mere legal right arising out of the peculiar mode of emancipation which was adopted by Dismuth and Hanna. I speak of the emancipation as their joint act, for it should in fact be so regarded. Hanna indeed did less towards the liberation of the petitioner than Dismuth: for to effect it Dismuth contributed half of his value; while Hanna contributed nothing, save the trouble he took upon himself, and the risk he encountered of not being reimbursed the amount of his advance to Dismuth.
In examining the question as to the validity of the claim of the creditors of Hanna, I utterly repudiate the idea that I should, on the one hand, give a more liberal construction to the rights of the petitioner, in favor of liberty; or, on the other, that I should applj a stricter rule, because I may think that emancipation in this state ought not to be encouraged. I propose to adopt precisely the same rules of construction and decision that would apply to any other question of legal right, leaning neither to the one side nor the other.
It is objected, that the deed of emancipation has not been duly recorded, because Marshall was a citizen of Ohio, residing temporarily only in the county of Rockingham. •
The deed describes him as being of the county of Rockingham, and it is admitted to record in that county, upon his acknowledgment before the clerk. This affords, I think, sufficient evidence that for the time, and within the meaning of the law, Rocking-ham was “ his county.” If the objection be valid, no person can emancipate a slave in Virginia, unless he has a fixed and permanent residence within the state. *263Such cannot be the proper construction of the law. The cases of Cales v. Miller, 8 Graft. 6, and Hassler’s lessee v. King, 9 Gratt. 115, would seem to remove all doubt on this question, if indeed any existed.
To determine whether the execution of such a contract as that between Bismuth and Hanna, by the emancipation of the slave pursuant to it, confers upon him a right to freedom superior to the claims of the creditors of the party executing the deed of emancipation, it is proper to examine into the nature of the contract, and ascertain whether it is valid and capable of being enforced.
Hanna supposed that it bound him “in conscience and morality” only.- but if the facts stated by him show that it was legally binding also, his opinion to the contrary cannot affect its validity.
There was a valuable consideration moving from Bismuth to sustain the contract. He gave up half the value of the slave in consideration of the promise to emancipate. If then it was not binding between Bismuth and Hanna, it must be upon some other ground of objection to it than the want of sufficient consideration. There has been no adjudication in Virginia settling the question as to the validity of such a contract: but similar contracts have been passed upon by the courts of some of the other states of the Union.
In Tennessee, it has been held that such contracts are valid; and that they will be enforced, not only upon the application of one of the contracting parties, but also on that of the slave himself, or of any person whatever who may choose to petition for and on behalf of the slave. Elias v. Smith, 6 Humph. R. 33; Lewis v. Simonton, 8 Humph. R. 185 — the latter of which cases even goes so far as to declare that a contract for emancipation made between a master and his slave is valid and enforceable.
In Louisiana, prior to the act of 1857 (which prohi*264bits emancipation in that state), a slave could make a contract relating to his own emancipation, although incapable of making a contract of any other kind. But in a case in which a testator had directed that his slaves should be sold together with the plantations on which they were employed, and that the purchaser should keep them on and attached to said plantations for a certain number of years, and then emancipate them — the slaves having been sold pursuant to the will, and upon the conditions required by it — the purchaser, before the time for emancipation had arrived, was proceeding to sell the slaves to different persons, to be removed from the plantations on which they were; and it was held that the court could not, on the application of the slaves themselves, interfere to prevent it. A suit was then brought by the heir of the testator, as representing his estate, for the purpose of enforcing the terms of the contract; and it was held that the purchaser was bound to comply with it, and a decree rendered accordingly. In delivering the opinion of the court, Martin, J. said:
“Justice requires that the defendant should not be permitted to disregard the obligation she has solemnly contracted. But it is urged that the terms and conditions of the will which are now sought to be enforced, are null and void, as destructive of the absolute power which sound policy and the laws of the land require the master should exercise over his slaves.
“ So far as regards the slaves, the power of the master is indeed absolute. The slave cannot resist, or be heard if he complain of the abuse of this power: but in relation to other persons, nothing prevents the master from being compelled or coerced to comply with his engagements as vendee, which he contracted when he acquired his slave.” Poydras v. Mourain, 9 Louis. R. 492, 505.
In Maryland, in a case where it appeared that a *265slave was sold for a term of years, with a power to the vendee to emancipate him at the end of the term, and that the vendor, before its expiration, sold him to another person, who got possession of him and held him in slavery, it was decided that the slave was entitled to recover his freedom, under a deed of emancipation, executed in his favor, by the first vendee, after the expiration of the term. Negro Cato v. Howard, 2 Harr. & John. R. 323.
In Kentuclcy (whose statutes in reference to the recordation of deeds of emancipation, and the prohibition of slaves from going at large and trading as freemen, are almost identical with our own), it has been decided that a contract such as the one now under consideration cannot be enforced at the suit of the slave; but that a specific performance of it will be decreed at the suit of the original owner, who contracted with his vendee for the future emancipation of the slave. Beall v. Joseph (a negro), Hardin’s R. 51; Thompson, v. Wilmot, 1 Bibb’s R. 422; Willis v. Bruce & Warfield, 8 B. Monr. R. 548; Gatliffe’s adm'r v. Rose, 8 B. Monr. R. 629.
I have referred to these cases as showing the view that has been taken of this question in states with institutions similar to our own. The decisions are of course to be regarded as authority here only so far as they may commend themselves by the reasons upon which they are founded. It is proper, therefore, that we should examine the question as an original one.
It is well settled that a contract between a master and his slave, for the future emancipation of the slave, cannot be enforced against the master, although it may have been fully performed on the part of the slave. Sawney v. Carter, 6 Rand. 173; Stevenson v. Singleton, 1 Leigh 72.
It seems to me too to be equally clear that a slave who has, under such a contract, paid his master the *266stipulated pi'ice for his freedom, aud who has been actually emancipated in consequence thereof, is liable to be subjected to the payment of any debt of his master, existing at the time of his emancipation. This is so, because the emancipation in such case is vvithout any valid considei'ation — the price paid by the slave not constituting such consideration, inasmuch as not only the slave himself, but every thing made by or belonging to him, is in law the property of his master.
It is true, that the opinion of a majority of the court, in Ruddle's ex'or v. Ben, appears to be in conflict with this view: but, as has been already stated, that case is not binding as authority; and the decision in this l’espect (as indeed is shown by Judge Tucker, who dissented on this point) is so opposed to the necessary consequences resulting from the relation of master and slave, that it cannot be regarded as law.
I think further, that a slave cannot, while remaining ,in the condition of slavery, enforce a contract which may have been made by-other persons for his benefit. If, therefore, Hanna had refused to comply with his contract with Dismuth, the petitioner could not by any legal proceeding have compelled him to do so. But it does not follow that the contract could not have been enforced by Dismuth.
It will hardly be contended that Dismuth could not enfoi’ce a contract with Hanna, by which Hanna, having paid him a certain sum as the hire of his slave, bound himself that as soon as he received an equal amount from the proceeds of the labor of the slave, he should be returned to Dismuth, or delivered up to any person to whom Dismuth might order him to be delivered. And if such a contract as the one supposed would be valid and binding, it is difficult to perceive why a contract that the slave, instead of being returned to Dismuth, or delivered to his order, at the time agreed upon, should be emancipated, would not *267also be valid and enforceable by Bismuth, unless indeed it can be made to appear that such a contract is illegal.
Accordingly, a strenuous effort has been made, in the argument of the case, to show that such a contract is contrary to the policy of our law, and therefore void. It is insisted that it tends to destroy the proper relation between master and slave; and that by putting the slave in a position in which the fruits of his labor, instead of belonging absolutely to his master, are applied towards his own emancipation, he is made to occupy that intermediate condition between freedom and slavery that the law does not tolerate: And it must be admitted that this argument is not without force.
If, however, any contract of this character can ever be, this one is, free from the objection that the slave is put in a condition between freedom and slavery. The petitioner does not appear to have been even privy to it. He was kept until his emancipation in a state of entire servitude, not being permitted to make any contract, or to act in any respect as a freeman, Hanna having shown extreme caution in avoiding any infringement of the laws prohibiting slaves from going at large or hiring themselves out.
The objection then does not apply in this instance more forcibly than it does in all cases of prospective emancipation: and to sustain it, we must go to the length of establishing a principle which will prohibit all such emancipations. This we cannot do; for whatever may be our opinion as to the policy of permitting them, we have no right to change the law; and their validity is now too well settled to be questioned.
I think, therefore, that this contract is not void as being against public policy; and that it is one which a court of equity would, on the application of Bis*268mutk, have enforced against Hanna, if he had refused to execute it.
As Hanna has voluntarily complied with the obligation of his contract, the petitioner is placed in the same position that he would have occupied if he had been emancipated under a decree of a court of equity in a suit brought by Dismuth against Hanna. He is a freedman, and as such, is entitled to litigate with the creditors of Hanna their right to subject him to sale to satisfy their demands.
The question does not arise in this case as to the extent of the rights of the creditor if he had acquired a lien upon the petitioner by issuing or levying his execution before Hanna had been reimbursed the amount advanced by him ; and I express no opinion upon it.
Upon the facts as they exist, I think that the emancipation was effectual to exempt the petitioner from all liability for the debt, the execution for which has been levied upon him; and that he ought to have been discharged from custody. I am therefore of opinion to reverse the judgment.
Lee, J.
I am of opinion that the writ of habeas corpus is not the appropriate remedy for the assertion of the right to freedom claimed by the plaintiff in this case. It is true it was sustained by the opinion of two of the three judges who sat in the case of Buddle's ex'or v. Ben, 10 Leigh 467, but the reasons on which it was rested are to my mind quite unsatisfactory. That the claimant produces a deed of emancipation cannot, as it seems to me, change the remedy for the enforcement of the right which it is alleged to confer, and it is conceded that in general this right cannot be litigated upon a writ of habeas corpus; and although those who claim his custody, do not claim as masters that he is their slave, they do claim that to *269them the deed of emancipation is ineffectual and that they have the right to treat him as property and subject to be sold as the slave of the debtor party. The question at last is one of freedom or slavery, absolute freedom or qualified slavery, and should be tried in a more convenient and appropriate proceeding than a habeas corpus. If the deed were assailed upon the ground that it was a forgery and was admitted to record by fraud, or was wholly invalid by reason of the insanity of the grantor or because he was otherwise incapable of making the same, I presume the writ of habeas corpus could not be regarded as a proper proceeding to try the right; and I cannot perceive that the case is different if the deed be contested upon the ground that it was made with intent to defraud creditors or because it was wholly ineffectual as to a creditor whose debt was created before it was executed. The detention grows out of the alleged status of the party as it respects the claimants under the execution ; they allege that as to them he is still a slave and liable to satisfy the debt; and although they do not claim absolute property in him as masters, yet the claim which they do make is such as should render them liable to the action provided by the statute. And moreover, no reason is perceived why the party might not resort to the court of equity for an injunction upon the ground that he was not liable to the execution. The owner of a slave levied upon by an execution to which he was not liable may enjoin the sale and obtain relief upon that ground, simply, without alleging any special reason for invoking the aid of a court of equity, and the case of a freedman would certainly not be less strong where the aid of that court is sought for his protection.
I concur therefore in what appears to have been the opinion of Judge Stanard in the case above cited, and -of the judge who decided this case, and think that the *270writ was inappropriate to the petitioner’s case, and on that ground was properly dismissed.
XJpon the merits also, I find myself compelled to dissent from the opinion of the majority of the court.
By the Code of Virginia (ch. 103, § 11, p. 459) it is provided that all slaves emancipated shall be liable for any debt contracted by the person emancipating them before such emancipation was made; and it can scarcely be questioned that whether the emancipation be made by an indebted owner, directly, or indirectly, through the agency of another for the purpose of preventing the liability for debts, the effect must be the same. Such indirect emancipation with such purpose would be plainly in fraudem, legis, and would be as to antecedent creditors as utterly void and ineffectual as any other conveyance made with 1 'tent to hinder delay and defraud them. And such ii \my judgment is the true character of the emancipate m in this case. Hanna the owner of the petitioner at the time of making the conveyance to Marshall by whom the deed of emancipation was executed, was largely indebted both as principal and security and was doubtless insolvent; in the month of January previous he had executed a deed of trust upon all his property “ of every kind and description” for the security of his creditors and sureties; a large amount of property is designated in the deed, but the petitioner was not specially mentioned because as he states, he was advised by his counsel not to embrace him in the deed; the deed to Marshall was executed on the 26th day of March 1859 just three days before the note on which the judgment now sought to be enforced was rendered fell due; this deed recites falsely that it was in consideration of the sum of three hundred and fifty dollars paid by Marshall whilst Hanna himself admitted on the trial of the cause that the amount actually paid was a sum some where between twenty-one and twenty-five dol*271lars only $ Marshall the grantee was a citizen of a free state on a visit to a son in law in Eockingham county and was about to return to the state in which he lived; and in May 1859, less than two months after the deed to him, and pending the suit on the note against Hanna, Marshall executes the deed of emancipation reciting falsely that it was in part consideration of the sum of three hundred and fifty dollars to him in hand paid. ' Considering all the circumstances of the transaction I cannot resist the conclusion that it was a plan concerted between Hanna and Marshall to enable the former to defeat the claims of creditors and to do that indirectly which Hanna believed he could not do by a direct emancipation executed by himself. It is true Hanna states that this was done in consequence of an agreement or understanding with Dismuth of whom he purchased the petitioner which however he thought only binding upon him in conscience and morality, that when he had realized the amount he had paid for him out of the wages and earnings of the petitioner, he was to emancipate him, and that when he sold him to Marshall, he had received in that way the amount of the purchase money excepting the sum agreed to he paid by Marshall, and that there was a similar understanding with Marshall that when he should have received that amount from the earnings of the petitioner, he was to set him free.
But I cannot think that such a private unrecorded agreement, even if it should be held to be valid as between the parties, would be binding upon the creditors of the vendee or would at all affect their right to subject the slave in his hands to the payment of their debts. He is at law the property of the vendee and as such subject to his debts to his full value, and no court I apprehend, would at the suit of either slave or original vendor entertain a bill to set up such secret-agreement against creditors and enquire how much of *272the purchase money had been reimbursed to the vendee out of the earnings of the slave whilst in his possession.
I do not understand that it is claimed in the opinion of my brother Robertson that the emancipation in this case acquired any additional validity under the circumstances of the transaction from the fact that the deed was executed by Marshall and not by Hanna himself. On the contrary it seems to be fully conceded that the petitioner stands in no better position, in any respect, than he would occupy if Hanna on being reimbursed the amount paid by him to Dismuth, had himself executed the deed of emancipation. What then would have been the condition of the petitioner if the deed had been executed by Hanna ?
By our law as we have seen, an emancipated slave is liable for any debt contracted by the owner before the emancipation, and the debt in this case had been contracted before the deed was executed, and perhaps (though, this is left somewhat uncertain) before the agreement with Dismuth. But it is said that as the deed was executed before the creditor had acquired or could acquire any specific lien upon the property by the levy of an execution upon it, the emancipation is good and the liability created by the statute is controlled and in effect overrode by the private agreement between the owner and his vendor and the execution of the deed of emancipation under it, and that the petitioner is therefore entitled to his discharge. This is in effect to assert that the petitioner acquired an inchoate right to freedom under the contract between Dismuth and Hanna which was afterwards consummated by the deed of emancipation executed by Marshall, and that as this deed was before the actual levy of the fieri facias the creditor’s right was forestalled and defeated. I think neither of these propositions can be maintained. It has been solemnly declared as *273the opinion of this court, that a slave has no social or civil rights, that he has no legal capacity to make or rescind a contract, and that he is without remedy for breach of an agreement, even for his emancipation. And it was accordingly held in two successive cases, after great consideration, that where in a will emancipation of a slave was made to depend upon his election to be free, as he had no legal capacity to make an election the clause declaring such emancipation was of necessity void and of no effect. Bailey, &c. v. Poindexter, &c. 14 Gratt. 132; Williamson, &c. v. Coalter's ex'ors, Ibid. 394. This want of legal capacity had been repeatedly and distinctly affirmed in previous cases; indeed it must be of necessity a distinctive feature and characteristic of the status of slavery. It therefore seems to be very clear that a slave can acquire no right whatever under such a contract between the former owner and his vendee; and what he cannot thus acquire directly, he cannot take indirectly through his former owner. In Dunlop v. Harrison, 14 Gratt. 251, it was held that as free negroes were prohibited by statute from holding slaves, so they could not be held by another in trust for their benefit. Bo as a slave can acquire no property directly neither can he acquire any interest in the same by way of trust. Haywood v. Craven's ex'or, 2 Caro. L. R. 557. See also, Trotter v. Blocher, 6 Port. R. 269, 305. It would be in direct contravention of this principle if a slave could acquire any interest under a contract between his master and his vendee touching his future emancipation which could strengthen such emancipation when made or give to it any additional force and effect to that which it would have without such previous contract. And if this be correct it cannot be right to hold that pre-existing creditors are shut off because they had not .levied their execution before the deed was exe*274euted. The right to subject the property is expressly reserved by the statute and does not depend iipon the levy of the execution. There was no necessity for any such provision where an execution had been levied; the object of the act was to hold the slave bound for pre-existing debts where there was no lien by execution or otherwise. Unless therefore this supposed equity in favor of the vendor is to enure to the benefit of the slave, it is impossible to say that it can deprive the creditors of the right to subject the slave which they certainly would have had if there were nothing but the deed of emancipation in their way.
Let us now look a little more closely into the alleged agreement between Dismuth and Hanna. And here the first observation that occurs is upon the very unsatisfactory nature of the evidence by which it is attempted to be proved. Hanna himself is the only witness offered and he speaks of a bill of sale and of the agreement by which he was to emancipate the .petitioner when he should be repaid the three hundred and fifty dollars which he agreed to give for him out of his earnings; and he states that according to his impression, speaking of what had occurred only between two and three years before, he executed and delivered a writing containing the terms of the agreement. Neither the bill of sale, nor this writing nor any of the various letters which he said he had received from Dismuth on the subject is produced, nor any reason assigned for their non-production except that he did not know where the written contract which it was his impression he had executed, then was. He does not say he had lost the bill of sale or the letters he had received from Dismuth, nor does he undertake to state the terms and conditions, if any, of the former. The case was not submitted to a jury but was heard upon the law and the facts by the judge, and he no doubt *275thought the evidence very unsatisfactory. But if it were less so, I incline to think that such a contract is liable to very grave objections and that its validity should not be maintained for any purpose whatever. I am aware that in some of our sister states similar contracts have been held valid, and in Tennessee, they have gone so far as to hold that such a contract should be enforced not only at the suit of one of the contracting parties but of any other person who may come forward as next friend of the slave; and that a contract between a master and his slave for the emancipation of the latter is good and may be enforced. Elias v. Smith, 6 Humph. R. 33; Lewis v. Simonton, 8 Humph. R. 185. But I am aware of no case in Virginia in which such a.contract has been enforced or held valid. A contract between a master and his slave for the future emancipation of the slave is utterly void and cannot be enforced against the master although the slave may have fully complied with his part of the agreement; Sawney v. Carter, 6 Rand. 179; Stephenson v. Singleton, 1 Leigh 72; nor has a contract between vendor and vendee of a slave for the future emancipation of the slave, as far as I am aware, ever been sanctioned except so far as it may be supposed to be countenanced by the case of Ruddle's ex'or v. Ben, above cited. Of that case it may be remarked that while Judge Tucker concurred with Judge Parker in thinking the writ of habeas corpus the appropriate remedy, yet upon the merits, he was for remanding the petitioner to the custody of the sheriff for proceedings under the execution; and that Judge Stanard while he concurred with Judge Parker upon the merits had strong doubt whether the writ should not have been dismissed and the prisoner remanded because the remedy was inappropriate. Certainly it is not a binding authority upon any point, and if it is to be understood as *276affirming that such a contract can give any additional efficacy and effect to a deed of emancipation executed in conformity to it as against creditors that it would not have without it, I am constrained to dissent as much from the doctrine of law which it teaches as I do from the sentiment expressed by Judge Parker that the dictates of humanity and justice should prompt us to favor emancipation by maintaining the right of the master to bestow (and of course the capacity of the slave to receive) the privilege of acquiring property to serve as a foundation for a consideration which will support what the judge calls “ the inestimable grant of freedom.”
Such a contract for the future emancipation of a slave when the price paid shall be reimbursed out of his earnings, is I think, opposed to the general spirit of our decisions and the policy of our laws. The distinction which it implies between the slave himself and his earnings is no where recognized by them. They admit no separate interests between master and slave. The latter is to be wholly devoted to the interests of the former. Such arrangement is evasive of the provision of our statute which makes it a misdemeanor to permit a slave to go at large, trade for himself, or hire himself out for the benefit of any person whatever, if not also of that prohibiting a freed negro to l-emain in the state. The presence of the negro in this intermediate condition, this half way house, between freedom and slavery so plainly condemned by our law, is fraught with all or most of the evils which have rendered the departure from the state of the freed negro the imperative condition of his emancipation.
I think it is to be regretted that prospective emancipation was ever tolerated by the courts in Virginia, but its validity has been, perhaps, too often affirmed *277to be drawn into question at this day. But where it has been sustained, it has been declared by will or deed duly recorded, as the law requires. The proposition here goes a bow shot beyond any previous case sustaining a prospective emancipation. It is in effect to declare such emancipation good, though not declared by will or deed admitted to record, but founded only upon a private agreement between the vendor and vendee of a slave under seal or otherwise and never admitted to record, and in which the slave has and can have no legal interest whatever; and this not only as between the parties but as against the creditors of the vendee whose debts were created before the deed of emancipation subsequently made was executed and recorded.
If such an agreement is to be held valid and enforced, its effect should be restricted to the parties themselves. It should not extend to the creditors of the vendee. To give it effect as to them is to defeat the plain intent of our statute. 'In none of the cases cited by the counsel that I have been able to see, was the controversy between the slave and a creditor of the vendee. They were all cases between the original parties to the agreement or between the slave or those claiming by purchase: nor does it appear from those cases that in the states in which they occurred there was a statutory provision like ours, in favor of creditors. At best such a contract, as it seems to me, can only confer a right upon the vendor to recover damages for its breach against the vendee, and a mere equity to call for its specific performance ; and this equity being in its nature a secret equity founded upon an agreement not recorded and the possession of the slave being with the vendee, it would as it seems to me, be against all the analogies of the law, to give it priority to the claims of creditors who became such before it *278was effectuated by the execution of the deed of emancipation ; and such deed in my judgment ought to have no other or greater efficacy as against pre-existing creditors than if it had been executed without any such previous agreement.
I think the judge below did not err in remanding the petitioner to the custody of the sheriff, and am of opinion to affirm the judgment.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481645/ | Allen, P.
delivered the opinion of the court:
This is a supersedeas to a judgment of the Circuit court reversing a judgment of the County court in favor of the plaintiff in error Alderson, upon a summons for unlawful detainer sued out against him by the defendant in error Miller. Such a proceeding involves no question of title, the question being whether the plaintiff is, as against the defendant, entitled to the possession, although for the purpose of determining who is so entitled to the possession, the title may be given in evidence. In the case under consideration, it does not appear that Miller gave any evidence of title on the trial. He seems, from the statement in the first bill of exceptions, to have rested his right to recover upon his character of landlord, seek*282ing restitution of possession from a tenant holding over after the expiration of his term. The questions made by the bills of exception arise upon the supposition that the parties stood in the relation towards each other of landlord and tenant. On the trial Miller gave in evidence, as the bill of exceptions states, a writing purporting to be a lease, whereby Alderson rented from him the land for the term of one year, and bound himself to render up peaceable possession at the end of the term; and proved that at the end of the term he demanded a surrender of the leased premises, which was refused by Alderson. The latter thereupon offered to read in evidence a decree which is set out in the bill of exceptions, and after reading said decree, he also upon the same state of proof offered in evidence a deed to himself for the land in controversy from George Alderson and John Anderson, dated the 15th of December 1829. The deed describes the land as part of a survey of twenty-eight thousand two hundred and eighty and a half acres, made for and granted to Henry Banks, and sold by the attorney of said Banks to the said G. Alderson and J. Anderson. To the reading of the copy of the decree and the deed in evidence Miller objected; but as the defendant in the court below stated that he expected to prove the lease referred to was procured through mistake or fraud, and that he had himself title to the land; and that said decree and deed were necessary items of proof to establish said facts, the court overruled the objection, and permitted the decree and deed to be read as evidence: to which decisions the said Miller excepted.
The general rule that a tenant should not be permitted to contest his landlord’s title, is too well settled to require the citation of any authorities to sustain it. The rule rests upon principles of justice and good faith. The tenant enters under his landlord, and ac*283quires possession by admitting his title. It would be a breach of good faith to attempt to hold a possession so obtained, by impeaching the landlord’s title. In most cases at law the plaintiff’s action may be defeated by showing that the right to the subject in controversy is in a third person. In a writ of right the constructive seizin conferred by a grant could be defeated by proof of a valid outstanding title in a third person; and in ejectment the lessor of the plaintiff must, in almost every case, show a good title against all persons. The exception in favor of the landlord as against his tenant, is a departure from the strict rule of law. But a principle adopted to promote justice and good faith, must not, as was said by C. J. Tilghman in Hamilton's lessee v. Marsdon, 6 Binn. R. 45, be used as an instrument of fraud and violence. In that case the tenant, to prove adverse title, was permitted to show that being in possession under a lease from a third person, the plaintiff in the ejectment came with others armed and threatened to turn him out of the premises, unless he took a lease from him, which he did. So in the case of Miller v. McBriar, 14 Serg. & Rawle 382, a person in possession was induced by the plaintiff who exhibited a patent, to enter into an agreement called a lease. The tenant offered to prove that the patent was procured by fraud. Gribson, O. J. said that a tenant may impeach his landlord’s title whenever he can show that he was induced to accept the lease by misrepresentation and fraud, and the exhibition of a title founded in forgery to induce a person already in possession to accept of a lease, was an act of an unequivocal character; and the evidence was admissible to show that the agreement was obtained by imposition and deceit. To the same effect is the case of Brown v. Dysinger, 1 Rawle’s R. 408, where a lease was unfairly obtained from a *284person in possession of the land. The case of Ball v. Lively, 2 J. J. Marsh. R. 181, establishes the same proposition. In that case the defendant in possession against whom there had'been a judgment and recovery in ejectment for part of the land in his possession, was induced by a person who had no authority to enforce the judgment, to take from him a lease, which recited that the plaintiffs in ejectment had recovered the whole of the premises. The court decided that if a person in possession of land be induced by fraud to become lessee of one having no claim to the land, he may disclaim the tenancy, and rely on his precedent possession, from which he has been seduced by false and delusive pretences. That was a case of forcible detainer, and so far as the facts of the present case can be collected from the bills of exception, may have been alike in its circumstances. The tenant Alderson was in possession when he executed the lease, for it describes the land as the land he then lived on. The deed to him from George Alderson and John Anderson was dated the 15th of December 1829. And the decree shows that in two suits between the widow and heirs of John F. Schermerhorn deceased, and said G. Alderson and J. Anderson and others, Alderson and Anderson were required to surrender and deliver up to the widow and heirs aforesaid possession of a portion of the tract of twenty-eight thousand two hundred and eighty and a half acres in said county of Greenbrier; and unless they should do so, the decree directed the sheriff to deliver to Mrs. Schermerhorn possession of such of the land conveyed to her by the commissioner of the court, as the sheriff should find in the possession of Alderson and Anderson, or either of them, or in the possession of any person who had come into possession under them since the 23d of March 1837, when the first of the chancery suits was *285instituted. The land referred to in the deed corresponds in the description of quantity and county where situated, with the tract a portion of which was conveyed by Alderson and Anderson to the plaintiff in error by the deed dated the 15th of December 1829, long prior to the 23d of March 1837, and the sheriff was not therefore authorized to deliver possession of it under the decree. How Miller the plaintiff in the court below claimed the land, does not appear. Prom the exception it would seem that after giving the lease in evidence and proving a demand and refusal to surrender, he there rested his case. Although he showed no title, yet if he had acquired possession and had parted with it to his lessee, good faith required he should be restored to the possession ; and if the transaction had been fair, it would have been no answer to say he was not owner of the land. To lay a foundation to impeach his right to a restoration of the possession, it was incumbent on the tenant to show that he had held possession previous to the lease, under some claim of title, and that he was induced to surrender possession, if in fact he did surrender possession, and to take a lease by fraud and imposition of the landlord. To this end the deed to him was proper evidence, and the decree also as showing the exception in favor of those who came into possession under his vendors prior to the 23d of March 1837. The decree might also have been material, if any misrepresentation of its character had been made and the party in possession had not been apprised of the exception in favor of those who had come into possession under Alderson and Anderson prior to the day last aforesaid.
The proof being legal, and offered for the purpose set out in the bills of exceptions, the order in which it was offered was of no importance. In view of the object avowed, it would seem that they should have *286been first offered as showing an actual possession under claim of title before he surrendered possession and under the lease, and then to introduce the evidence of fraud and imposition. If any reason had exisf;e(3 to induce the court to believe that these papers were offered merely to produce an improper impression on the jury, and that it was not intended to follow them up by evidence tending to prove fraud or imposition, the court perhaps might have required the party to reverse the order of his proof. These are matters occurring in the progress of a trial, which must be left in a great measure to the control of the court which is supervising it. If not followed by any evidence tending to prove the fraud and imposition, the jury can be instructed to disregard it.
It was insisted that the decree should not have been admitted because it does not show on its face that it referred to the land in controversy. It is not necessary to determine that question upon this bill of exceptions. It was proof that such a decree was rendered, and whether the party offering it showed by other evidence, as he might have done by the admission of the adverse party, that the deed and decree referred to the same twenty-eight thousand two hundred and eighty and a half acres of land in Greenbrier does not appear. It does not appear that any motion was made to instruct the jury to diregard this evidence because not followed up by other evidence necessary to make it available. The objection seems to have been rested rather upon the time of offering the proof, than upon the admissibility of the proof in a different stage of the trial. A verdict was found and judgment rendered, without any exception to the rulings of the court in any other particular; there was no motion for a new trial; the facts proved were not spread on the record. The presumption therefore is that the defendant below *287did show a previous possession under title which he never had surrendered, and so showed a better right to the possession than his adversary j or if he did surrender possession and re-enter under the alleged lease, that it was procured through fraud.
It seems to me that there was no error in the judgment of the County court, and that the Circuit court, instead of reversing, should have affirmed it.
Judgment of the Circuit court reversed,, and that of the County court affirmed* | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480766/ | MEMORANDUM **
In these consolidated petitions for review, Ines Chavez and Monserrat Hurtado, seek review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s decision denying their applications for suspension of deportation, and its order denying their motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s continuous physical presence determination. Canales-Vargas v. Gonzales, 441 F.3d 739, 742 (9th Cir.2006). We review de novo claims of constitutional violations in immigration proceedings and for abuse of discretion the denial of a motion to reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petitions for review.
In No. 08-71325, the record does not compel the conclusion that petitioners met their burden of establishing continuous physical presence where they failed to provide sufficient evidence supporting their presence from October 19, 1988, to October 19,1995. See Singh-Kaur v. INS, 183 F.3d 1147, 1150 (9th Cir.1999) (a contrary result is not compelled where there is “[t]he possibility of drawing two inconsistent conclusions from the evidence”) (internal quotation marks and citation omitted). Petitioners’ due process claim fails because they cannot 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).
In No. 08-74838, the BIA acted within its discretion in denying as untimely petitioners’ motion to reopen because it was filed more than 90 days after the BIA’s final removal order, see 8 C.F.R. § 1003.2(c)(2), and petitioners did not show they were entitled to equitable tolling, see Iturribarria, 321 F.3d at 897-98 (deadline for filing a motion to reopen may be equitably tolled where a petitioner acts with due diligence).
Petitioners’ remaining contentions are unavailing.
PETITIONS FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provid*379ed by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480767/ | MEMORANDUM **
Alejandro Solorio-Cadena appeals from his 46-month sentence for re-entry after deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Solorio-Cadena’s 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 brief. No pro se supplemental brief or 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/8480768/ | ORDER
The court previously consolidated appeal No. 09-15632 with appeal Nos. 09-16897, 09-17382, 10-15253, 10-15496, 10-15497, 10-15500 and 10-15735. The court further directed that petition No. 09-73419 be calendared with these consolidated appeals.
Today the court issues its decision in appeal No. 09-15632 only. Accordingly, appeal No. 09-15632 is severed from the remaining consolidated appeals. Appeal Nos. 09-16897, 09-17382, 10-15253, 10-15496, 10-15497, 10-15500 and 10-15735 remain consolidated, and shall be calendared with petition No. 09-73419.
Briefing in the remaining consolidated appeals remains stayed pending disposition of the court’s August 23, 2010 order directing new counsel for Appellants Asset Resolution, LLC to file a notice of appearance. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480769/ | ORDER
The court previously consolidated appeal No. 09-15632 with appeal Nos. 09-16897, 09-17382, 10-15253, 10-15496, 10-15497, 10-15500 and 10-15735. The court further directed that petition No. 09-73419 be calendared with these consolidated appeals.
Today the court issues its decision in appeal No. 09-15632 only. Accordingly, appeal No. 09-15632 is severed from the remaining consolidated appeals. Appeal Nos. 09-16897, 09-17382, 10-15253, 10-15496, 10-15497, 10-15500 and 10-15735 remain consolidated, and shall be calendared with petition No. 09-73419.
Briefing in the remaining consolidated appeals remains stayed pending disposition of the court’s August 23, 2010 order directing new counsel for Appellants Asset Resolution, LLC to file a notice of appearance. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480827/ | ON MOTION
ORDER
Mara N. Menegassi moves for a 45-day extension of time, until November 8, 2010, to file her reply brief.
Upon consideration thereof,
It Is Ordered That:
The motion is granted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480775/ | ON MOTION
ORDER
PER CURIAM.
Sparton Corporation moves for an extension of time to file its opening brief. The United States opposes and moves to dismiss this appeal. Sparton replies. Sparton separately moves to file its brief out of time and for leave to file a brief not to exceed 19,000 words. The United States moves for leave to file a response out of time. Sparton replies.
Sparton’s opening brief was originally due on December 28, 2009. This court granted Sparton eight extensions of time to file its brief. In granting the eighth extension, until June 11, 2010, this court informed Sparton that further extensions were prohibited. Because Sparton failed to comply with the court’s order requiring that its opening brief be filed no later than June 11, 2010, and prohibiting further extensions of time, we dismiss this appeal.
It Is Ordered That:
(1) The United States’ motions are granted.
(2) Sparton’s motions are denied.
(3) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480776/ | ON MOTION
ORDER
Verlene L. Parker moves for a waiver of the bill of costs,
Accordingly,
It Is Ordered That:
(1) The motion is deferred for consideration by the merits panel assigned to hear this case.
(2) A copy of Parker’s motion and this order shall be transmitted to the merits panel assigned to hear this case. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480777/ | ORDER
PER CURIAM.
The court treats Diep X. Hoang’s motion to recall the mandate as a motion for reconsideration of the court’s May 3, 2010 order dismissing her appeal for failure to file a brief.
Upon consideration thereof,
IT IS ORDERED THAT:
The motion is denied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480779/ | *694ON MOTION
ORDER
The court treats Sandra Sutton’s correspondence concerning the timeliness of her petition for review as a motion for reconsideration of the court’s previous rejection of her petition for review as untimely. Sutton also moves (1) for leave to proceed in forma pauperis, (2) for an extension of time to file her brief, and (3) for appointment of counsel.
The court initially rejected Sutton’s petition because it appeared to be untimely. However, upon further review, the court determines that Sutton received the decision of the Merit Systems Protection Board on May 12, 2010 and this court received Sutton’s petition on July 12, 2010. Thus, Sutton’s petition is timely.* See 5 U.S.C. § 7703(b)(1).
Accordingly,
It Is Ordered That:
(1) The motion for reconsideration is granted.
(2) Sutton’s motion for leave to proceed in forma pauperis is granted.
(3) Sutton’s motion for an extension of time to file her brief is granted. Sutton’s brief is due within 30 days of the date of filing of this order.
(4) Sutton’s motion for appointment of counsel is denied.
Pursuant to 5 U.S.C. § 7703(b)(1), a petition for review of a Board decision must be filed within 60 days of receipt of the decision. The court received Sutton's petition 61 days after she received the Board’s decision. However, the 60th day after Sutton's receipt of the Board's decision was July 11, a Sunday. Thus, pursuant to Fed. R.App. P. 26(a)(1)(C), Sutton's petition was due on July 12, the day she filed the petition. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480780/ | ON MOTION
ORDER
B.L. Harbert-Brasfield & Gorrie, JV (Harbert-Gorrie) submits a motion seeking a stay, pending appeal, of the judgment of the United States Court of Federal Claims. Harbert-Gorrie further requests that the court enter an immediate temporary stay pending disposition of its motion.
Upon consideration thereof,
It Is Ordered That:
(1) Turner Construction Co., Inc. and the United States are directed to respond no later than September 27, 2010.
(2) Harbert-Gorrie’s request for an immediate temporary stay, pending disposition of its motion for a stay, pending appeal, is denied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480781/ | ON MOTION
ORDER
Upon consideration of Robert W. Johnson’s motion to voluntarily withdraw his appeal,
It Is Ordered That:
(1) The motion is granted and the appeal is dismissed.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480828/ | ON MOTION
ORDER
Gregory W. Ingram moves for leave to proceed in forma pauperis.
Upon consideration thereof,
It Is Ordered That:
The motion is granted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481646/ | Daniel, J.
delivered the opinion of the court:
In the case of Casamajor v. Strode, 1 Cond. Eng. Ch. R. 195, the broad doctrine is laid down by the vice chancellor, Sir John Leach, that a purchaser, under a decree for the sale of lands, though not a party to the cause, does, by the act of purchase, submit himself to the jurisdiction of the court as to all matters connected with that character. The same doctrine is stated by Judge Story in the case of Wood v. Mann, 3 Sumner’s R. 318, and by Chancellor Walworth in the case of Requa v. Rea, 2 Paige’s R. 341. And in the second volume of Daniel’s Ch. Pr. 1460-61-2, it is stated, that after the report of a sale by a master is confirmed, there are, according to the English practice, three modes of remedying the failure of the purchaser to comply with the terms of the sale. If it appears that the purchase has been made by a person unable to perform his contract, the parties interested in the sale, may, upon motion, obtain an order, simply discharging him from his purchase, and directing the estate to be resold. If the purchaser is responsible, the court will, if required, make an order that he shall within a given time pay the money into court; and if the purchaser, on being served with the order, fails to obey it, his submission to it may be enforced by attachment. Oían order will be made for the estate to be resold, and for the purchaser’to pay the expenses arising from the non-completion of the purchase and the resale, and *292any deficiency in price arising upon the second sale. Such an order (the author proceeds) was made by Lord (Nottingham in Harding v. Harding, 18 Eng. Ch. R. 514, after consultation with the other judges of the court; and although in that case the purchaser was a defendant in the cause, it does not seem that that fact was considered as necessary in order to justify the making of the order.
In Lansdown v. Elderton, 14 Ves. R. 512, the purchaser was compelled to complete his purchase by the second of the courses just mentioned, namely, by an order to pay in his purchase money within a given period, or stand committed. Since the date of that decision (1808) it has been the constant practice of the English courts of chancery to make such orders; and repeated instances may be found in the reports of our sister states, in which the precedent has been approved and acted upon. Anderson v. Foullce, 2 Harr. & Gill R. 346; Gordon v. Sims, 2 McCord’s Ch. R. 151; Brasher v. Cortlandt, 2 John. Ch. R. 505.
It is argued, however, by the counsel for the appellant, that as judicial sales in England are always made for cash, the practice regulating such sales there has no application to cases where, by the terms of the decree, the sale is upon a credit, and the payment of the purchase money is to be secured by the bond of the purchaser. And in support of this view, he cites the case of Richardson v. Jones, 3 Gill & John. R. 163, in which it was held by the Court of appeals of Maryland, that where a bond is given to the trustee, for the purchase money under an order of sale in chancery, requiring a bond to be given, and the sale has been confirmed, the purchaser and his sureties cannot be compelled to pay the bond by attachment. Buchanan, Ch. J. thus states the reasons why, in his opinion, the practice in respect to sales on credit should be different from that in respect to sales for cash. “When a sale. *293is made under a decree or order in chancery, and no bond or security is given for the payment of the purchase money, a practice has grown up in chancery, and sanctioned by this court, in Anderson v. Foulke, 2 Harr. & Gill 346, to compel the purchaser to complete his purchase by an order on him in a summary way to pay or bring the money into court, and that, from a necessity arising out of the peculiar character of such transactions. Ho action at law will lie to enforce a decree in chancery within the territorial j urisdiction of the court in chancery. An order of the Court of chancery ratifying such a sale is considered as amounting to a decree for the payment of the money ; and if that court could not enforce the execution of it, it could not be enforced at all.” “ A court of chancery having a clear right to enforce its own decrees, and an order of ratification being considered as amounting to a decree for the payment of the purchase money, a purchaser who neglects or refuses to comply with such decree, is in contempt, and may be dealt with accordingly by an order in the first instance (in this state) to bring the money into court as preparatory to an attachment.” “ But where a bond is given to the trustee for the purchase money under an order of sale from chancery requiring bond to be given, the terms of sale are complied with, and a contract entered into, not with the' court, but with the trustee, on which, after ratification, he has a full and perfect remedy at law for enforcing the payment of the purchase money, that is recognized and sanctioned by the order of ratification, which, in such case, is not a decree for the payment of the purchase money, but a confirmation only of what has been done. And though the contract of sale being perfected by the order of ratification, it is thereby said to become a sale by the court; yet the terms of sale being complied with and *294the purchase completed, by giving to the trustee, as required, a bond to secure the purchase money, the purchaser is not in contempt by the non-payment of it. The contract on the bond not being with the court, but with the trustee under the sanction of the court, the remedy is by suit on the bond in a court of law; and chancery cannot enforce it as a mere bond for the payment of money, by which the original simple contract of purchase is extinguished. And if the payment of the bond, as such, cannot be enforced by a bill in chancery, a fortiori, can it not be enforced in a summary way by an order to bring the money into court.”
However satisfactory such reasoning may seem when the effort is to enforce the payment of the purchase money by attachment, I do not perceive how it can be made to bear on the case in hand. By the decree under which the purchase in this case was made, the terms of sale were, one-fourth of the purchase monejr for cash, and as to the residue, upon a credit of one, two and three years, payable by equal installments, the purchaser giving bond with security for payment of the deferred installments, and the title of the land to be retained as security for the payment of such deferred installments, until the same shall be fully paid. All of the bonds for the deferred installments were due and unpaid, and judgments at law upon two of them had proved unproductive. And in this state of things, the proceeding against the purchaser asked and obtained, was not a proceeding by way of attachment, but a rule summoning him to appear to show cause why the land sold him by the commissioners should not be resold to pay the unsatisfied installments of purchase money due by him and his securities! and why a decree over should not be rendered against him for so much of said unpaid purchase money as the said land, upon a resale, might not pay off *295and discharge. And the interlocutory decree, from which the appeal is had, is simply a decree for the resale of the land.
Let it be that there is no decree in the cause ordering Clarkson to pay in the purchase money, and that so, he cannot strictly be treated as in contempt; still, the credit which was allowed having expired, and his bonds being wholly unpaid, he is in default in respect to the purchase money. Having by his purchase submitted himself to the jurisdiction of the court in the suit, he has not placed himself beyond the reach of the court by giving the bonds. The court still holds or controls the title, and he still owes the purchase money. In a contract of the like kind between Clarkson and a party acting in his own behalf, the execution, by Clarkson with his securities, of a bond to a third person for the benefit of the vendor, would not deprive the latter of a right to resort to a court of equity for full relief in the case of a failure by Clark-son, on the expiration of the credit, to pay the bond. The right of the vendor, in such case, to sue upon the bond at law, if he pleased, would not in any degree conflict with his right to have a decree for the sale of the land and a personal decree against Clarkson for any balance due after applying the proceeds of sale to the satisfaction of the unpaid purchase money. In cases of judicial sales in England, the court is regarded in a certain sense as the owner and principal, and the master as the mere agent; and the contract is treated as a contract substantially between the purchaser on the one side, and the court as the vendor on the other. Savile v. Savile, 1 P. Wms. R. 745; Anderson v. Foulke, already cited, 2 Harr. & Gill 346. This view is conceded by Ch. J. Buchanan in his opinion in the case of Richardson v. Jones, to be correct in regard to sales for cash; and I cannot perceive how *296the nature of the contract as a whole is altered, or the relation of the court as vendor to the purchaser is changed, by the fact that the sale is on credit, and that the purchaser has executed his bonds to the commiSsioner for the deferred installments. It is true, that by the execution of the bonds the purchaser has placed it in the power of the court to cause the collection of the purchase money by a suit upon the bonds at law. The jurisdiction of a court of law in respect to the bond, however, is not in exclusion of the jurisdiction of a court of equity to compel a complete performance of the contract in all its parts. The bond is but an additional security for the purchase money; and the power of the court to sue on the bond is in aid of and not in conflict with its other powers to compel the execution of the contract. Such clearly would be the law as between two parties occupying strictly the relation to each other of vendor and vendee ; and I can see no reason why the same rule would not hold as between the court and the purchaser at a judicial sale.
And if the court, in the case of a failure, by the purchaser at a cash sale, to pay in the money, may without requiring the parties to the cause to file a bill, proceed, by rules and orders to sell the land, and hold the purchaser accountable for the balance due, after applying the proceeds of sale to the discharge of the purchase money, it is difficult to see why the like proceeding may not be resorted to in the case of a sale for credit, when the credit has expired and the purchase money remains unpaid. Such rules and orders would have the same foundations to rest upon in the one case as in the other.
The power of the court thus to enforce the execution of the contract is, I apprehend, wholly independent of its power to proceed against the purchaser as *297in contempt. In the case of Harding v. Harding (already referred to), Lord Cottenham said, that there was no reason why a person purchasing under a decree of the court should not be held to his contract, as much as a person purchasing in the ordinary way: That the court might enforce the vendor’s lien against the estate : and that an order to hold the purchaser to his contract and to resell the estate in the mean time, was in strict analogy to the course the court takes against a purchaser in the ordinary case. And in the very learned and able opinion of the chancellor (Bland), delivered on rendering the decree in Anderson v. Foulke, from which the appeal in that case was taken, he treats the practice in question as one so well established that its propriety could be no longer questioned. 2 Harr. & Gill 368.
I find nothing in conflict with these views, in the decision made by the Special court in the case of Gross v. Pearcy, 2 Patt. & Heath 483; to which reference was made by the counsel for the appellant; though it is true that Judge Thompson, in delivering the opinion of the court, whilst admitting the convenience of such a practice, expresses strong doubts, whether, “ tested by the usages and practice of courts of equity in Virginia,” the court had in such cases power to proceed by rule against a purchaser and his sureties, to decree a resale. The proceedings in that case in the Circuit court were, I think, clearly erroneous upon the merits; and I do not understand the decree of the Special court reversing those proceedings, as going to the length of deciding that a court of equity had no power in any case to order a resale upon rule. And with very high respect for the learning and experience as a chancellor, of the judge who delivered the opinion in that case, I still think that the power in question is one in strict harmony with the principles *298applicable to the constitution and practice of a court of equity, and essential to the convenient and efficient dispatch of its business.
I do not mean to say that in all cases of the kind the proceeding should be by a rule rather than by a bill. It is not difficult to conceive of cases in which there might grow up, or be developed, between the direct parties to the cause and the purchaser, equities of a character such as to require that they should be discussed and considered upon regular and formal pleadings, original or supplemental. It is, however, but reasonable to believe that in a majority of cases little else would be attained by requiring the parties to go through the steps of a regular suit, instead of proceeding by a rule, except delay: delay, which, whilst furthering no just end or object of the purchaser, would work inconvenience and injustice to those entitled to receive the proceeds of the sale.
A rule in such a case apprises the purchaser of the nature of the demand against him as fully as a bill could do. And the only additional office that a bill could perform, would be to recite, in a more formal manner, matters which he already knows; or which the law presumes that he already knows. If he has any cause to resist the demand, he can set it forth as fully in an answer to the rule as in an answer to a bill. And if in his answer to the rule he should show any reason why there should be no resale of the property, it would be just as incumbent upon the court to allow him an opportunity to bring forward his proofs as it would have been, had the same matter been averred in an answer to a bill.
In the case before us, the purchaser appeared to the rule, Sled his answer, and went into the examination of witnesses for the purpose of proving the justice of the causes which he assigned why he should not be *299subjected to the order and decree asked against him. There is nothing to show, and indeed it is not'suggested, that he has, by the summary character of the proceeding, been precluded from making any resistance or defence to the decree rendered, which he would or might have made in the course of a formal^ suit.
I see no error in the proceedings, and am of opinion to affirm the decree.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480784/ | SUMMARY ORDER
Dr. Irvin B. Krukenkamp appeals from the Eastern District of New York (Platt, J.)’s grant of summary judgment dismissing Dr. Krukenkamp’s First Amendment retaliation and Fourteenth Amendment procedural due process claims. Dr. Krukenkamp also appeals the District Court’s dismissal with prejudice of Dr. Krukenkamp’s state law breach of contract claims. Lastly, Dr. Krukenkamp requests that if we remand this case, we remand to a different district court judge. We assume the parties’ familiarity with the underlying facts, procedural history, and issues presented on appeal.
In 2004, Dr. Krukenkamp sued the State University of New York at Stony Brook (“SUNY Stony Brook”), Stony Brook University Medical Center (“SB Medical Center”), and various affiliated officials, alleging, inter alia, violations of free speech and due process rights (“Krukenkamp I ”). In September 2005, the parties to Kruken*749kamp I agreed to dismiss the case with prejudice, providing for payments to Dr. Krukenkamp and limiting his future employment with SUNY Stony Brook and SB Medical Center. As relevant to this appeal, the Settlement Agreement provided that: (1) during 2006, Dr. Krukenkamp would retain his full staff membership at SB Medical Center and his title, positions, and appointments as professor at SUNY Stony Brook; (2) during 2007, Dr. Krukenkamp would be on Title F paid leave (“presidential leave”); and (3) on January 1, 2008, Dr. Krukenkamp would resign all his positions at SUNY Stony Brook and SB Medical Center, subject to the Krukenkamp I defendants’ performance of various sections of the contract.
In July and August 2006, Dr. Krukenkamp gave interviews to newspaper, radio, and television outlets, criticizing SB Medical Center’s pediatric program and discussing the New York Department of Health’s investigation into that program. Dr. Krukenkamp alleges that after these public comments, Defendants to the current suit (“Krukenkamp II”) retaliated against him. Dr. Krukenkamp filed suit in March 2007, and on October 26, 2009, the District Court granted summary judgment for Defendants, dismissing Dr. Krukenkamp’s First Amendment retaliation claim and procedural due process claim.
Summary judgment is appropriate only “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed R. Civ. P. 56(c); Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009). “We review de novo the district court’s grant of summary judgment, drawing all factual inferences in favor of the non-moving party.” Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 107 (2d Cir.2008).
A. First Amendment Retaliation Claim
“To establish a First Amendment retaliation claim, a plaintiff must show: (1) his speech addressed a matter of public concern; (2) he suffered an adverse employment action; and (3) a causal connection between the speech and the adverse employment action.” Singh v. City of New York, 524 F.3d 361, 372 (2d Cir.2008). Upon such a showing, summary judgment should be denied unless the defendant shows, as a matter of law, that it “would have taken the same adverse employment action even absent the protected conduct.” Dillon v. Morano, 497 F.3d 247, 251 (2d Cir.2007).
1. The Existence of Speech of Public Concern
Defendants do not dispute that Dr. Krukenkamp’s statements were a matter of public concern and they were aware of them by August 2006.
2. Adverse Employment Action
An employment action is “adverse” if it “would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.” Dillon, 497 F.3d at 254 (citing Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir.2006)) (quotation marks omitted). Although Dr. Krukenkamp alleges that Defendants took six adverse employment actions toward him, we find that a reasonable jury could find that he suffered only three such actions.
First, Defendants do not contest that they put Dr. Krukenkamp on “inactive” clinical status at SB Medical Center in January 2007. Preventing a surgeon from performing surgery is an “adverse” action.
Second, while not required to do so without considering the reasons that Defen*750dants may proffer for the variance, a reasonable jury could find that after Dr. Krukenkamp’s July 2006 speech, Defendants referred fewer cases to Dr. Krukenkamp while he was on call at SB Medical Center. Dr. Krukenkamp testified that doctors were referred patients that asked for them and, while on call, those unassigned patients who did not ask for a specific doctor. Viewing Defendants’ work schedule and referral log records in the light most favorable to Dr. Krukenkamp, a reasonable jury could find that on days in which he was on call, Dr. Krukenkamp received significantly fewer referrals after his speech than he did before his speech. Defendants do not contest that referring significantly fewer patients to Dr. Krukenkamp, if true, would be “adverse.”
Third, a reasonable jury could find that Defendants’ removal of Dr. Krukenkamp’s name from SB Medical Center’s public “Find a Doctor” website in January 2007 was an adverse action. Defendants do not contest that they took this action but argue that it was trivial. However, a reasonable jury could find such action was “adverse,” hampering Dr. Krukenkamp’s ability to attract new patients and find a new employer. A reasonable jury could find that Defendants aimed to reduce the number of patients requesting Dr. Krukenkamp (assigned patients), just as such jury could find that they reduced his on call referrals (unassigned patients).
For the reasons stated by the District Court, we agree that Dr. Krukenkamp offered insufficient proof that Defendants pressured his secretary to leave his office in February 2007. Further, we agree that neither Defendants’ nonrenovation of Dr. Krukenkamp’s office nor their seating of him on a small stool next to the garbage before a meeting is a sufficiently “adverse” action. No reasonable jury could find that these acts “would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.” Dillon, 497 F.3d at 254; cf. Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir.2002) (“minor incidents” can “attain the critical mass of unreasonable inferiority” if they “occur often and over a long[] period of time”).
3. Causation
To establish causation, a plaintiff “must show that the protected speech was a substantial motivating factor in the adverse employment action.” Cioffi v. Averill Park Cent Sch. Dist. Bd. of Educ., 444 F.3d 158, 167 (2d Cir.2006) (quotation marks omitted). “A plaintiff can establish a causal connection that suggests retaliation by showing that protected activity was close in time to the adverse action.” Espinal v. Goord, 558 F.3d 119, 129 (2d Cir.2009).
Dr. Krukenkamp provided evidence that after his July 2006 comments, his referrals immediately dropped and six months later Defendants placed him on inactive status and removed his name from a public directory. On this record, a reasonable jury could find that Dr. Krukenkamp’s public comments were a substantial motivation factor in Defendants’ reduction of his referrals. A reasonable jury could find that Defendants waited six months for an opportune time to take the most visible adverse acts, when Dr. Krukenkamp was scheduled to go on Title F leave. See Espinal, 558 F.3d at 129 (finding six month delay after protected speech and alleged retaliatory acts was “sufficient to support an inference of a causal connection” because it was “plausible that [defendants] waited to exact their retaliation at an opportune time”).
4. Defendants’ Nonretaliatory Reason
If Defendants prove as a matter of law that they would have taken the same ac*751tions for legitimate reasons, and not for retaliation, then summary judgment is proper. Dillon, 497 F.3d at 251. Here, Defendants do not offer a reason for the reduced referrals after July 2006. But they argue that if Dr. Krukenkamp suffered adverse employment actions in 2007 or 2008, the actions resulted from Defendants’ implementation of the Settlement Agreement. A reasonable jury could find otherwise. Although the agreement provided that Dr. Krukenkamp would be on Title F leave starting January 1, 2007, Dr. Krukenkamp presented uncontroverted testimony by the Dean of SUNY Stony Brook Medical School, from which a reasonable jury could find that Title F leave applies only to academic work at SUNY Stony Brook, not clinical work at SB Medical Center. Further, given the ambiguity of Dr. Krukenkamp’s agreement to resign on January 1, 2008 subject to various conditions, it is not clear as a matter of law that Defendants would have taken the same action if Dr. Krukenkamp had not spoken publicly about the pediatric program.
In sum, there are genuine issues of material fact regarding whether Defendants retaliated against Dr. Krukenkamp after he spoke by (1) referring fewer patients to him when he was on call; (2) placing him on inactive status; and (3) removing his name from the public “Find a Doctor” website.
B.Procedural Due Process Claim
The District Court did not err in granting summary judgment dismissing Dr. Krukenkamp’s procedural due process claim. By signing the Settlement Agreement, Dr. Krukenkamp forfeited his interest in continued employment, so long as Defendants adhered to certain provisions in the contract. Dr. Krukenkamp alleges that Defendants violated procedural due process by breaching the Settlement Agreement’s provisions regarding his duties and positions at SUNY Stony Brook and SB Medical Center and not providing him notice and a hearing to rectify the breach. The District Court did not err in finding that Dr. Krukenkamp has not shown a constitutional deprivation of due process. Dr. Krukenkamp had adequate postdeprivation remedies, including a state law contract claim or an Article 78 claim. See Costello v. Town of Fairfield, 811 F.2d 782, 784 (2d Cir.1987) (“A contract dispute ... does not give rise to a cause of action under Section 1983.”); Grillo v. New York City Transit Auth., 291 F.3d 231, 234 (2d Cir.2002) (finding that “an Article 78 proceeding is a perfectly adequate postdeprivation remedy” for the arbitrary deprivation of a property or liberty interest (quotation marks omitted)).
C. Dismissal of Breach of Contract Claims
Given the above rulings, and the District Court’s erroneous dismissal of all claims over which it had original jurisdiction, we vacate the District Court’s dismissal of Dr. Krukenkamp’s state law breach of contract claims and remand with an order to dismiss those claims without prejudice.
D. Request to Remand to a Different District Court Judge
Dr. Krukenkamp requests that we remand to a different district court judge. However, Dr. Krukenkamp has not shown that Judge Platt’s alleged failure to award sufficient time at oral argument would cause an objective observer to question Judge Platt’s impartiality. Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 21 (2d Cir.1996). We remand this case to Judge Platt for further proceedings. Conclusion
We VACATE the District Court’s grant of summary judgment for First Amend*752ment retaliation based on Dr. Krukenkamp’s allegations that Defendants (1) referred fewer patients to him when he was on call; (2) placed him on inactive clinical status; and (8) removed his name from the public “Find a Doctor” website. We VACATE the District Court’s dismissal with prejudice of Dr. Krukenkamp’s state law breach of contract claims and remand with an ORDER that the claims be dismissed without prejudice. In all other respects, we AFFIRM the District Court and REMAND the ease to Judge Platt for further proceedings. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480785/ | OPINION
PER CURIAM.
Petitioner Vanney Van, a native and citizen of Cambodia, seeks review of final orders issued by the Board of Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petitions for review in part and dismiss them in part.
Because the parties are familiar with the background, we will present it here only in summary. In 1984, as a young child, Van entered the United States with his family as a refugee. In 1988, he became a lawful permanent resident (“LPR”) on account of his refugee status, as of the date of his entry into the United States in 1984. On April 23, 1997, he was convicted after pleading guilty in Pennsylvania state court to robbery, attempted rape, burglary, possessing instruments of crime, and criminal conspiracy. He was sentenced to one to ten years of imprisonment, serving three years before being released.1 In late 2007, the Department of Homeland Security (“DHS”) initiated removal proceedings, charging Van with three aggravated felony-based grounds of removability under 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of a crime of violence, a theft offense, and attempt or conspiracy to commit an aggravated felony, pursuant to sections 1101(a)(43)(F), (G), and (U), respectively.2 Van applied for waivers of inadmissability under 8 U.S.C. § 1159(c) (INA § 209(c)) and former section 1182(c) (former INA § 212(c)). He also applied for deferral of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). Van testified at a hearing before the Immigration Judge (“IJ”) in support of his applications for relief. The IJ found that Van was removable for having been convicted of crimes constituting aggravated felonies as defined in 8 U.S.C. §§ 1101(a)(43)(F), (G), and (U). The IJ also determined Van was ineligible for a waiver under 8 U.S.C. § 1159(c), noting such waiver depends upon an application to adjust status under section 1159(a), and that Van was no longer eligible for that adjustment because his status already was previously adjusted, and that he was no longer a refugee. The IJ also determined that Van was ineligible for a waiver of deportation under former INA § 212(c) (former 8 U.S.C. § 1182(c)) due to his criminal convictions occurring after the effective date of the abolishment of the provision. *891Further, the IJ denied Van’s application for CAT relief and ordered Van removed to Cambodia. In a decision dated March 24, 2009, the Board of Immigration Appeals (“BIA”) affirmed the IJ’s order of removal and dismissed Van’s appeal.
■Van filed with the BIA a motion to reopen and reconsider, requesting adjustment of status and a waiver of inadmissibility under INA § 212(h) (8 U.S.C. § 1182(h)). The BIA denied Van’s motion, noting that it was untimely as a motion to reconsider.3 Considered as a motion to reopen, the BIA concluded that Van presented no new and material evidence that would affect the outcome of the proceedings, citing 8 C.F.R. § 1003.2(c)(1), and rejected Van’s argument regarding the section 1182(h) waiver. Van filed timely petitions for review regarding both the BIA’s decisions, and the matters have been consolidated in this Court. The respondent has filed a motion to dismiss.
As the respondent argues in its motion and in its brief, we generally lack jurisdiction to review final orders of removal against criminal aliens, like Van, who have an aggravated felony conviction. See 8 U.S.C. § 1252(a)(2)(C). However, we may review “constitutional claims or questions of law” raised in a petition for review. See 8 U.S.C. § 1252(a)(2)(D); -Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir.2005). Van argues that the BIA erred in its determinations of his claims concerning section 1159(c) waiver, CAT relief, and denial of the motion to reopen for consideration of a section 1182(h) waiver.4 We will address these issues in turn.
Van contests the agency’s determination concerning his entitlement to a section 1159(c) waiver. The IJ described the section 1159 provision for refugees to adjust status to that of LPRs, and noted that a waiver of inadmissibility under 1159(c) can be granted when a section 1159(a) application for LPR status is pending.5 Concerning Van, the IJ found that Van is no longer a refugee but is already an LPR, and, under the terms of the statute, he is no longer eligible for section 1159(a) adjustment of status and thus not eligible for a section 1159(c) waiver. Van argues that he retains his status as a refugee despite having become an LPR pursuant to section 1159(a), and that as both an LPR and a refugee, he continues to be afforded the benefit of section 1159(c)’s provision concerning waivers. We note that the BIA addressed this argument and stated that, even assuming that Van retains vestiges of his refugee status, section 1159 relief is unavailable to Van in light of the statute’s language that adjustment of status under section 1159(a) can be granted to an alien “who has not acquired permanent resident status.” 8 U.S.C. § 1159(a)(1)(C). It appears, then, that the agency’s interpretation of the statute is that a waiver of inadmissibility of a refugee logically can occur only at the time when the alien refugee is seeking admission for lawful permanent residence. Van does not present any arguments that persuade us to *892conclude that the BIA erred in its statutory interpretation. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See also Saintha v. Mukasey, 516 F.3d 243, 253 (4th Cir.2008) (rejecting the proposition that an alien refugee who has already adjusted his status to that of an LPR may still apply for a section 1159(c) waiver as a refugee).6
Van nevertheless argues that he should be afforded the rights and protections of a refugee and be eligible for a section 1159(c) waiver, stating that if refugee status were lost upon adjustment to LPR status, “he would become subject to removal pursuant to INA § 237 [8 U.S.C. § 1227], and deemed a ‘deportable alien.’ ” Pet’r Br. at 16-17. Although Van does not directly dispute that he is removable on the basis of his aggravated felony convictions, we note that it is settled law that an alien admitted as a refugee and adjusted to LPR status is indeed subject to removal proceedings for having committed an aggravated felony, even though his refugee status was never terminated. See Romanishyn v. Attorney General, 455 F.3d 175, 185 (3d Cir.2006). Van is, in fact, a deportable alien, regardless of his arrival in the United States as a refugee. We are unpersuaded by Van’s argument on this point.
Van next argues that he is eligible for CAT relief and that the BIA committed error in denying his claim. However, he does not raise any constitutional claims or questions of law on this issue. Van’s arguments concern whether the BIA decision is supported by substantial evidence in the record. As noted earlier, because Van has aggravated felony convictions, that issue is outside of our jurisdiction and will be dismissed.
We now turn to Van’s argument concerning his claim for relief under section 1182(h), which he presented in his motion to reopen or reconsider. We review the decision to deny a motion to reopen or to reconsider under an abuse of discretion standard. See Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir.2005). Under that standard, the BIA’s decision may be reversed only if it is “arbitrary, irrational, or contrary to law.” Id. (citing Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004)). Van argues this issue as a legal matter concerning eligibility under the terms of the statute and under the Fifth Circuit’s decision in Martinez v. Mukasey, 519 F.3d 532 (5th Cir.2008). However, we agree with the respondent’s position that Van does not challenge the bases of the BIA’s denial of the motion, namely, that the motion was untimely as a motion to reconsider, and that Van provided no new and material evidence that would have affected the outcome of the prior proceedings. See 8 C.F.R. § 1003.2(c)(1). Van has not shown that the BIA’s denial of the motion on these bases was arbitrary, irrational, or contrary to law.
We will deny the petitions for review in part and dismiss them in part. The respondent’s motion to dismiss is granted in part and denied in part.
. Van committed these offenses in 1993 as a teenager but was prosecuted as an adult.
. DHS also charged Van with removability under a fourth ground, but there were no findings made on that charge, and it is not at issue here.
. The BIA cited 8 C.F.R. § 1003.2(c) in support, but the provision governing the time for filing a motion to reopen appears at 8 C.F.R. § 1003.2(b)(2).
. We deem all other issues to be waived. See Lie v. Ashcroft, 396 F.3d 530, 532 n. 1 (3d Cir.2005).
. The waiver provision of section 1159(c) is set forth as a “coordination with section 1182” (concerning inadmissible aliens), listing which provisions of section 1182 were inapplicable for aliens seeking a section 1159 adjustment of status. It also provides that, with certain exceptions not relevant here, the Secretary of Homeland Security or the Attorney General may waive the provisions of inadmissibility for humanitarian purposes or family unity reasons.
. The BIA further concluded that it lacked jurisdiction to consider Van’s request for a section 1159(c) waiver, given that DHS has original jurisdiction over section 1159 applications for relief, and if denied, the application for adjustment of status (and presumably, any waiver request) is renewable in removal proceedings. See 8 C.F.R. § 1209.1(e). The respondent argues that Van's failure to address this specific conclusion is fatal to his claim. However, because the BIA’s conclusion about its jurisdiction over a section 1159(c) waiver request is intertwined with its interpretation of section 1159, we do not conclude that Van has waived consideration of the section 1159(c) waiver issue. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480787/ | OPINION
PER CURIAM.
Petitioner Arvinder Singh, proceeding pro se, seeks review of two Board of Immigration Appeals (“BIA”) orders. For the *925reasons that follow, we will deny his petitions for review.
I.
Singh, a native and citizen of India, came to the United States in 1993. He applied for asylum and voluntary departure, claiming that he had been arrested, detained, and beaten because of his political and religious affiliations. He stated that he was a member of the Akali Party, an organization that advocates for an independent Sikh state through peaceful means. He also alleged that he and his family had provided food and shelter to members of a separatist terrorist group out of duress. At his immigration hearing, Singh asserted that he had been arrested several times by the police in India due to his political and religious affiliations and because they suspected him of terrorist activity. He stated that the police told him to quit his political activities and leave the country, and stated that he believed they would have killed him if he stayed. The Immigration Judge (“IJ”) determined that Singh’s testimony was vague, exaggerated, and not credible. (A.R.452-53.) In the alternative, the IJ also found that Singh had failed to establish membership in a particular political party, or that he had suffered harm as the result of his religious practices. (A.R.452-53.) The IJ denied asylum and voluntary departure. Singh’s counsel filed a notice of appeal with the BIA, but never filed a brief. The BIA dismissed Singh’s appeal because the notice of appeal did not “meaningfully apprise” the BIA of the reasons for the appeal. (A.R.429.)
Nearly eight years later, Singh filed a motion to reopen his case with the BIA, claiming that his immigration attorney was ineffective before the Immigration Court and the BIA. He claimed his attorney was ineffective for failing to seek protection under the Convention Against Torture (“CAT”) and for failing to file a brief with the BIA. On April 3, 2009, the BIA denied the motion as untimely, declining to toll the time limit based upon its conclusion that Singh had failed to meet the standard for demonstrating ineffective assistance of counsel as set forth in In re Compean, Bangaly & J-E-C-, 24 I. & N. Dec. 710 (A.G.2009) (“Compean I”).
Singh filed a timely petition for review in this Court, and then filed a motion to remand based on a change in the law regarding ineffective assistance of counsel. The Government filed a “Non-Opposition” to his remand request.
In the meantime, Singh also filed a motion to reconsider with the BIA. On November 19, 2009, the BIA denied the motion. It took note that Compean I had been vacated, and based its analysis on the correct standard set forth in In re Campean, Bangaly & J-E-C, 25 I. & N. Dec. 1 (A.G.2009) (“Compean II”). Singh filed a timely petition for review of that decision. The two cases have been consolidated, and we have issued a stay of removal pending consideration of both petitions for review.
II.
We have jurisdiction under 8 U.S.C. § 1252(a) to review the denial of Singh’s motion to reopen and motion for reconsideration. We review denials of motions to reopen and for reconsideration for abuse of discretion. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir.2005). Under this standard, we may reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004).
III.
Singh does not dispute that his motion to reopen was untimely. See 8 U.S.C. *926§ 1229a(c)(7)(C). Rather, he challenges the BIA’s determination that he was not entitled to equitable tolling of the time limit based on his claim of ineffective assistance of counsel.
Initially, in light of Compean II and given the Government’s non-opposition, it appeared that the BIA should be permitted to reconsider Singh’s motion to reopen. That decision vacated Compean I and reinstated In re Lozada, 19 I. & N. Dec. 687 (BIA 1988), which established the requirements for filing a motion to reopen removal proceedings based upon a claim of ineffective assistance of counsel. However, in ruling on Singh’s subsequent motion to reconsider, the BIA took note that Compean I had been vacated. Under the correct standard, the BIA concluded that Singh had failed to establish that he had been prejudiced by his attorney’s performance such that equitable tolling would be appropriate. Because the cases have been consolidated, and because the BIA has had the opportunity to reconsider Singh’s case in light of the correct standard, we will focus on the BIA’s treatment of the motion for reconsideration.
The Government first argues that Singh does not have the right to counsel at his removal proceedings. However, if counsel’s ineffectiveness prevents an alien from presenting his case, such ineffectiveness could constitute a denial of due process under the Fifth Amendment,Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir.2001).
To prevail on his motion to reconsider the denial of his motion to reopen, Singh had to establish that he was prejudiced by his counsel’s performance. An alien must show that counsel’s performance “prevented [him] from reasonably presenting his case,” and that “substantial prejudice” resulted. Fadiga v. Att’y Gen., 488 F.3d 142, 155 (3d Cir.2007). To show prejudice, an alien must show that there is a “reasonable likelihood” that the result would have been different had the errors not occurred. Id. at 159. The BIA determined that because Singh presented no additional evidence that he claims should have been presented to the BIA to challenge the IJ’s adverse credibility finding, he could not show that he was prejudiced by his attorney’s failure to file a brief or petition for review of that finding.
Likewise, the BIA found that Singh had failed to show a “reasonable likelihood” of being granted protection under CAT. The BIA first considered that his claim relied on testimony that the IJ found to be not credible. “In assessing whether it is more likely than not that an applicant would be tortured in the proposed country of removal, all evidence relevant to the possibility of future torture shall be considered.” 8 C.F.R. § 1208.16(c)(3). Claims for relief under CAT must be considered separately from claims for asylum. See Zubeda v. Ashcroft, 333 F.3d 463, 467 (3d Cir.2003). An adverse credibility assessment for purposes of asylum “does not defeat [a petitioner’s] ability to ‘meet [his] burden of proof under the [CAT].” Id. at 476 (finding that petitioner’s credibility with respect to asylum and withholding claims should not “bleed through to the BIA’s consideration of [his] claim under the [CAT] without further explanation”); see also Guo v. Gonzales, 463 F.3d 109, 114 (2d Cir.2006) (“A CAT claim cannot be denied solely on the basis of an adverse credibility finding since a CAT claim may be established using different evidence and theories than those used for asylum claims.”). An applicant whose testimony is found to be not credible for purposes of asylum may still prevail “ ‘so long as the factual predicate of the applicant’s claim of future persecution is independent of the testimony that the IJ found to be not credible.’ ” Guo, 463 F.3d *927at 114 (quoting Paul v. Gonzales, 444 F.3d 148, 154 (2d Cir.2006)) (emphasis omitted).
In this case, the BIA correctly noted that Singh’s claim for relief under CAT is premised on the same factual basis as his claim for asylum. Moreover, the BIA did not rely solely on the IJ’s adverse credibility determination. The BIA also considered that Singh failed to present any additional evidence demonstrating that it was more likely than not that he would be tortured if returned to India. Unlike the applicant in Zubeda, Singh has not pointed to any objective evidence suggesting that he would more likely than not be subjected to torture if removed to India. He relies on Department of State reports on country conditions in India, which do state that law enforcement authorities throughout India abuse detainees. (See, e.g., A.R. 97-98, 544.) However, as the BIA found, he has failed to present any documentary evidence suggesting that a person who aided, but was not suspected of being, a terrorist would be tortured by Indian officials. As such, we find no abuse of discretion in the BIA’s conclusion that Singh failed to establish that he was prejudiced by counsel’s failure to raise a claim for relief under the CAT. Accordingly, the denial of his motion to reconsider was appropriate.
IV.
For the foregoing reasons, we will deny both petitions for review. The stay of removal we previously granted is vacated. In light of our disposition, Singh’s motion to remand in C.A. 09-2253 is denied as moot. The Government’s motion for an order directing the parties to bear their own costs and to stay the briefing schedule is denied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480788/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven Lewis Barnes appeals the district court’s orders adopting the recommendation of the magistrate judge and dismissing his 42 U.S.C. § 1983 (2006) complaint and denying reconsideration. Barnes also challenges several pretrial orders denying appointment of counsel, denying extensions of time for discovery and to object to the report and recommendation, and denying recusal of the magistrate judge. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Barnes v. Dedmondt, No. 4:08-cv-00002-MBS, 2009 WL 3166576 (D.S.C. Sept. 29 & Dec. 10, 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/8480789/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Francis Akinro appeals the district court’s order dismissing his civil complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Akinro v. Soc. Sec. Admin., No. 1:10-cv-01170-WMN, 2010 WL 1956800 (D.Md. May 13, 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 |
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