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https://www.courtlistener.com/api/rest/v3/opinions/8480790/ | Affirmed in part, vacated in part, and remanded by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sharone White appeals his conviction and 70 month sentence for one count of conspiracy to distribute and possess with intent to distribute controlled substances in violation of 21 U.S.C. § 846 (2006), and one count of possession with intent to distribute heroin and aiding and abetting in violation of 21 U.S.C. § 841 (2006) and 18 U.S.C. § 2 (2006).
Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and certified that she has identified no meritorious issues for appeal, with the exception of the claim that White’s sentence was procedurally unreasonable because the district court did not offer an adequate explanation for the sentence. The Government has responded, and White has filed a pro se supplemental brief. For the reasons that follow, we affirm in part, vacate in part, and remand.
I. Batson Challenge
White first questions whether the district court erred in denying his (and his co-defendant, Antoine Robinson’s *) second challenge made pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). After the district court reinstated a juror pursuant to a Batson challenge, White sought to challenge an earlier strike that, at the time, had gone unchallenged. The Government argued the strike was proper because the poten*935tial juror was a social worker and might be more sympathetic to a criminal defendant.
The Equal Protection Clause prohibits the use of peremptory challenges based solely on race or gender. Batson, 476 U.S. at 86, 106 S.Ct. 1712; J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). Great deference is given to a district court’s determination of whether a peremptory challenge was based on a discriminatory motive, and the court’s ruling is reviewed for clear error. Jones v. Plaster, 57 F.3d 417, 421 (4th Cir.1995). If, in response to a Batson challenge, the Government offers a race-neutral explanation for the strike, and the defendant does not argue the explanation was pretextual, we have held that the challenge is waived. See Davis v. Baltimore Gas & Elec. Co., 160 F.3d 1023, 1027 (4th Cir.1998). Here, no such argument was raised, and we find the Batson claim was not preserved. In any event, after review of the record, we conclude that the district court did not clearly err in failing to reinstate the stricken member of the venire.
II. Sufficiency of the Evidence
Counsel questions whether the evidence was sufficient to convict White of conspiracy to distribute and possess with intent to distribute heroin. We conclude it was.
“A defendant challenging the sufficiency of the evidence faces a heavy burden.” United States v. Foster, 507 F.3d 233, 245 (4th Cir.2007). We review a sufficiency of the evidence challenge by determining whether, viewing the evidence in the light most favorable to the government, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. United States v. Collins, 412 F.3d 515, 519 (4th Cir.2005). We will uphold the jury’s verdict if substantial evidence supports it, and will reverse only in those rare cases of clear failure by the prosecution. Foster, 507 F.3d at 244-45. We do not review the credibility of the witnesses and assume that the jury resolved all contradictions in the testimony in favor of the government. Id. at 245.
To prove conspiracy to distribute and to possess with intent to distribute a controlled substance, the government must establish “beyond a reasonable doubt that: ‘(1) an agreement’ to distribute and ‘possess [heroin] with intent to distribute existed between two or more persons; (2) the defendant knew of the conspiracy; and (3) the defendant knowingly and voluntarily became a part of this conspiracy.’ ” United States v. Yearwood, 518 F.3d 220, 225-26 (4th Cir.) (quoting United States v. Burgos, 94 F.3d 849, 857 (4th Cir.1996) (en banc)), cert. denied, — U.S. -, 129 S.Ct. 137, 172 L.Ed.2d 104 (2008). Nonetheless, because a conspiracy is, “[b]y its very nature ... clandestine and covert,” proving its existence is often done through circumstantial evidence “and the context in which the circumstantial evidence is adduced.” Burgos, 94 F.3d at 857. Accordingly, the government “need not prove that the defendant knew the particulars of the conspiracy or all of his coconspirators” or that his connection to the conspiracy was anything more than “slight.” Id. at 858, 861. The “[c]ircumstantial evidence sufficient to support a conspiracy conviction need not exclude every reasonable hypothesis of innocence, provided the summation of the evidence permits a conclusion of guilt beyond a reasonable doubt.” Id. at 858.
We have reviewed the record, and find that the evidence against White, including a video and audio recording of White selling heroin to a confidential police informant, was more than sufficient to sustain the jury’s verdict.
*936III. Motion to Strike Expert Testimony
Counsel questions whether the district court erred in denying White’s motion to strike Alcohol, Tobacco, and Firearms (“ATF”) Agent Daniel Board’s testimony, which referred to prior testimony given about the amount of currency found on White’s person when he was arrested. Board referred to the $2700 in currency White possessed as indicative of proceeds from a drug distribution operation.
A district court’s evidentiary rulings are entitled to substantial deference and will only be reversed for abuse of discretion. United States v. Benkahla, 530 F.3d 300, 309 (4th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 950, 173 L.Ed.2d 146 (2009). We will find that discretion to have been abused only when the district court acted arbitrarily or irrationally. Id.
The record reveals that the arresting officer had previously testified that White possessed a significant amount of currency when he was arrested. Although the officer did not specifically state that White possessed $2700, the officer did testify that White had “over $2000” when he was arrested. We conclude that the district court did not abuse its discretion by denying White’s motion to strike.
IV. Firearms Enhancement
Counsel next questions whether the district court erred by applying a two-level increase to White’s offense level for possession of a firearm. Though White was charged with firearm offenses, the jury was unable to reach a verdict on those charges.
An appellate court reviews a sentence for reasonableness under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). This review requires consideration of both the procedural and substantive reasonableness of a sentence. Id. First, the court must assess whether the district court properly calculated the guidelines range, considered the § 3553(a) factors, analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. Id. at 49-50, 128 S.Ct. 586; see United States v. Lynn, 592 F.3d 572, 576 (4th Cir.2010) (“[A]n individualized explanation must accompany every sentence.”); United States v. Carter, 564 F.3d 325, 330 (4th Cir.2009) (same). An extensive explanation is not required as long as the appellate court is satisfied “‘that [the district court] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.’ ” United States v. Engle, 592 F.3d 495, 500 (4th Cir.2010) (quoting Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)), petition for cert. denied, 551 U.S. 338, 131 S.Ct. 165, 178 L.Ed.2d 41 (2010). Even if the sentence is procedurally reasonable, we must consider the substantive reasonableness of the sentence, “exam-in[ing] the totality of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a).” United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir.2010).
Under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1), a district court must increase a defendant’s offense level two levels if the defendant possessed a firearm during a drug offense. USSG § 2Dl.l(b)(l). The enhancement is proper when “the weapon was possessed in connection with drug activity that was part of the same course of conduct or common scheme as the offense of conviction.” United States v. Manigan, 592 F.3d 621, 628-29 (4th Cir.2010) (internal quotation marks omitted).
*937Whether the district court properly applied the enhancement under USSG § 2D1.1(b)(1) is reviewed for clear error. United States v. McAllister, 272 F.3d 228, 234 (4th Cir.2001). Under a clear error standard of review, we will reverse only if “left with the definite and firm conviction that a mistake has been committed.” United States v. Harvey, 532 F.3d 326, 336-37 (4th Cir.2008) (internal quotation marks omitted).
Here, the record supports the application of the enhancement. The Government’s informant testified that weapons were in the house where White and Robinson allegedly distributed narcotics. When police executed their search warrant on the house, they discovered four firearms and ammunition. The district court did not clearly err in determining that a sufficient link existed between these firearms and the drug conspiracy that Robinson and White allegedly furthered, and that the enhancement was proper.
V. Adequate Explanation of Sentence
Counsel for White raises one claim that she submits should be considered on its merits rather than reviewed under Anders. Counsel argues that, under Carter and Lynn, the district court did not provide an adequate statement of reasons for imposing the sentence it did on White. The Government has conceded this claim of error, and after reviewing the sentencing transcript, we concur that the district court did err, and White preserved that error for appellate review. Accordingly, we vacate White’s sentence, and remand for a resentencing in light of Carter and Lynn.
VI. Pro Se Supplemental Brief
Wfiiite has filed a pro se supplemental brief in this court. He reiterates his attorney’s claim that the district court did not provide an adequate explanation of his sentence and makes various claims of error under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the reasons stated above, we agree that the district court should have provided a more detailed explanation for White’s sentence, but find his Booker claim without merit.
Finally, in accordance with Anders, we have reviewed the record in this case and have found no additional meritorious issues for appeal. We therefore affirm the district court’s judgment with respect to White’s conviction. We vacate the judgment with respect to his sentence, and remand. This court requires that counsel inform White, in writing, of the right to petition the Supreme Court of the United States for further review. If White requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on White.
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 IN PART, VACATED IN PART, AND REMANDED.
White and Robinson both appealed their convictions and sentences, and their appeals were initially consolidated. Because counsel for White has raised claims on appeal in both an Anders and traditional format, the appeals have been deconsolidated. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480791/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Olufemi Abiodun Ogunyemi appeals the district court’s order granting 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. Ogunyemi, No. 1:05-cr00127-JAB-1 (M.D.N.C. July 23, 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/8480829/ | ON MOTION
ORDER
Upon consideration of the motion to withdraw Aesha R. Pallesen as counsel for Lowe’s Home Centers, Inc.,
It Is Ordered That:
The motion is granted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481195/ | 85403: Case View
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Case Information: 85403
Short Caption:IN RE: SINGER LIVING TRUSTCourt:Supreme Court
Related Case(s):85404
Lower Court Case(s):Clark Co. - Eighth Judicial District - P104624Classification:Civil Appeal - General - Other
Disqualifications:Case Status:Disposition Filed
Replacement:Panel Assigned:
Panel
To SP/Judge:SP Status:
Oral Argument:Oral Argument Location:
Submission Date:How Submitted:
+
Party Information
RoleParty NameRepresented By
AppellantKarina Singer
In Proper Person
Reference PartySteven J. Singer Living Trust, dated January 15, 2011
RespondentLenore BoekankampNedda Ghandi
(Ghandi Deeter Blackham)
RespondentNatasha SingerNedda Ghandi
(Ghandi Deeter Blackham)
+
Due Items
Due DateStatusDue ItemDue From
11/28/2022OpenRemittitur
Docket Entries
DateTypeDescriptionPending?Document
09/26/2022Filing FeeFiling Fee due. (SC)
09/26/2022Notice of Appeal DocumentsFiled Notice of Appeal/Proper Person. Appeal docketed in the Supreme Court this day. (SC)22-30068
09/26/2022Notice/OutgoingIssued Notice to Pay Supreme Court Filing Fee/Proper Person. No action will be taken on this matter until filing fee is paid. Due Date: 14 days. (SC)22-30072
10/12/2022Filing FeeFiling Fee Paid. $250.00 from Karina N. Singer. Check no. 779719277. (SC)
10/20/2022Notice/OutgoingIssued Notice Regarding Deadlines. (SC)22-33033
11/03/2022Order/DispositionalFiled Order Dismissing Appeal. Review of the documents submitted to this court pursuant to NRAP 3(g) reveals a jurisdictional defect. This court "ORDERS this appeal DISMISSED." SNP-JH/LS/DH (SC)22-34650
Combined Case View | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480795/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Eugene Farmer appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Farmer, No. 5:02-cr-00131-BO-1 (E.D.N.C. filed Nov. 20, 2009, entered Nov. 23, 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/8480796/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Deborah Koger appeals the magistrate judge’s * order granting Defendant’s summary judgment motion on her retaliation claims, brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 2000e to 2000e-17 (West 2003 & Supp.2010). We have reviewed the record and find no reversible error. Accordingly, we affirm the magistrate judge’s order. See Koger v. Woody, No. 3:09-cv-00090-MHL, 2010 WL 331759 (E.D.Va. Jan. 26, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
The parties consented to the exercise of the district court’s jurisdiction by a magistrate judge, as permitted by 28 U.S.C. § 636(c) (2006). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480798/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alfred Titus Shuler appeals the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006). Shuler’s challenge to the career offender enhancement cannot be addressed in a § 3582 motion. See Dillon v. United States, — U.S.-,-, 130 S.Ct. 2683, 2694, 177 L.Ed.2d 271 (2010) (“ § 3582(c)(2) does not authorize a resentencing.”). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Shuler, No. 7:96-er-00013-BR-1 (E.D.N.C. July 15, 2009). We deny Shuler’s motions to place this case in abeyance and for appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480799/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary W. Jackson appeals the district court’s order granting the Government’s motion for summary judgment and affirming the decision of the Commissioner. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Jackson v. Commissioner of Social Security, No. 2:08-cv-00041-jpj-pms, 2009 WL 2524355 (W.D.Va. Aug. 17, 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/8480887/ | ORDER
Patricia Milliken applied for Disability Insurance Benefits alleging disability due to multiple sclerosis (“MS”), right shoulder pain, and a back injury. An Administrative Law Judge (“ALJ”) decided that Mil-liken was not disabled within the meaning of the Social Security Act through her date last insured. The district court upheld the denial of benefits. Milliken appeals, and we affirm.
I. Background
Milliken alleges disability from MS, right shoulder pain, and a back injury. She had worked in an assembly job, but quit in 1996 because of problems using her hands. Milliken’s disability application was denied initially and on reconsideration. She requested a hearing before an ALJ. ALJ Maren Dougherty held a hearing on August 13, 2007, at which Milliken, represented by counsel; her daughter; a medical expert; and a vocational expert testified. The ALJ issued a decision denying Milliken’s claim. Milliken appealed to the Appeals Council, which denied review. She then sought review in the district court, and the Commissioner’s decision was upheld. This appeal followed.
Milliken’s insured status expired on March 31, 2002. Thus, she bore the burden of proving disability as of that date; she was not eligible for social security disability benefits after that. See Parker v. Astrue, 597 F.3d 920, 924 (7th Cir.2010).
This appeal focuses on Milliken’s mental impairments and complaints of debilitating fatigue. At the hearing before the ALJ, Milliken testified that she suffers from MS and is tired all the time. She claimed that she has been tired for years and has slept most of the time in the last ten years. Milliken testified that she had exacer-bations of her MS in 1997, 1999, and 2005. She stated that during the 1997 exacerbation, she had stiffness and achiness and all she could do was sleep. She described the 1999 MS exacerbation as a very, very bad “knife pain” in her shoulder that lasted for about one year. She claimed that she couldn’t sleep. Milliken and her daughter both testified that around March 2002, when the daughter was on bed rest, Milliken wasn’t feeling well, could not do much to help the daughter, and slept much of the time.
Clinical psychologist Joseph Cools, Ph. D., testified as a medical expert at the hearing. He had reviewed Milliken’s medical records and was present during her testimony and her daughter’s testimony. Dr. Cools testified that some evidence in the record indicated that prior to March 31, 2002, Milliken suffered from depression, secondary to MS. He said that depression typically goes along with MS. He noted that Milliken had chronic pain and that she complained of fatigue. Dr. Cools opined that Milliken’s depression limited her functioning to some degree. He attributed to Milliken’s depression limitations in her ability to concentrate and maintain relationships with others without having an emotional reaction. He added that she had some limitations in her ability *220to maintain concentration, attention, pace and persistence, and in her ability to engage in close relationships with others. Despite these limitations, Dr. Cools believed that Milliken probably would have been able to have limited, casual contact with the general public and would have been able to relate effectively to supervisors and coworkers on a very casual basis. He opined that from a psychological perspective, Milliken would have been able to sustain unskilled work tasks.
Susan Entenberg testified as a vocational expert (“VE”). The ALJ posed a hypothetical to her inquiring whether an individual of Milliken’s age, education, work experience (which the VE had described as unskilled), who was limited to lifting and carrying twenty pounds occasionally and ten pounds frequently, standing frequently, walking occasionally, sitting without limitation, with occasional postural activities, and no more than frequent use of the hands, could perform any work. The VE responded that such an individual could perform work at assembly jobs (10,000 jobs), packer jobs (5000 jobs), and some machine operator jobs (5000 jobs). She testified that the jobs she identified required the individual to maintain a certain rate of production. The VE added that the jobs required no contact with the general public and no more than occasional contact with coworkers and supervisors.
The ALJ found that Milliken suffered from severe impairments through her date last insured, March 31, 2002: MS, myofas-cial pain,* and depression, but that none of them met or medically equaled a listed impairment. The ALJ assessed Milliken’s residual functional capacity (“RFC”), finding that she had the capacity to perform light work with the restrictions of no more than occasional walking, standing frequently if allowed to change position, and no more than frequent use of her hands. The ALJ further found, based on the VE’s testimony, that through her date last insured, Milliken was unable to perform her past relevant work, but given her age, education, work experience, and RFC, jobs existed in significant numbers in the national economy that she could have performed. Accordingly, the ALJ found that Milliken was not disabled at any time through her date last insured.
Milliken sought review before the Appeals Council, which denied review, making the ALJ’s decision the final decision of the Commissioner. Milliken proceeded to the district court. The parties consented to a decision by a magistrate judge, and the court upheld the Commissioner’s decision. Milliken appealed.
II. Discussion
We review the ALJ’s decision and will affirm if it is supported by substantial evidence. Simila v. Astrue, 573 F.3d 503, 513 (7th Cir.2009). Substantial evidence is “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Id. (quoting Craft v. Astrue, 539 F.3d 668, 673 (7th Cir.2008)). We do not reweigh the evidence but consider whether the ALJ has built an “ ‘accurate and logical bridge’ from the evidence to her conclusion that the claimant is not disabled.” Id. (quoting Craft, 539 F.3d at 673).
Milliken makes three arguments on appeal. She first argues that the ALJ erred in failing to include in her RFC assessment Milliken’s limitations in concentra*221tion, persistence and pace.** Milliken also argues that the ALJ failed to include in her RFC assessment Milliken’s limitations in social functioning. Her last argument is that the ALJ failed to properly analyze her complaints of debilitating fatigue.
A. Limitations in Concentration, Persistence and Pace
Milliken first challenges the ALJ’s RFC assessment on the ground that it included no limitations in concentration, persistence and pace. In assessing an individual’s RFC, which “is the most [an individual] can still do despite [her] limitations,” 20 C.F.R. § 404.1545(a)(1), an ALJ “must evaluate all limitations that arise from medically determinable impairments, even those that are not severe.” Villano v. Astrue, 556 F.3d 558, 563 (7th Cir.2009) (citing Social Security Ruling 96-8p). The ALJ found that Milliken had MS, myofascial pain, and depression. The ALJ also found that the depression manifested itself primarily as fatigue, which resulted in no more than a moderate limitation in concentration, persistence and pace. (The Social Security Administration rates the degree of limitation in this functional area on a five-point scale: none, mild, moderate, marked, and extreme. 20 C.F.R. § 404.1520a(c)(4).)
More specifically, Milliken argues that the ALJ did not sufficiently account for her mental limitations by limiting her to unskilled work. She relies on Stewart v. Astrue, 561 F.3d 679 (7th Cir.2009), Craft v. Astrue, 539 F.3d 668 (7th Cir.2008), and Young v. Barnhart, 362 F.3d 995 (7th Cir.2004), to support her argument. In Stewart, we reversed the denial of a claimant’s petition for attorney’s fees under the Equal Access to Justice Act. In doing so, we rejected the Commissioner’s argument that the ALJ accounted for Stewart’s mental impairments by restricting the hypothetical to the VE to simple, routine tasks. Stewart, 561 F.3d at 684-85. In Craft, we held that a hypothetical limited to simple, unskilled work did not account for Craft’s mental limitations, including difficulties with memory, mood swings, and limitations in social functioning and concentration, persistence, and pace. Craft, 539 F.3d at 676-78. Finally, in Young, we held that the hypothetical restricted to “simple, routine, repetitive, low stress work with limited contact with coworkers and limited contact with the public” failed to adequately account for all medical limitations, Young, 362 F.3d at 1004, including an “impairment in concentration,” id. However, in concluding that the hypothetical was flawed, we emphasized the failure to account for the limitations in temperament and social judgment, not concentration. Id. at 1004.
None of these cases is on point. None holds that a limitation to unskilled work can never adequately account for moderate limitations in concentration, persistence and pace. And none involved a medical expert who effectively translated an opinion regarding the claimant’s mental limitations into an RFC assessment. That occurred in Johansen v. Barnhart, 314 F.3d 283 (7th Cir.2002), where the ALJ’s hypothetical relied on a consultative physician’s opinion that given the claimant’s mental limitations, he could still perform repeti*222tive, low-stress work. Id. at 288-89. We held that the ALJ reasonably relied on the consultant’s mental RFC assessment in formulating the hypothetical to the VE. Id.
We have a like situation here. Dr. Cools testified that on or before March 31, 2002, Milliken suffered from a medically determinable mental impairment, depression. He attributed to her depression limitations in her abilities to maintain concentration, persistence and pace, and to engage in or maintain close relationships with others without having an emotional reaction. Dr. Cools added that Milliken probably would have been able to have limited, casual contact with the general public and relate effectively to supervisors and coworkers on a very casual basis. Having identified these limitations, Dr. Cools opined that Milliken would have been able to sustain unskilled work tasks. Thus, as in Johansen, a medical expert opined that despite the claimant’s mental limitations, she could still perform unskilled work.
Granted, neither the ALJ’s RFC assessment nor the hypothetical to the VE included limitations in concentration, persistence and pace. But the RFC assessment is not an end in itself. It is but a tool with which the ALJ assesses “what work-related activities the claimant can perform despite her limitations,” Young, 362 F.3d at 1000, and assists in the determination whether she can perform past relevant work or other work, see id. Here, the ALJ’s hypothetical to the VE was limited to unskilled work and thus incorporated Dr. Cools’s assessment that given Milliken’s mental limitations, she could still perform unskilled work. Accordingly, we conclude that the ALJ adequately accounted for Milliken’s limitations in concentration, persistence and pace.
B. Limitations in Social Functioning
Milliken next argues that the ALJ’s RFC assessment failed to account for her impaired social functioning. The Commissioner concedes that the ALJ did not specifically include any limitations in social functioning. However, he asserts that the ALJ did not find that Milliken had any such limitations and, in any event, reasonably concluded that the jobs identified by the VE adequately accounted for Dr. Cools’s opinion regarding Milliken’s limitations in social functioning.
Dr. Cools testified that Milliken would have had limitations in her ability to engage in close relationships with others without having an emotional reaction. He added that she likely would have been able to have limited, casual contact with the general public and would have been able to relate effectively to supervisors and coworkers on a very casual basis. The ALJ questioned the VE about the amount of social contact that would be required for the jobs that the VE had identified as ones that an individual with Milliken’s age, education, work experience, and RFC could perform. The VE responded that the jobs she had identified did not require any contact with the general public and would not require more than occasional contact with supervisors and coworkers.
It was reasonable for the ALJ to conclude that the jobs identified by the VE accounted for the limitations in social functioning noted by Dr. Cools. Although Dr. Cools opined that Milliken could have limited, casual contact with the general public, the jobs the VE identified required even less than that: no contact with the general public. Milliken doesn’t dispute this. Instead, she argues that the VE’s testimony doesn’t account for her limitation to “casual contact” with supervisors and coworkers. While the VE stated that she wasn’t sure what “casual contact” meant, the *223ALJ’s interpretation that it meant “no more than occasional contact” is not unreasonable.’ Milliken suggests that one could have occasional contact with supervisors and coworkers that was intense in nature. True, but the VE identified only unskilled jobs. “Unskilled work is work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time.” 20 C.F.R. § 404.1568(a). Unskilled work would not seem to require intense contact with supervisors and coworkers, for example, meetings analyzing various aspects of the job, which Milliken suggests.
It is reasonably clear that Dr. Cools was drawing a distinction between close personal relationships on the one hand, and limited, casual contacts on the other. The jobs that the ALJ found Milliken capable of performing were the same jobs that the VE identified as ones requiring no contact with the general public and no more than occasional contact with coworkers and supervisors. A restriction to no more than occasional contact with others does not seem to be in tension with an inability to engage in close personal relationships. The ALJ corrected any error in failing to include in the RFC assessment limitations in social functioning by posing a hypothetical to the VE that reasonably accounted for such limitations.
C. Complaints of Debilitating Fatigue
Last, Milliken challenges the ALJ’s analysis of her complaints of debilitating fatigue. The ALJ’s assessment essentially boils down to an adverse credibility determination which is reviewed deferentially and upheld unless it is “patently wrong.” Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir.2010). We examine “whether the ALJ’s reasons for discrediting testimony are unreasonable or unsupported.” Id.
In not fully crediting Milliken’s complaints of fatigue, the ALJ stated that she found it “interesting” that Milliken and her daughter both testified that fatigue was Milliken’s biggest problem in March 2002, but the most contemporaneous medical record (from February 2002) discussed a brief episode of numbness in the feet but no complaint of fatigue. The district court found this analysis suspect, and the Commissioner does not defend it on appeal. The medical record cited by the ALJ concerned a consult for a second opinion about Milliken’s leg and foot numbness and dragging. Milliken likely had no reason to complain at that time about fatigue. Furthermore, the medical records as a whole well document Milliken’s repeated complaints of fatigue and tiredness to her medical providers over time. The testimony of Milliken and her daughter also lends support to Milliken’s claims of fatigue.
We note that the ALJ did not find that Milliken did not suffer from fatigue. Rather, she found that the intensity, persistence and limiting effects of fatigue were not debilitating. Fatigue is a common symptom of both MS and depression. National Multiple Sclerosis Society, What we know about MS, http://www.nationalms society.org/about-multiple-sclerosis/what-we-know-about-ms/symptoms/index.aspx (last visited Oct. 8, 2010); Mayoclinic.com, Depression (major depression), http://www. mayoclinic.com/health/depression/DS 00175/DSECTION=symptoms (last visited Oct. 8, 2010). That fatigue is a common symptom of MS and depression, however, reveals nothing about the severity, intensity, or persistence of fatigue that any individual may experience at a particular point in time. See National Multiple Sclerosis Soc., supra (indicating that MS symptoms can change over time). This one, weak reason for discrediting Milliken’s complaints of fatigue does not require a remand, however.
*224The ALJ also gave several good reasons for finding that Milliken’s fatigue was not disabling through her date last insured. ALJ Dougherty reasoned that prior to that date, Milliken had discrete episodes of MS that resolved. She also stated that some of Milliken’s complaints did not emerge until the 2005 exacerbation. In addition, the ALJ relied on Milliken’s own testimony, which the ALJ characterized as describing “the true line of demarcation in terms of her activities as July 2005.” The ALJ found this line of demarcation consistent with the medical evidence. And she observed that the record contained no opinion from a treating or examining physician indicating that prior to March 81, 2002, Milliken was disabled or had limitations greater than those found by the ALJ. Milliken does not dispute this last assessment of the record.
Milliken challenges the assertion that prior to her date last insured she had “discrete episodes of MS that resolved.” She argues that the ALJ identified no medical or other evidence to establish that her MS had resolved. We do not read the ALJ’s decision as asserting that Milliken’s MS had resolved itself, but that the few discrete episodes of MS exacerbation that she had before her date last insured had resolved themselves. This assertion is consistent with Milliken’s own testimony: She testified that her last and biggest exacerbation was in 2005 and that she had exacerbations in 1997 and 1999, during which her symptoms were aggravated. She also agreed that MS is known for its exacerbations and then some improvement.
Milliken identified the 2005 MS exacerbation as the point in time when she became unable to do activities she used to do. Significantly, it was during the 2005 exacerbation that she started having to use a cane all the time. It was then that she began taking medication for her depression and her mood swings “went up and down.” She also started taking medication for fatigue during her 2005 exacerbation, though she doesn’t take it all the time. She began taking Avonex for her MS as well. In addition, it was in 2005 that the heat started really bothering her and caused her to limit her activities. Milliken testified that she had vision problems since 2002, but they apparently worsened in 2005. It was then that it became more difficult for her to read and she enjoyed reading less. She used to read about a book a week; at the hearing she testified that she reads “once in a while.” Milliken also stated that before her 2005 exacerbation she cooked more “family” meals and bigger meals and made pies “once in a while,” but after 2005 she could no longer do these things. She cooked only once or twice a week, made simple meals — just salad and meat — and bought pies instead of making them.
The record also establishes that prior to the 2005 MS exacerbation, Milliken had taken a trip to Europe in 2003. On that trip she walked and pulled luggage. The record indicates that Milliken reported walking several (even five) miles a day and engaging in what she described as “a vigorous day of water aerobics” prior to her latest MS exacerbation in May 2005. To sum it up, in Milliken’s own words, since 2005 she has “changed a lot in [her] life.”
Milliken argues that the ALJ failed to detail what activities she engaged in prior to the 2005 exacerbation that indicated she was not disabled. Though the ALJ referred to Milliken’s array of activities generally, she did specifically mention an exercise program that included walking. The failure to specifically mention that the exercise program included, by Milliken’s own account, “vigorous” water aerobics and walking several miles a day does not sug*225gest that the ALJ failed to consider the rigorous nature of Milliken’s exercise program. This case is unlike Zurawski v. Halter, 245 F.3d 881, 887-88 (7th Cir.2001), in which we found that the claimant’s daily activities were “fairly restricted” — washing dishes, helping children prepare for school, doing laundry, preparing dinner — and not the sort that necessarily undermine or contradict claims of disabling pain. Id. at 887. Nor is it like Clifford v. Apfel, 227 F.3d 863 (7th Cir.2000), in which we found that the claimant’s minimal daily activities — performing household chores punctuated by rest, cooking simple meals, grocery shopping about three times a month, walking with rest after three to five blocks — did not undermine her complaints of disabling pain. Id. at 872. It is also distinguishable from Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir.2004), in which we disagreed with the ALJ that a complaint of disabling pain was inconsistent with activities such as performing household chores and walking up to two miles. As noted, Milliken herself testified about how her activities had changed since the 2005 MS exacerbation. The ALJ could reasonably find that Milliken’s testimony about her activities prior to the 2005 exacerbation undermined her complaints of disabling fatigue. That the ALJ did not explicitly mention each activity is not fatal to her analysis.
Moreover, the medical evidence supports the finding of a line of demarcation with the 2005 MS exacerbation. Milliken’s medical records show that she was referred to the Mayo Clinic for symptoms that began in May 2005. Milliken began taking several medications for her MS, fatigue, and other symptoms in 2005. Other symptoms surfaced only after Milliken’s date last insured. For example, in April 2005, Milliken complained of paresthesia (a sensation often described as numbness, tingling, pins and needles, or a pricking feeling, Nat’l Inst, of Neurological Disorders & Stroke, NINDS Paresthesia Information Page, http://www.ninds.nih.gov/ disorders/parathesia.htm (last visited Oct. 8, 2010)) and pain in her hands prior to having bilateral carpal tunnel surgery. At that time, she reported that her symptoms began two years before.
The ALJ gave good reasons supported in the record for finding that Milliken’s complaints of debilitating fatigue and other symptoms prior to her date last insured were not fully credible. Milliken has not satisfied her heavy burden of showing that the ALJ’s credibility determination is patently wrong.
We recognize that the fact that Milliken’s condition may have worsened at the time of the 2005 MS exacerbation does not compel the finding that she was not disabled prior to her date last insured. See Wilder v. Chater, 64 F.3d 335, 337 (7th Cir.1995) (“The fact that, according to her daughters, Wilder got worse in 1988 and 1989 does not indicate how bad she was in 1986.”). Nonetheless, it is Milliken’s burden to produce medical evidence to support her claim of disability prior to her date last insured. See Eichstadt v. Astrue, 534 F.3d 663, 668 (7th Cir.2008). The ALJ’s conclusion that she failed to establish disability prior to that date is supported by substantial evidence.
III. Conclusion
We AFFIRM the district court’s judgment.
Myofascial pain syndrome is a chronic form of muscle pain that centers around sensitive (trigger) points in a person’s muscles. Mayo-Clinic.com, Myofascial pain syndrome, http:// www.mayoclinic.com/health/myofascial-pain-syndrome/DS01042 (last visited Oct. 8, 2010).
Dr. Cools also said that Milliken is limited in her ability to maintain attention as well, but Milliken does not assert error with respect to the omission of this limitation. Presumably this is because the Social Security Administration’s evaluation of mental impairments includes an assessment of functional limitations in four broad areas: activities of daily living; social functioning; concentration, persistence or pace; and episodes of decompensation. 20 C.F.R. § 404.1520a(c)(3). We likewise limit our discussion to the limitations in concentration, persistence and pace. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480802/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mark Damron petitions for a writ of mandamus, alleging the district court has unduly delayed acting on certain motions in his 28 U.S.C. § 2254 (2006) petition for a writ of habeas corpus proceeding. He seeks an order from this court directing the district court to act. Our review of the district court’s docket reveals that the *1000district court denied his motions and dismissed his § 2254 case. Accordingly, because the district court has recently decided Damron’s case, we deny the mandamus petition as moot. We grant leave to proceed in forma pauperis. We deny Damron’s motions for appointment of counsel and for evidentiary hearing. 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/8480803/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Launeil Sanders appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915(e)(2)(B) (2006). We have reviewed the record and find that this appeal is frivolous. Accordingly, we dismiss the appeal for the reasons stated by the district court. Sanders v. Gaston County, No. 3:10-cv-00199-FDW-DCK, 2010 WL 2572837 (W.D.N.C. June 24, 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.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480804/ | 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. Hertz Car Rental, No. 1:10-cv-01297-JFM (D. Md. June 4, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480806/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Martin F. Salazar appeals the district court’s order denying his repetitive motion for a new trial. The district court had previously denied several motions by Salazar for a new trial, including two motions raising essentially the identical “new evidence” raised in Salazar’s instant motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Salazar, No. 1:06-cr00123-MBS-1 (D.S.C. April 7, 2008 & June 29, 2009). We deny Salazar’s motion for appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480808/ | PER CURIAM: *
Michael Issac appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence. He asserted in his § 3582(c)(2) motion that he was eligible for a sentence reduction based upon Amendments 591 and 599 to the Sentencing Guidelines. Issac also has moved for the appointment of counsel on appeal.
We first note Issac’s argument that the district court’s order included language that was irrelevant to the arguments he raised in his § 3582(c)(2) motion. Regardless of this surplus language, for the reasons discussed below, we conclude that the district court correctly found that Issac was not entitled to relief because his original sentence computations were not altered by Amendment 591 or 599.
Section 3582(c)(2) permits the discretionary modification of a defendant’s sentence in certain cases where the sentencing range has been subsequently lowered by the Sentencing Commission. See United States v. Doublin, 572 F.3d 235, 237 (5th Cir.), cert. denied, — U.S. -, 130 S.Ct. 517, 175 L.Ed.2d 366 (2009); see also U.S.S.G. § lB1.10(a). Section 3582(c)(2) applies only to retroactive guidelines amendments, as set forth in the guidelines policy statement. See § lB1.10(a). If an amendment “does not have the effect of lowering the defendant’s applicable guideline range,” a sentence reduction is not consistent with § 1B1.10 and is not authorized by § 3582(c)(2). § lB1.10(a); see also § 3582(c)(2). The Government concedes that Amendment 591 and 599 apply retroactively. See also § lB1.10(c).
Issac argued that, in light of Amendment 591, the district court applied the incorrect guideline section to his 18 U.S.C. § 1959 convictions. Amendment 591 emphasizes that, with certain exceptions not *57relevant here, a sentencing court “must apply the offense guideline referenced in the Statutory Index for the statute of conviction.” U.S.S.G.App. C, Amendment 591 (Nov.2000) (Reason for Amendment, ¶ 3). The Statutory Index provides that U.S.S.G. § 2E1.3 applies to convictions under § 1959. See U.S.S.G.App. A (Statutory Index). Because the PSR applied § 2E1.3 to Issac’s § 1959 convictions, Issac has not shown that Amendment 591 would have the effect of lowering his applicable guidelines range. See § lB1.10(a). We note that Issac apparently has misunderstood the PSR’s subsequent application of the offense level from U.S.S.G. § 2B3.1 for his underlying offenses, which was higher; however, application of the higher offense level for the underlying offenses is required by § 2E1.3 itself.
Issac also argues that, in light of Amendment 599 and his convictions for possession of a firearm under 18 U.S.C. § 924(c), the district court should not have applied various specific offense characteristics found in § 2B3.1, such as enhancements for making an express threat of death, for causing serious bodily injury, and for causing a permanent or life-threatening injury. See § 2B3.1(b)(2)(F), (b)(3)(B), and (b)(3)(C). Because the facts supporting each of these enhancements involved the use of a firearm, Issac argues that application of these enhancements and his conviction for the firearm offense constituted impermissible “double-counting.” At the time of Issac’s sentencing, the Guidelines provided that if sentences were to be imposed for both a violation of § 924(c) and for an underlying offense, any specific offense characteristics for the possession, use, or discharge of a firearm should not be applied to the underlying offense. See § 2K2.4, comment, (n.2) (1991). Although Amendment 599 altered and clarified the text of the relevant Application Note, it did not change the general rule against applying the firearms enhancements to the underlying offense where the defendant also was convicted under § 924(c). See U.S.S.G.App. C, Amendment 599 (Nov.2000). Because Amendment 599 does not have the effect of lowering Issac’s applicable guideline range, a sentence reduction is not consistent with § IB.10 and is not authorized by § 3582(c)(2). § lB1.10(a); see also § 3582(c)(2).
Although we have not held that a defendant is entitled to counsel when appealing a § 3582(c)(2) motion, we have found that we have the discretion to appoint counsel in such proceedings “in the interest of justice.” United States v. Robinson, 542 F.3d 1045, 1052 (5th Cir.2008). Because we have concluded that the district court did not abuse its discretion in denying Issac’s § 3582(c)(2) motion, we deny his motion for appointment of counsel.
Accordingly, the judgment of the district court is AFFIRMED. The Government’s motion for summary affirmance is GRANTED, and its alternative motion for an extension of time is DENIED. Issac’s motion for appointment of counsel also is DENIED.
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/8480888/ | ORDER
Carlos Lewis was convicted by a jury of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). He appeals, claiming both a violation of the Speedy Trial Act, 18 U.S.C. § 3161, et seq., and that the evidence was insufficient to support his conviction.
The Speedy Trial Act violation claim is a non-starter because Lewis failed *227to move to dismiss the indictment prior to the start of his trial. So the issue, as far as our review is concerned, is waived. See United States v. Broadnax, 536 F.3d 695 (7th Cir.2008). But even if Lewis had made the motion, and even if it would have been granted, he would have gained nothing except more delay as the dismissal, in all likelihood, would have been without prejudice to the issuance of a new indictment. Why do we say that? Well, because even if some of the time between Lewis’ indictment and the start of his trial should not have been excluded from the 70-day speedy trial clock as recently clarified by Bloate v. United States, — U.S. -, 130 S.Ct. 1345, 176 L.Ed.2d 54 (2010), the “violation” here would have been minor and dismissal of the charges with prejudice would have been too drastic a remedy to impose for the violation. Lewis would have been indicted again and his trial would have kicked off a few months later.
Turning to the sufficiency of the evidence claim, we start by recalling the facts, as we are required to do at this stage of the case, in the light most favorable to the jury verdict. As so viewed, Lewis, who was a felon in August of 2009, got into a squabble with a Madison (Wisconsin) taxi driver over a fare. Things became heated when Lewis told the driver, in a threatening manner, “I have something for you.” Alarmed, the cab driver hailed a nearby police officer at which point Lewis got out of the cab and started to walk away. The officer asked him to stop but Lewis took off running. The officer gave chase. Although he briefly lost sight of Lewis when he rounded a corner, as luck (bad luck, actually, for Lewis) would have it, an employee of an Einstein Bagels store close to the chase route was outside his store having a smoke. He noticed a man running around a corner and he saw him “chuck” something onto the roof of a building belonging to a concern called Dream Bikes. Immediately after seeing this, the watchful employee saw a police officer round the same corner chasing-the man. The officer saw the man climb a fence. Lewis was subsequently arrested by officers while hiding under some bushes near the fence. Later, a loaded Glock .22 caliber pistol was recovered from the roof of the Dream Bikes building by one of the officers. The issue for the jury was simple: did Lewis, a felon, possess the gun recovered from the roof?
Prevailing on a sufficiency of the evidence claim is a tall order for any defendant, because he must show that after viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could find guilt beyond a reasonable doubt. United States v. Stevens, 453 F.3d 963, 965 (7th Cir.2006). To sustain a conviction under 18 U.S.C. § 922(g) possession of a firearm may be actual or constructive. United States v. Hampton, 585 F.3d 1033, 1040 (7th Cir.2009). Actual possession exists when a person “knowingly maintains physical control over an object.” Stevens, 453 F.3d at 965. Juries are entitled to use common sense in making reasonable inferences from circumstantial evidence, and circumstantial evidence is no less probative of guilt than direct evidence. United States v. Starks, 309 F.3d 1017, 1021 (7th Cir.2002).
It’s true that no witness testified to actually seeing Lewis with a gun. Nor was any fingerprint or DNA evidence offered to directly connect Lewis to a gun. But there was, we think, sufficient circumstantial evidence pointing to the conclusion that he did. First, he made what could be considered a verbal threat to the taxi driver. Second, he bolted when the officer asked him to stop. As a felon who could *228not legally possess a gun, disregarding the command of the officer and running away supports the inference that he had something (a gun?) that he didn’t want to be caught possessing. Add to this the heads-up observations of the chase by the Einstein Bagels employee, the recovery of the Glock on the roof of the Dream Bikes store where the employee saw Lewis “chuck” something while being pursued by an officer, and the discovery of Lewis hiding in some bushes at the end of the chase route. Putting this all together, we think the jury could have reasonably concluded that Lewis possessed the gun before he tossed it on the roof with an officer in hot pursuit.
For these reasons, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480889/ | ORDER
Jose Dominguez, a Mexican citizen, was deported in 1999 after convictions in Wisconsin for arson and delivery of cocaine. Since then he has returned to the United States and been removed two more times. Most recently he was found in Watertown, Wisconsin, and charged with unauthorized presence after removal, 8 U.S.C. § 1326(a). After the district court denied his motion to dismiss the indictment, Mr. Dominguez entered a conditional guilty plea that allows him to challenge the court’s ruling on appeal. See Fed.R.Crim.P. 11(a)(2). The *233district court sentenced him to 24 months’ imprisonment, below the guidelines range of 46 to 57 months. Mr. Dominguez filed a notice of appeal, but his appointed attorney has concluded that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mr. Dominguez has not responded to counsel’s submission. See Cir. R. 51(b).
Our review of counsel’s Anders submission is limited to the potential issue discussed in his facially adequate supporting brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel has identified only one possible issue for appeal: whether Mr. Dominguez could challenge the denial of his motion to dismiss the indictment. Mr. Dominguez has not indicated, however, that he wants his guilty plea set aside if the ruling on his motion to dismiss should stand, so counsel correctly forgoes discussion of other possible challenges to the voluntariness of the plea or the adequacy of the plea colloquy. See Fed.R.Crim.P. 11(b); United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002).
Mr. Dominguez was born in Mexico in 1978 after his married parents had traveled from their home in the United States for a brief visit with family. It is unclear whether Mr. Dominguez’s father was lawfully in the United States prior to the trip, but Mr. Dominguez’s mother, then 17, was a citizen. Had Mr. Dominguez been born after his parents returned to the United States, he would have been a citizen. See 8 U.S.C. § 1401(a) (1976). He also would have acquired his mother’s citizenship, despite his birth in Mexico, if she had been unmarried or had reached the age of 19 before he was born. See 8 U.S.C. §§ 1401(a)(7),1409(c) (1976). Mr. Dominguez could later have acquired legal residency or citizenship through his parents (his father became a permanent resident in 1979), but the family did not try to complete the process until Mr. Dominguez had incurred several felony convictions, and by then it was too late. See 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2006). The governing immigration statute has since been amended, and if Mr. Dominguez had been born after the change, he would be a United States citizen. See Pub.L. No. 99-653, § 12,100 Stat. 3657 (amending 8 U.S.C. § 1401(g) (1986)). In arguing for dismissal of the indictment, Mr. Dominguez asserted that, for all practical purposes, he is a United States citizen. He acknowledged his alien status under the former version of the statute, but he argued that the law discriminates on the basis of marital status and age and thus deprives him of equal protection. The district court concluded that Mr. Dominguez had Article III standing to raise this constitutional claim but reasoned that the claim fails on the merits.
In his Anders brief, counsel concludes that the district court correctly analyzed and rejected Mr. Dominguez’s motion to dismiss, and that consequently an appellate challenge would be frivolous. We agree with counsel’s conclusion that the potential issue would be frivolous, but our reason differs. What the parties and the district court overlooked is that 8 U.S.C. § 1326, the statute of conviction, sharply curtails challenges to a defendant’s immigration status within the context of the criminal case. See United States v. Roque-Espinoza, 338 F.3d 724, 728 (7th Cir.2003) (explaining that § 1326(d) increased the procedural requirements for a defendant challenging removal in the context of a prosecution under § 1326(a)).
Mr. Dominguez’s motion to dismiss the indictment is a challenge to his prior removals. See United States v. Marguet-Pillado, 560 F.3d 1078, 1081, 1084 (9th Cir.2009) (construing argument that § 1326(a) prosecution should be dismissed *234on ground that defendant was United States citizen as collateral attack on prior order of removal). Section 1826(d) provides that a defendant in a criminal proceeding cannot dispute an order of removal unless (1) he exhausted the administrative remedies available to challenge the removal; (2) the removal proceedings improperly denied him the opportunity for judicial review; and (8) the entry of the order of removal was fundamentally unfair. See 8 U.S.C. § 1326(d); United States v. Arita-Campos, 607 F.3d 487, 491 (7th Cir.2010); United States v. De Horta Garcia, 519 F.3d 658, 660-61 (7th Cir.2008); United States v. Santiago-Ochoa, 447 F.3d 1015, 1019 (7th Cir.2006). Despite the conjunctive nature of the statute, we have not resolved whether the defendant in every instance must establish all three requirements, see Arita-Campos, 607 F.3d at 491, though four of five circuits to decide the question have answered affirmatively. Compare United States v. Torres, 383 F.3d 92, 98-99 (3d Cir.2004); United States v. Wilson, 316 F.3d 506, 509 (4th Cir.2003); United States v. Zelaya, 293 F.3d 1294, 1297 (11th Cir.2002); and United States v. Fernandez-Antonia, 278 F.3d 150, 157 (2d Cir.2002), with United States v. Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir.2001). Mr. Dominguez made no effort to show that he satisfied any element of § 1326(d), which would have been his burden. See Arita-Campos, 607 F.3d at 490; United States v. Adame-Orozco, 607 F.3d 647, 651 (10th Cir.2010); United States v. Earle, 488 F.3d 537, 541 n. 4 (1st Cir.2007); Santiago-Ochoa, 447 F.3d at 1019. In the criminal case he introduced no information about his efforts, if any, to challenge his several removals either administratively or judicially. Because Mr. Dominguez did not even attempt to carry his burden below, an appeal challenging the denial of his motion to dismiss would be frivolous. Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480892/ | ORDER
Wisconsin inmate Donelly Smith appeals the denial of his second motion under Rule 60(b) of the Federal Rules of Civil Procedure seeking relief from a summary judgment granted in favor of the defendants, two Wisconsin parole officials he had sued under 42 U.S.C. § 1983. We affirm.
Smith sued Spencer Siarnicki, his parole officer, and Mike Gollinger, Siarnicki’s supervisor, after being ordered to serve 90 days in jail for failing to complete a domestic-violence program required as part of his extended supervision. In a written statement he signed during an interview with Siarnicki, Smith said he stopped attending the program due to a lack of funds. Siarnicki and Gollinger recommended a penalty of confinement, and the Department of Corrections sanctioned Smith with 90 days of incarceration. See Wis. Stat. § 302.113(8m)(b).
Smith filed a complaint under § 1983, alleging that Siarnicki and Gollinger violated his due-process rights by sending him to jail without a hearing. A magistrate judge, presiding by consent, granted summary judgment for Siarnicki and Gollinger, concluding that there was no dispute that Smith failed to comply with the conditions of his supervision. Smith did not appeal and instead moved four months later for relief from judgment on the basis that he did not receive notice of the defendants’ filings or the court’s decision because of problems receiving his mail while incarcerated. The magistrate judge denied the motion, explaining that Smith bore responsibility for not receiving his mail because he did not update the court with his current address. The court also noted that Smith had managed to file a timely response to the defendants’ summary-judgment motion while he was in prison and that no mail addressed to him was ever returned as undeliverable.
More than a month later, Smith filed a second motion for relief from judgment. In this motion Smith for the first time alleged that the court’s earlier decisions were procured by fraud — namely, that Siarnicki and Gollinger fabricated the written statement in which Smith admitted he stopped attending counseling. The court denied the motion, stating that Smith failed to present sufficient grounds to warrant relief under Rule 60(b).
On appeal Smith argues that the district judge did not properly apply Rule 60(b)(3), under which fraud by an adverse party can be grounds for relief from final judgment. But he has not shown how the defendants’ alleged fraud prevented him from fully and fairly presenting his case. See Wickens v. Shell Oil Co., 620 F.3d 747, 758-59 (7th Cir.2010); Cook v. City of Bella Villa, 582 F.3d 840, 855 (8th Cir.2009); Ty Inc. v. Softbelly’s, Inc., 353 F.3d 528, 536 (7th Cir.2003). To the contrary, Smith had ample opportunity to dispute the authenticity of his statement when he responded to Siarnicki and Gollinger’s motion for summary judgment. Yet it was not until his second motion for relief from the judgment that he claimed the statement was fabricated. Rule 60(b)(3) is not an appropriate vehicle to allege fraud that could have been asserted before the entry of final judgment. See Gleash v. Yuswak, 308 F.3d 758, 761 (7th Cir.2002); Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir.2000).
*252Smith also renews several arguments from his first postjudgment motion; namely, that he never received notice of filings related to the underlying summary-judgment proceedings and that his pro se status relieves him of the obligation of complying with court rules. But the magistrate judge properly rejected those arguments because they were mere disagreements with the court’s prior rulings. Rule 60(b) is not a substitute for an appeal or a means of extending the time for appellate review. Gleash, 308 F.3d at 761. If Smith was dissatisfied with the district court’s ruling on his first postjudgment motion, then his recourse was to appeal to this court, see Madej v. Briley, 371 F.3d 898, 899 (7th Cir.2004), not to file a second motion raising similar arguments.
For the foregoing reasons, we Affirm the decision of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480809/ | PER CURIAM: *
Don A. Harper, federal prisoner #24496-013, appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition, in which he challenged his convictions for armed bank robbery and for using or carrying a firearm during the robbery. The district court determined that Harper could not proceed under Section 2241 because his claims did not satisfy the requirements of the “savings clause” of 28 U.S.C. § 2255(e). Harper’s brief is entirely devoted to the merits of his claims for relief. Harper has not argued, much less shown, that he is entitled to proceed under Section 2241 based on the savings clause of Section 2255(e). See Reyes-Requena v. United States, 243 F.3d 893, 900-01, 904 (5th Cir.2001). Harper has waived the issue by failing to brief it. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.1987). The judgment of the district court is AFFIRMED. Harper’s emergency motion for affirmative relief is DENIED.
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/8480810/ | PER CURIAM: *
The Federal Public Defender appointed to represent Jorge Alberto Esquivel-Me-xia 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). Esquivel-Mexia 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/8480811/ | PER CURIAM: *
The Federal Public Defender appointed to represent Daryl Sam has moved for *71leave to withdraw from representation in Sam’s direct criminal appeal and in his appeal from the denial of a motion for relief pursuant to 18 U.S.C. § 3582(c)(2). Counsel has filed briefs in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Sam has filed a response. IT IS ORDERED that Sam’s appeals are CONSOLIDATED. Our independent review of the record, counsel’s briefs, and Sam’s response discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motions for leave to withdraw are GRANTED, counsel is excused from further responsibilities herein, and the APPEALS ARE DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *71published 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/8480814/ | PER CURIAM: *
Keri Richard sued DuPont Company for discrimination under the American with Disabilities Act and for wrongful termination under Title VII of the Civil Rights Act. The district court granted summary judgment in DuPont’s favor. On appeal, Richard contends that the district court improperly weighed summary judgment *169evidence. We conclude that no genuine issue of material fact exists. Consequently, we AFFIRM.
We review a grant of summary judgment de novo, applying the same standard as the district court. Noble Energy, Inc. v. Bituminous Cas. Co., 529 F.3d 642, 645 (5th Cir.2008). In determining whether a genuine issue as to any material fact exists, we examine the evidence in the light most favorable to the nonmoving party. Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 348—49 (5th Cir.2008).
Richard began her employment as a full-time administrative assistant at DuPont in 1997. Richard contends that while she was employed at DuPont, she was substantially limited in the major life activity of thinking. Her limitations allegedly were caused by depression and anxiety. According to Richard, DuPont repeatedly denied her requests for reasonable accommodation. As a result of DuPont’s failure to accommodate Richard, her depression and anxiety worsened, leading to her poor performance and subsequent termination.
Richard also makes a claim for pregnancy discrimination as her depression and anxiety problems were related in part to her second pregnancy.
As to the ADA claim, Richard contends the district court erred in holding she was not substantially limited in the major life activity of working. This finding constituted error, she alleges, because her claim was that she was substantially limited in the major life activity of thinking. Our review of the district court’s decision, announced orally after a hearing and followed by a written order denying a motion to alter the judgment, was that the court found no evidence to support that Richard suffered from a disability. Her own physician testified she was not disabled as a result of her depression and was able to function in the workplace. None of the evidence offered by Richard indicates she suffered from a disability that substantially limited her ability to work or think.
Richard relies on a recent decision of this court to support her arguments that the district court erred. See EEOC v. Chevron Phillips, 570 F.3d 606 (5th Cir.2009). In that case, the plaintiff was severely limited in the major life activities of caring for herself, sleeping, and thinking. Id. at 615. The plaintiff had to live with her sister as she was unable to cook, shop for food, zip up her own clothes, or use the bathroom without assistance. Id. at 617. She slept only one to two hours a night and was unable to remember her son’s name on occasion. Id. At times, her concentration problems caused her to miss exits while driving and even fall asleep at the wheel. Id. Her treating physician indicated her substantial limitations would be permanent and recommended she take a month off work. Id. at 609.
By contrast, here the evidence shows Richard’s concentration level was sufficient to allow her to manage the construction of her new home, manage her household finances, and care for her son. Additionally, Richard’s treating physicians did not consider her depression or anxiety to be disabling. Neither physician suggested Richard seek accommodations from DuPont for her condition. The record does not support a reasonable inference that Richard was substantially limited in the major life activities of working or thinking. DuPont therefore had no duty to make reasonable accommodations.
The district court also granted summary judgment to DuPont on Richard’s pregnancy discrimination claim. Richard concedes DuPont met its burden to articulate a nondiscriminatory reason for her discharge. Richard therefore was required to support with some evidence *170that DuPont’s reasons were false or were a pretext for the claimed discrimination. Gowesky v. Singing River Hosp. Systems, 321 F.3d 503, 511 (5th Cir.2003). She did not present any supporting evidence, and thus there was no dispute of material fact on the point.
The judgment of the district court 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/8480815/ | ORDER
James Bedree alleges that everyone involved in a series of events loosely related to the administration of his late sister’s estate had conspired to deprive him of several constitutional rights. See 42 U.S.C. § 1983. The district court dismissed most of his claims on jurisdictional grounds and granted summary judgment for the defendants on the others. We affirm the judgment.
According to James, a few months before his sister Emily’s death, she conveyed some real estate to him. James ran his business out of one of these properties, and despite the conveyance, he still had a lease with his sister. After her death, Emily’s estate, represented by her nephew Mitchell Bedree, claimed that her signature on the deeds had been forged. At a bench trial in Indiana state court, a handwriting expert testified that the signatures on the deeds were not Emily’s. The court concluded that the deeds were fakes and declared them void. The Court of Appeals of Indiana affirmed. See Bedree v. Bedree, 747 N.E.2d 1192, 1198 (Ind.Ct.App.2001). The property became part of Emily’s estate.
In 2001, a few months after the trial, Fort Wayne’s Neighborhood Code Enforcement Division issued James a citation and ordered him to appear in court on the charge that the property he leased from Emily violated a city ordinance. But James did not appear at his court hearing and so he was arrested. The day after his arrest, he appeared in court and was released; the charges were dropped the next month.
Meanwhile, the administration of Emily’s estate continued. The estate’s attorneys obtained fees for their services and tried to negotiate a lease with James, asking for $2,000 a month plus utilities; James insisted this was unreasonable, and the estate evicted him. At some point, Emily’s estate found a promissory note from James payable to Emily; James maintains that the note was fabricated. After an Indiana state court entered judgment on the note on behalf of the estate, James peppered the Indiana state courts with motions until a state-court judge barred him from filing any more actions relating to Emily’s estate.
So in 2004, James filed a complaint in federal court. He alleged that the municipal defendants — the Enforcement Division, its employees, and the city clerk — wrongfully arrested and imprisoned him. He also sued Mitchell, Emily’s estate, and its lawyers. He claimed that they fraudulently deprived him of the real estate deeded to him by his sister; that he lost his business when he was evicted; that the estate’s lawyers improperly recovered on the promissory note, which he insists was the product of an “unlawful search and seizure”; that Mitchell breached his fiduciary duty to Emily’s estate by submitting fraudulent claims for attorney’s fees; and that counsel improperly collected these fees. He also named as coconspirators many of the state court judges who ruled against him.
The district court dismissed the complaint under the Rooker-Feldman doctrine, which prohibits lower federal courts from reviewing decisions of the state courts in civil matters. D.C. Ct. of Appeals v. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, 44 S.Ct. 149, 68 L.Ed. 362 (1923); see also Exxon Mobil Corp. v. Saudi Basic Indus. *314Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). But we vacated and remanded because, at the time, the record did not contain enough information to allow us to determine to which of Be-dree’s claims we could properly apply Roolcer-Feldman or the probate exception to federal jurisdiction. See Bedree v. Lebamoff, 202 Fed.Appx. 913, 915-16 (7th Cir.2006). On remand the district judge recused herself, the defendants supplemented their original filings, and after a volley of motions, the new district judge again disposed of all James’s claims in a series of rulings.
Now on appeal, James takes issue with our refusal to reassign the case to a different district judge on remand, see Cir. R. 36, the district court’s grant of summary judgment for the municipal defendants, and the dismissal of the estate-related defendants on jurisdictional grounds. We deal with each of these issues in turn.
First, James contends that after this court’s remand, we should have reassigned the case to a new district judge. Circuit Rule 36 authorizes us to reassign a case on a remand for a new trial. See Cir. R. 36; Cange v. Stotler & Co., 913 F.2d 1204, 1208 (7th Cir.1990). But James’s case never reached trial. James further suggests that reassignment was necessary because the judge’s prior dismissal of his complaint showed her prejudice against the case. But judicial rulings rarely present a valid basis to question a judge’s impartiality. Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994); Collins v. Illinois, 554 F.3d 693, 697 (7th Cir.2009). In any event, the judge later did recuse herself.
James also takes issue with the district court’s grant of summary judgment for the municipal defendants. The court ruled that his wrongful arrest and false imprisonment claims, see 42 U.S.C. § 1983, were barred by Indiana’s 2-year statute of limitations for personal-injury actions, see Ind.Code § 34-11-2-4. James insists that the 5-year statute of limitations applicable to actions against law enforcement for acts in the course of their official duty applies to this case. See Ind. Code § 34-11-2-6. This argument comes too late as he did not make this argument in the court below. See, e.g., Everroad v. Scott Track Sys., Inc., 604 F.3d 471, 480 (7th Cir.2010). In any case, the statute of limitations for claims brought in federal court in Indiana under 42 U.S.C. § 1983 is the same as for personal-injury actions, which in Indiana, is two years. See, e.g., Hoagland v. Town of Clear Lake, Ind., 415 F.3d 693, 699-700 (7th Cir.2005); Behavioral Inst. of Ind., LLC v. Hobart City of Common Council, 406 F.3d 926, 929 (7th Cir.2005); Perez v. Sifel, 57 F.3d 503, 505 (7th Cir.1995).
Next, James attacks the district court’s dismissal of the estate-related defendants. His arguments are difficult to follow, but we understand him to suggest that the district court failed to explain why it dismissed his claims against these defendants. See Cir. R. 50; Helcher v. Dearborn Cnty., 595 F.3d 710, 719 (7th Cir.2010). But the court did explain its reasons thoroughly in a series of orders. Because the court’s reasoning is apparent from the record, no remand is required. See Helcher, 595 F.3d at 719 n. 4; United States v. Forman, 553 F.3d 585, 590 (7th Cir.), cert. denied, — U.S. -, 129 S.Ct. 2817, 174 L.Ed.2d 310 (2009).
We also understand him to argue that the district court wrongly concluded that it lacked subject-matter jurisdiction over his claims seeking relief for the voided deeds, his eviction, the promissory note, and the attorneys’ fees obtained from the estate. But on appeal he ignores the Rooker-Feldman issue. The record shows that, after litigating the matters fully in *315state court, he lost all his claims opposing the voided deeds, his eviction, and the promissory note. As the state-court loser, he cannot bring suit in federal court to obtain relief that would effectively set aside the state-court judgments on those matters. See, e.g., Gilbert v. Ill. State Bd. of Educ., 591 F.3d 896, 900 (7th Cir.2010); Johnson v. Orr, 551 F.3d 564, 567-68 (7th Cir.2008). The district court also concluded that the probate exception to federal jurisdiction barred it from adjudicating James’s challenges to the attorneys’ fees awarded in the probate proceeding. The probate exception reserves to state probate courts the administration of a decedent’s estate, and it precludes federal courts from trying to dispose of property that is in the custody of the state probate court. Marshall v. Marshall, 547 U.S. 293, 311-12, 126 S.Ct. 1735, 164 L.Ed.2d 480 (2006); Struck v. Cook Cnty. Pub. Guardian, 508 F.3d 858, 860 (7th Cir.2007). Legal fees are costs of administering the estate, see Lurie v. Comm’r, 425 F.3d 1021, 1028 (7th Cir.2005), and thus, if the district court weighs in on the propriety of these fees it would improperly intrude into administration of the estate.
Last, James insists that his breach-of-fiduciary-duty claim against Mitchell should have proceeded in federal court. See Jones v. Brennan, 465 F.3d 304, 307-08 (7th Cir.2006). But we explained in our prior decision that, even though this falls outside the scope of Rooker-Feldman and the probate exception, this claim alone does not support federal jurisdiction. Bedree, 202 Fed.Appx. at 915.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480816/ | ORDER
Domenico de Tommaso and his family entered the United States from Italy under the Visa Waiver Program. That program allows citizens of certain countries to visit the United States for up to 90 days without first applying for a visa if they waive their right to contest removal (except on asylum grounds). They chose not to leave the United States. Years later, long after the 90-day period expired, de Tommaso applied to adjust his status to permanent resident based on an approved labor certification. The Department of Homeland Security, however, exercised its discretion to deny the application, ordered him removed for violating the terms of the Visa Waiver Program, and refused to reopen or reconsider the case. In his petition for review (for himself and his family), de Tommaso argues that the Department may not remove him because it erred in concluding that he is not eligible for permanent residency. But we lack jurisdiction to consider many of de Tommaso’s arguments, and the remaining ones have no merit. Accordingly, we dismiss in part and deny in part the petition for review.
De Tommaso has lived in the United States since April 1998, except for a brief visit back to his native Italy in 2003. In 1999 his then employer began the process of sponsoring him for permanent residency by seeking labor certification from the Department of Labor. It is unclear whether or when this first certification form was properly filed with the Department of Labor, but a different employer filed a second labor-certification form on de Tomma-so’s behalf in November 2003. After the Department of Labor approved that certification, de Tommaso’s employer then submitted a visa petition on his behalf. Once that petition was approved, de Tommaso applied for permanent residency in July 2007, claiming that he was eligible to adjust his status under § 245(i) of the Immigration and Nationality Act, see 8 U.S.C. § 1255(i).
Citizenship and Immigration Services, an agency within the Department of Homeland Security, denied the application for adjustment of status on January 23, 2009. The agency acknowledged that de Tommaso would have been eligible to ask for an adjustment of status under § 245(i) if a timely labor certification had been properly filed but concluded that he had furnished “no evidence that an approvable visa petition or application for labor certification was filed on [his] behalf on or before April 30, 2001,” as § 245(i) requires.
Six days later, on January 29, 2009, the Department ordered de Tommaso removed. It required him to leave the country as a Visa Waiver Program violator and instructed federal agents to remove him from the country based on this “final order.” His “bag and baggage” letter instructed him to appear for departure three weeks later. De Tommaso failed to appear and instead administratively appealed the denied application for permanent residency, requesting that the agency reopen *320and reconsider his case. He argued that the agency should deem him eligible for an adjustment under § 245(i) because his original labor-certification form was for the same type of work as his second application. On March 9, 2009, the Department denied de Tommaso’s motion to reopen and reconsider his case. It once again concluded that he was not eligible for permanent residency under § 245(i) because, although his original employer had completed the first labor-certification form, the agency had “no evidence that it was properly filed -with the Department of Labor.”
Ten days after the Department denied de Tommaso’s motion to reconsider and reopen, he filed a petition for a writ of habeas corpus in the Northern District of Illinois. The district court concluded that, in light of the REAL ID Act, Pub.L. No. 109-13, § 106,119 Stat. 231 (2005), it no longer had jurisdiction over the case but that 28 U.S.C. § 1631 authorized it to transfer de Tommaso’s case to us. Once the ease arrived here, we stayed the proceedings to await our then pending en banc decision in Bayo v. Napolitano, 593 F.3d 495 (7th Cir.2010).
In Bayo we considered the case of an alien who entered the United States under the Visa Waiver Program but signed a waiver written in a language that he claimed not to have understood. As noted earlier, in exchange for the privilege to visit the United States for 90 days without a visa, the Program requires participants to waive their right to contest removal on any non-asylum ground including, as in Bayo’s case, adjustment of status based on a marriage occurring after the 90 days. Bayo, 593 F.3d at 498. We held that these waivers are enforceable unless the alien proves that the waiver was not “knowing and voluntary” and that it caused prejudice, meaning that the alien would have secured alternative, lawful admission to the country had he understood, and declined to sign, the waiver. Id. at 504-06. Bayo could not prove prejudice. After deciding Bayo, we resumed de Tommaso’s case and ordered him to distinguish himself, if possible, from the petitioner in Bayo.
On appeal de Tommaso does not claim that he misunderstood the terms of his waiver and did not knowingly assent to it. Rather, he suggests two differences between his case and Bayo. First, he argues that his case involved an application for permanent residency based on § 245(i), a provision allowing for adjustment of status based on (as relevant here) a labor certification, which was not at issue in Bayo. He also argues that, because he was eligible for adjustment of status under § 245(i), the removal-hearing waiver prejudiced him by hindering his pursuit of that relief.
Before we can address the merits of de Tommaso’s arguments, however, we must first consider any potential limits on our jurisdiction. The government notes that the 30-day filing deadline to obtain judicial review of a removal order is jurisdictional and argues that we cannot hear this case because de Tommaso filed his petition more than 30 days after the Department ordered him removed on January 29, 2009. See Asere v. Gonzales, 439 F.3d 378, 380 (7th Cir.2006); Sankarapillai v. Ashcroft, 330 F.3d 1004,1005-06 (7th Cir.2003). De Tommaso does not dispute the filing date, but he asserts that his appeal is nonetheless timely because the Department did not issue a final order of removal until it refused to reopen or reconsider his case, and he filed his petition 10 days after that decision. But de Tommaso’s assertion is incorrect. The title of the document that the Department furnished to de Tommaso on January 29, 2009, states without qualification that he is “Ordered Removed.” See generally, Ira J. *321Kurzban, Immigration Law Sourcebook, 1216 (12th ed.2010) (explaining that, in cases involving entrants under the Visa Waiver Program, the Department has authority to issue final orders of removal). Moreover, the order’s finality was not affected by a later-filed motion to reopen or reconsider. See Stone v. INS, 514 U.S. 386, 401-03, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995); Gao v. Gonzales, 464 F.3d 728, 729 (7th Cir.2006). By waiting to file his petition until after the agency had denied his motion to reopen or reconsider, de Tommaso lost any opportunity he had to challenge the merits of the underlying decision. We therefore dismiss his petition for lack of jurisdiction to the extent it challenges the removal order.
This is not the end, though, because de Tommaso did file his petition within 30 days of the denied motion to reopen or reconsider. We have jurisdiction to review denied motions to reopen and reconsider for abuse of discretion, see Kucana v. Holder, — U.S. -, 130 S.Ct. 827, - L.Ed.2d - (2010); Raghunathan v. Holder, 604 F.3d 371, 376 (7th Cir.2010), but de Tommaso’s brief does not explain how the Department erred in deciding that motion. Instead, de Tommaso devotes his entire appeal to arguing that he is eligible for permanent residency under § 245(i) and how the removal-hearing waiver prejudiced his ability to pursue that adjustment. Because these arguments challenge only the underlying removal order, de Tommaso has abandoned any challenge to the denied motion to reopen or reconsider. See Asere, 439 F.3d at 380-81; Brucaj v. Ashcroft, 381 F.3d 602, 611 n. 7 (7th Cir.2004).
But even treating de Tommaso’s brief as challenging the denial of his motion to reopen and reconsider, we still must deny his petition because the Department did not abuse its discretion in denying that post-removal motion. See Kucana, 130 S.Ct. at 834; Raghunathan, 604 F.3d at 376; Selimi v. Ashcroft, 360 F.3d 736, 739 (7th Cir.2004). As already mentioned, de Tommaso argues that his eligibility for adjustment under § 245(i) distinguishes his case from Bayo because that case did not involve the same adjustment-of-status provision. But this factual difference is immaterial to the consequences of an otherwise knowing and voluntary waiver under the Visa Waiver Program. In Bayo we held that we lacked authority to consider whether an alien who entered under the Visa Waiver Program could remain in the United States “on some other ground, such as, for example by adjusting his status.” 593 F.3d at 500. The difference between an entrant who wants to resist removal through a marriage-based adjustment of status and one who seeks labor-based adjustment is irrelevant to the effect of the waiver, which is the loss of the right to contest removal. The Department therefore committed no abuse of discretion by refusing to reopen or reconsider on this ground.
De Tommaso also argues that the waiver prejudiced his ability to seek relief that was otherwise available to him at a removal hearing, namely review of the Department’s denial of his petition to adjust his status under § 245(i). But that is the very purpose of a valid waiver: it precludes aliens admitted under the Program from objecting to removal proceedings based on requests to adjust status. Bayo, 593 F.3d at 500. Furthermore, even apart from the waiver, the arguments that de Tommaso advances merely attack the merits of the agency’s discretionary decision denying his application. Those arguments cannot be considered in this appeal because we lack jurisdiction to review discretionary decisions regarding an alien’s ability to seek adjustment of status under *322§ 245(i). See 8 U.S.C. § 1252(a)(2)(B)(i); Lee v. U.S. Citizenship & Immigration Servs., 592 F.3d 612, 619 (4th Cir.2010); Jarad v. Gonzales, 461 F.3d 867, 868-69 (7th Cir.2006). Accordingly, for this reason as well, the Department did not abuse its discretion in denying his post-removal motions.
The petition for review is DISMISSED in part and DENIED in part. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480817/ | ORDER
Alberto Rodriguez pled guilty to conspiring to distribute marijuana, see 21 U.S.C. §§ 846, 841(a)(1). He was sentenced to a term of 37 months’ imprisonment. He argues on appeal that the sentence is unreasonable because the district court failed to respond to his argument that he should have only been sentenced to serve 8 days followed by a 4-year term of supervised release.
For more than two years, Rodriguez and three codefendants ran a marijuana-distribution scheme. Rodriguez’s task was to wire money to a wholesaler in Texas; his codefendants would then drive to Texas from Wisconsin to retrieve the drugs. Rodriguez received a share of the product, which he sold out of his apartment. After being arrested, he told the government what he knew about the operation, which earned him a reprieve from the statutory minimum sentence of 5 years’ imprisonment. See 18 U.S.C. § 3553(f); 21 U.S.C. § 841(b)(1)(B); U.S.S.G. § 5C1.2(a). With the mandatory minimum out of the way, his advisory guideline range was 37 to 46 months.
At sentencing, defense counsel painted a portrait of a determined young man who, since succumbing briefly to the temptation of the criminal underworld, pulled himself together and was making significant strides toward a respectable life. Highlighting Rodriguez’s compliance with the conditions of pretrial release, counsel noted that his client cooperated with the government after being arrested. He had become “a valued employee” at a local carwash and was planning to earn a busi*323ness degree and open up a coffee shop. And should the lure of illegal drugs cause Rodriguez to stumble on his way, he would have to contend with his sister, an ex-Marine who had moved into his spare bedroom to “keep[ ] an eye on him.” Sending Rodriguez off to prison, counsel argued, would merely derail his progress and jeopardize his potential.
The district court rejected Rodriguez’s plea for what would be rather extreme leniency and sentenced him to 37 months. The judge noted Rodriguez’s minimal criminal history by observing that he had “not engaged in a life of crime.” Yet the judge was troubled by the fact that Rodriguez had been “intimately involved” in a drug-trafficking conspiracy that “endangered people in the community.” Balancing these countervailing considerations, the judge settled on a sentence at the low end of the guideline range.
Citing United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005), Rodriguez argues that the district court did not respond to his principal argument at sentencing. How much a judge needs to say, however, depends on the circumstances of the case. United States v. Miranda, 505 F.3d 785, 796 (7th Cir.2007). So long as the record shows that the court heard and considered the argument, “it matters little” that its response is brief, United States v. Williams, 616 F.3d 685, 694 (7th Cir.2010), or merely implicit, United States v. Poetz, 582 F.3d 835, 839 (7th Cir.2009). And then there are some “stock arguments” that the district court need not— indeed ought not — respond to at all. United States v. Gary, 613 F.3d 706, 709 (7th Cir.2010).
We think that the district court here said more than enough in sentencing Rodriguez. In essence Rodriguez argued that, because he had no criminal background, had accepted responsibility for his behavior, and had accumulated some accomplishments since being arrested, he should have been sentenced to a term of supervised release rather than a prison term. During the sentencing colloquy the district court recognized that Rodriguez’s sparse criminal history “certainly suggests [he] ha[s] not engaged in a life of crime.” And then the court elaborated on this point in its written statement of reasons: “The defendant has a minimal prior record and is remorseful. He has done well on bond and has maintained employment.” Thus the record shows that the court heard and considered Rodriguez’s primary argument in mitigation. See United States v. Pape, 601 F.3d 743, 747 (7th Cir.2010) (evaluating both oral pronouncement and written statement to determine whether sentencing explanation was sufficient). But the court was not obligated to cease its inquiry there; instead it properly focused its attention on the other statutory sentencing factors, observing that Rodriguez was “intimately involved” in a crime that “put[ ] a lot of people at risk.” See 18 U.S.C. § 3553(a)(1), (a)(2)(A), (a)(2)(C). Because the court acknowledged Rodriguez’s primary argument in mitigation and then gave meaningful consideration to the statutory sentencing factors, the sentence it imposed, one at the bottom of an accurate guideline range, was reasonable.
Even if the district court had passed over Rodriguez’s argument in silence, however, the sentence would still not be unreasonable. A sentencing court need not address stock arguments that do not meaningfully distinguish the defendant. United States v. Hall, 608 F.3d 340, 347 (7th Cir.2010). And Rodriguez’s minimal criminal history, see United States v. Young, 590 F.3d 467, 474 (7th Cir.2009), the degree to which he accepted responsibility, see United States v. Tahzib, 513 *324F.3d 692, 695 (7th Cir.2008), and the educational and vocational progress he achieved following his arrest, see United States v. Paige, 611 F.3d 397, 398 (7th Cir.2010), all fall squarely within that category of sentencing arguments that a court may reject without discussion.
For these reasons, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480893/ | PER CURIAM.
Chinese citizen Fen Hao Chen petitions for review of an order of the Board of Immigration Appeals (BIA) denying his motion to reopen removal proceedings. After careful review, we conclude that the BIA acted within its discretion. See Li Yun Lin v. Mukasey, 526 F.3d 1164, 1165-66 (8th Cir.2008) (per curiam) (standard of review). Accordingly, we deny the petition for review. | 01-04-2023 | 11-05-2022 |
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Case Information: 85306
Short Caption:IN RE: ESTATE OF TIPSWORDCourt:Supreme Court
Lower Court Case(s):Clark Co. - Eighth Judicial District - P103072Classification:Civil Appeal - General - Proper Person
Disqualifications:Case Status:Disposition Filed
Replacement:Panel Assigned:
Panel
To SP/Judge:SP Status:
Oral Argument:Oral Argument Location:
Submission Date:How Submitted:
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Party Information
RoleParty NameRepresented By
AppellantAnthony DiBlasio
In Proper Person
RespondentDavid M. PadillaJeremy D. Holmes
(Hayes Wakayama)
Liane K. Wakayama
(Hayes Wakayama)
RespondentDonna Jean BurnetteJeremy D. Holmes
(Hayes Wakayama)
Liane K. Wakayama
(Hayes Wakayama)
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Due Items
Due DateStatusDue ItemDue From
11/28/2022OpenRemittitur
Docket Entries
DateTypeDescriptionPending?Document
09/12/2022Filing FeeFiling Fee due for Appeal. (SC)
09/12/2022Notice of Appeal DocumentsFiled Notice of Appeal/Proper Person. Appeal docketed in the Supreme Court this day. (SC)22-28398
09/12/2022Notice/OutgoingIssued Notice to Pay Supreme Court Filing Fee/Proper Person. No action will be taken on this matter until filing fee is paid. Due Date: 14 days. (SC)22-28400
09/13/2022Notice/IncomingFiled Respondent's Notice of Withdrawal of Counsel of Record. (SC)22-28641
09/19/2022Notice/IncomingFiled Proper Person Notice Regarding Heading of this Case. (SC)22-29402
09/21/2022MotionFiled Proper Person Motion of Withdrawal of Appeal. (SC)22-29674
11/03/2022Order/DispositionalFiled Order Dismissing Appeal. To date, appellant has not paid the filing fee. Accordingly, "this appeal is dismissed". fn1 [ In light of this order, no action will be taken on the notices filed on September 13 and 19, 2022, or the motion filed on September 21, 2022.] (SC)22-34533
Combined Case View | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480818/ | MEMORANDUM **
Josseline Hernandez-Flores, a native and citizen of El Salvador, petitions for review of the decision of the Board of Immigration Appeals dismissing her appeal from the immigration judge’s denial of her application for asylum and withholding of removal, and relief under the Convention Against Torture.
We reject Hernandez-Flores’s claim that she is eligible for asylum and withholding of removal based on her anti-gang political opinion or her membership in a particular social group of young El Salvadoreans who refuse to join gangs. See Barrios v. Holder, 581 F.3d 849, 854-56 (9th Cir.2009); Santos-Lemus v. Mukasey, 542 F.3d 738, 745-47 (9th Cir.2008). Hernandez-Flores alleged that she has family members who were threatened and killed by the gangs due to their resistance to gang activity, but there was no evidence that the gang was attempting to recruit petitioner because of her family affiliation. Hernandez-Flores’s claim that she is eligible for asylum and withholding of removal based on her membership in a particular social group consisting of her family also fails. See Molina-Estrada v. INS, 293 F.3d 1089, 1095 (9th Cir.2002) (no compel*349ling evidence the applicant was persecuted on account of his family membership). Because Hernandez-Flores failed to demonstrate that she was persecuted, or fears persecution on account of a protected ground, we deny the petition for review as to her asylum and withholding of removal claims. See Barrios, 581 F.3d at 856.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480819/ | MEMORANDUM **
Jose Alfonso Escobedo Soto, his wife Jovita Escobedo, and their daughter Anel Yesenia Escobedo Moreno, natives and citizens of Mexico, petition for review of the decision of the Board of Immigration Appeals denying their fifth motion to reopen the underlying denial of their application for cancellation of removal, and seeking to renew their applications for asylum, withholding of removal, and relief under the Convention Against Torture based on changed country conditions in Mexico.
We lack jurisdiction to review the BIA’s discretionary determination that petitioners failed to establish exceptional and extremely unusual hardship to a qualifying relative. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005).
Petitioners’ renewed claim for asylum, withholding of removal, and protection under CAT, based on changed country conditions, failed to present evidence of changed country conditions in Mexico that are material to petitioners and their circumstances. See 8 C.F.R. § 1003.2(c)(3)(h); Toufighi v. Mukasey, 538 F.3d 988, 996-97 (9th Cir.2008) (requiring movant to produce previously unavailable evidence of changed country conditions that are material to petitioners and their circumstances). In addition, we reject petitioners’ claim— that they are entitled to asylum and withholding of relief because they are Mexican aliens who would be targeted upon re*350turning to Mexico from the United States — because petitioners have not alleged a cognizable social group and, thus, have not stated a claim for asylum or withholding of relief. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th Cir.2010) (rejecting as particular social group “returning Mexicans from the United States”). Accordingly, the BIA did not abuse its discretion in denying petitioners’ motion to reopen.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480820/ | MEMORANDUM **
Jarvis Gilbert, a California state prisoner, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. After reviewing the briefs and the record, *419and considering the oral arguments of counsel, we affirm the judgment of the district court for the reasons given in Judge Henderson’s thorough opinion of May 22, 2009.
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/8480823/ | MEMORANDUM **
Karen Martoyan and his family, natives and citizens of Armenia, petition for review of the Board of Immigration Appeals’ order dismissing their appeal from an immigration judge’s decision denying their application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence, INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 88 (1992), and we dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the agency’s determination that petitioners failed to establish extraordinary circumstances excusing the untimely filed asylum application because it is based on disputed facts. See 8 U.S.C. § 1158(a)(8); cf. Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007) (per curiam).
Martoyan omitted additional incidents of harm, as well as the identity of his attackers from his asylum application statement. See Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004). He also testified inconsistently with documentary evidence regarding where he was hospitalized in 1996. See Pal v. INS, 204 F.3d 935, 938 (9th Cir.2000) (inconsistencies between testimony and documentary evidence support an adverse credibility finding). Because the agency reasonably found that Martoyan’s explanations for the discrepancies were unconvincing, substantial evidence supports the agency’s adverse credibility determination. See Wang v. INS, 352 F.3d 1250, 1256-57 (9th Cir.2003). Accordingly, in the absence of credible testimony, Martoyan’s withholding of removal claim fails. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
*467Martoyan’s CAT claim also fails because it is based on the same evidence the agency found not credible, and he does not point to any evidence in the record that would compel a finding it is more likely than not he would be tortured if he returned to Armenia. See id. at 1156-57.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480824/ | PER CURIAM:
After review and oral argument, the Court concludes the Plaintiff-Appellant has not shown reversible error in the district court’s order dated August 14, 2009 granting summary judgment to the Defendants-Appellees. Accordingly, we affirm the final judgment of the district court in favor of Defendants on Plaintiffs Complaint.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480825/ | PER CURIAM:
After review and oral argument, we AFFIRM the thorough and well reasoned decision of the District Court granting Summary Judgment to the defendants-ap-pellees in this matter. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480826/ | ON MOTION
ORDER
Upon consideration of David P. Ges-sert’s unopposed motion for a 14-day extension of time, until October 12, 2010, to file his reply brief,
It Is Ordered That:
The motion is granted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480830/ | ON MOTION
ORDER
HemCon, Inc. submits a motion for a stay, pending appeal, of the execution of the final judgment, including the execution of the damages award, entered by the United States District Court for the District of New Hampshire on September 23, 2010. HemCon also requests an immediate “administrative stay” pending disposition of its motion for a stay, pending appeal.
Upon consideration thereof,
It Is Ordered That:
(1) Marine Polymer Technologies, Inc. is directed to respond no later than October 13, 2010.
(2) HemCon’s request for an “administrative stay” is granted to the extent that execution of the final judgment and execution of the damages award is temporarily stayed, pending the court’s receipt of the response and the court’s consideration of the papers submitted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480831/ | ON MOTION
ORDER
John-Pierre Baney moves for reconsideration of the court’s September 10, 2010 order denying his motion for leave to proceed in forma pauperis and submits a Uniformed Services Employment and Reemployment Rights Act (USERRA) notification form indicating that his case before the Merit Systems Protection Board involved USERRA claims and thus he is exempt from paying the filing fee.
Pursuant to 38 U.S.C. § 4323(h), if a petitioner claims rights under USERRA, the filing fee is waived. In this case, Baney claimed rights under USERRA before the Board. Thus, Baney is exempt from paying the fee.
Accordingly,
It Is Ordered That:
(1) The motion for reconsideration is granted.' Baney is exempt from paying the filing fee.
(2) The briefs of the Board and the Department of Justice are due within 21 days of the date of filing of this order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480832/ | *688JUDGMENT
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/8480833/ | 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/8480835/ | 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/8480836/ | 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/8480837/ | *716SUMMARY ORDER
Plaintiff-appellant Michael L. Singer, II, 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. Singer, who suffers from several neurological disorders, was prescribed Zyprexa consistently between December 2000 and January 2002. He was treated with Risperdal for a year before Zyprexa, and with Orap immediately following Zyprexa; both are antipsy-chotic medications with risks of weight gain. In November 2004, Singer was diagnosed with diabetes. Singer asserts that Zyprexa caused his diabetes and that he 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 Pennsylvania law,1 Singer must establish that the inadequate warning “was both a cause-in-fact and the proximate cause” of his injuries. Pavlik v. Lane Ltd./Tobacco Exps. Int’l, 135 F.3d 876, 881 (3d Cir.1998) (applying Pennsylvania law). Moreover, Pennsylvania law recognizes the “learned intermediary” exception in failure-to-warn cases: “a prescription drug manufacturer may meet its duty to warn by providing an adequate warning to a ‘learned intermediary,’ as opposed to the general public or individual users.” Mazur v. Merck & Co., 964 F.2d 1348, 1355 (3d Cir.1992) (applying Pennsylvania law). As a result, summary judgment is warranted under the learned intermediary doctrine unless the plaintiff can demonstrate that “had defendant issued a proper warning to the learned intermediary, [the learned intermediary] would have altered his behavior and the injury would have been avoided.” Mazur v. Merck & Co., 742 F.Supp. 239, 262 (E.D.Pa.1990).
After de novo review, we hold that Singer has failed to present evidence that Zy-prexa was the cause-in-fact of his injury. Singer’s physician, Dr. Stayer, prescribed three different antipsychotic drugs in succession between 1999 and 2004. When “the complexities of the human body place questions as to the cause of pain or injury beyond the knowledge of the average layperson,” Pennsylvania requires expert testimony “that the injury in question did, with a reasonable degree of medical certainty, stem from” the act alleged. Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280, 1285 (1978). As the District Court noted, Singer’s causation expert “was unable to determine with any level of scientific probability whether Risperdal, Zyprexa, Orap or some other treatment variable led to claimant’s diabetes.” In re Zyprexa Prods. Liab. Litig., Nos. 04-MD-1596, 06-CV-1338, 2009 WL 1404978, at *14 (E.D.N.Y. May 19, 2009). Singer has therefore presented no evidence from which a jury could conclude that Zyprexa, *717rather than either of the other two drugs, caused his diabetes.
CONCLUSION
We have considered each of Singer’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 Pennsylvania's substantive law and statute of limitations rules govern this action, which was filed in and which arises from events occurring in Pennsylvania 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/8480840/ | SUMMARY ORDER
Sindra Kurdy, a native and citizen of Indonesia, seeks review of a December 7, 2009, order of the BIA affirming the June 9, 2008, decision of Immigration Judge (“IJ”) Sandy K. Horn, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Sindra Kurdy, No. A094 813 961 (BIA Dec. 7, 2009), aff'g No. A094 813 961 (Immig. Ct. N.Y. City, June 9, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
Under the circumstances of this case, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review factual findings, including those underlying the immigration court’s determination that an alien has failed to satisfy his burden of proof, under the substantial evidence standard. Chuilu Liu v. Holder, 575 F.3d 193, 196 (2d Cir.2009). We treat them as “ ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Id. (Quoting 8 U.S.C. § 1252(b)(4)(B)). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mulcasey, 529 F.3d 99, 110 (2d Cir.2008).
Kurdy has waived any challenge he might have raised to the agency’s denial of withholding of removal and CAT relief and to the agency’s finding that he did not establish a pattern or practice of persecution against Chinese Christians in Indonesia. Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). Additionally, Kurdy failed to exhaust any challenge to the IJ’s partial adverse credibility finding or to the agency’s denial of CAT relief. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 124 (2d Cir.2007).
*779Moreover, before this Court, Kurdy does not challenge either the IJ’s adverse credibility finding regarding his testimony that he could not relocate within Indonesia, or the IJ’s finding that evidence in the record of country conditions established that there are safe, predominately Christian locations in Indonesia. See Steevenez v. Gonzales, 476 F.3d 114, 118 (2d Cir.2007) (finding petitioner failed to exhaust any challenge to the IJ’s dispositive relocation determination because he failed to address it “even in passing reference”). Because Kurdy did not challenge the IJ’s disposi-tive finding that Kurdy could safely relocate within Indonesia, we deny his petition for review. See 8 C.F.R. §§ 208.13(b)(l)(i)(B), 208.13(b)(2)(ii); Steevenez, 476 F.3d at 117-18 (“An alien’s ability to relocate safely constitutes a ground, in and of itself, on which an IJ’s denial of withholding of removal may be based”); Singh v. BIA, 435 F.3d 216, 219 (2d Cir.2006).
Moreover, even assuming, as Kurdy argues, that the agency erred in its determination that Kurdy did not establish past persecution, remand would be futile because the agency reasonably concluded that internal relocation was possible. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.2006) (“The overarching test for deeming a remand futile” is not whether “overwhelming evidence” supports the IJ’s ultimate finding, but whether the reviewing court can “confidently predict” that the IJ would reach the same decision absent the errors that were made.). The IJ noted that, although Kurdy testified that there are no predominately Chinese Christian neighborhoods in Indonesia, his sister testified that their parents lived in a predominately Chinese Christian neighborhood and had not had any problems since 1998. The IJ also examined the country conditions evidence in the record and further determined that “while there are some negative incidents ... overall there are supportive facts that there are several safe locations in Indonesia that are predominately occupied by Christians.” See Santoso v. Holder, 580 F.3d 110, 112 (2d Cir.2009) (“we may take judicial notice of the fact that Indonesia is a nation state consisting of approximately 6000 inhabited islands and that, in many places, Roman Catholicism is predominant”). Thus, the agency reasonably concluded that Kurdy could relocate within Indonesia. See Matter of R-, 20 I. & N. Dec. 621, 625-26 (BIA 1992) (the requirement that an alien must be unable or unwilling to return to a particular country because of a well-founded fear of persecution requires an alien to show that the threat of persecution exists for him country-wide).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480842/ | OPINION
PER CURIAM.
Tormu E. Prall has filed a petition for a writ of mandamus seeking to compel the United States District Court for the District of New Jersey to act promptly on his pending pro se civil rights complaint, which is docketed in the District Court as civil action number 10-cv-01228. We will deny the mandamus petition.
On March 8, 2010, Prall, an inmate in the custody of the State of New Jersey, filed a complaint under 42 U.S.C. § 1983 alleging, inter alia, that he was attacked in his cell, denied medical treatment, falsely charged with disciplinary infractions, and denied sanitary living conditions. Prall moved for leave to proceed in forma pau-peris (“IFP”) and submitted an “emergency letter motion” seeking a preliminary injunction on the ground that he is in “imminent danger of physical harm.” On July 1, 2010, Prall filed a first amended complaint raising additional allegations, and he moved the District Court to order prompt service of the first amended complaint.
The District Court docket reflects that Prall’s motion to compel service was submitted for consideration by a Magistrate Judge on August 2, 2010. The Magistrate Judge has yet to enter a decision on the motion, and the court has yet to screen *854Prall’s IFP complaint under 28 U.S.C. § 1915. Prall filed this mandamus proceeding to compel the District Court to “expeditiously screen and serve the complaint and summonses on the defendants, and allow him to proceed without [submitting] his preceding six-month account statement at this stage, because the failure to do so has continued to and worsened] imminent danger.” Petition at ¶ 3.
“Before a writ of mandamus may issue, a party must establish that (1) no other adequate means exist to attain the relief he desires, (2) the party’s right to issuance of the writ is clear and indisputable, and (3) the writ is appropriate under the circumstances.” Hollingsworth v. Perry, — U.S. -, 130 S.Ct. 705, 710, - L.Ed.2d -(2010) (per curiam) (quotation marks and punctuation omitted). Generally, the manner in which a district court handles the cases on its docket falls within its sound exercise of discretion, see In re Fine Paper Antitrust Litigation, 685 F.2d 810, 817 (3d Cir.1982), and this Court’s intervention via mandamus is appropriate only where an alleged delay in proceedings is tantamount to a failure to exercise jurisdiction. See Madden v. Myers, 102 F.3d 74, 79 (3d Cir.1996).
Prall submitted his first amended complaint on July 1, 2010, and the Magistrate Judge took the motion to compel service under advisement on August 2, 2010. While we acknowledge Prall’s concern that his suit not languish and his allegation that he is under “imminent danger” in prison, we cannot conclude on this record that the District Court has engaged in delay that rises to the level warranted for mandamus relief. See Madden, 102 F.3d at 79 (denying mandamus petition because “[although this delay [of three to four months] is of concern, it does not yet rise to the level of a denial of due process”). Accordingly, we will deny Prall’s mandamus petition. We are confident that the District Court will act without undue delay to screen Prall’s first amended complaint and rule on his application to proceed IFP under 28 U.S.C. § 1915. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480843/ | OPINION
PER CURIAM.
Charles Heza seeks review of a final order of removal entered by the Board of Immigration Appeals (“BIA”). We will deny Heza’s petition for review.
Heza is a native of Kenya and citizen of Rwanda. In 1999, he and his sister entered the United States on F-l student visas to attend college in Pennsylvania as part of a program that afforded full schol*860arships to several Rwandan students in exchange for a promise that they would return to Rwanda upon completing their studies.1 After graduating in 2001, Heza chose to remain in the United States and did not attend a special graduation ceremony in Rwanda for the returning students — an action that met with an expression of displeasure at the ceremony from the President of Rwanda. Heza conceded in proceedings before an Immigration Judge (“IJ”) that he is removable for overstaying his visa, and he pursued applications for asylum and withholding of removal. (The IJ noted that Heza did not seek Convention Against Torture relief or voluntary departure.)
The IJ rejected Heza’s asylum application because he filed beyond the one-year deadline. The IJ found that, while Heza was on notice in May 2001 that the President of Rwanda was displeased with his failure to return for the graduation ceremony, he did not apply for asylum until July 2003. The IJ found no changed or extraordinary circumstances to excuse the untimely filing. The IJ also denied withholding of removal, concluding that Heza had failed to show a clear probability that it is more likely than not that he will be persecuted in Rwanda on a protected ground, including an imputed “anti-government” political opinion. The IJ added that Heza is a native of Kenya, and that his parents currently reside in that country unharmed. Further, although Heza’s father lost his job as a Rwandan government official about ten months after his children failed to attend the graduation ceremony, the IJ found no evidence that Rwandan officials targeted Heza’s father, or that any animus toward his father would be imputed to Heza.
The BIA adopted and affirmed the IJ’s decision. It rejected Heza’s argument that changed circumstances could excuse the untimely asylum application. The BIA agreed that Heza was on notice of his claim in May 2001, and it added that Heza clearly was on notice by March 2002, when his father was warned about the children’s failure to return and told that their passports would not be renewed. The BIA also agreed that withholding of removal is unwarranted. It observed that Heza and his sister had given contradictory reasons for their father’s loss of his government job, one of which (that their father had improperly represented the Rwandan government without permission) had nothing to do with their failure to return. In addition, the BIA found that “any actions that might be directed against [Heza and his sister] were because of their failure to fulfill their obligations after having been provided educational opportunities in the United States, not because of any of the five statutory bases.” A.R. at 5. Further, even assuming that an anti-government political opinion might be imputed to Heza for failing to return, the BIA found that he did not have an objective, well-founded fear of persecution on that basis. Heza had established only that he might be subjected to an indoctrination program upon return, which Heza failed to prove would amount to persecution. The BIA added that there was no showing that Heza’s father had suffered persecution in the past, or that the Rwandan government has a continuing interest in Heza or his father.
After the BIA reissued its decision at Heza’s request, Heza timely filed a petition for review. We have jurisdiction under 8 U.S.C. § 1252(a)(1). “[W]hen the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” *861Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). “The [agency]’s determination will not be disturbed unless any reasonable adjudicator would be compelled to conclude to the contrary.” Yu v. Att’y Gen., 513 F.3d 346, 348 (3d Cir.2008) (quotation marks omitted).
As a threshold matter, to the extent that Heza raises a challenge in this Court to the finding that his asylum application was untimely filed, we lack jurisdiction to review that determination. See Issiaka v. Att’y Gen., 569 F.3d 135, 137 (3d Cir.2009). Moreover, because Heza has not sought Convention Against Torture relief, our review is properly limited to the agency’s denial of withholding of removal.
“The threshold for establishing eligibility for withholding of removal is higher than that for establishing entitlement to asylum and requires the alien to demonstrate a ‘clear probability’ that, upon removal to the country of origin, his or her ‘life or freedom would be threatened on account of one of the statutorily enumerated factors.’ ” Obale v. Att’y Gen., 453 F.3d 151, 161 (3d Cir.2006) (quoting Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998)). The clear probability standard requires a showing that it is more likely than not that the petitioner will suffer persecution. Miah v. Ashcroft, 346 F.3d 434, 439 (3d Cir.2003). Persecution includes “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom,” but it “does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993).
The record supports the finding that Heza has not shown a clear probability that he faces persecution in Rwanda on account of his race, religion, nationality, membership in a particular social group, or political opinion. Indeed, the only arguable grounds for relief that Heza has put forth are based upon (i) an imputed anti-government political opinion by virtue of his failure to return to Rwanda, and (ii) actions taken against his father after Heza failed to return. Heza has not shown, however, that the record compels the conclusion that he is entitled to relief on these grounds. As the BIA found, while Heza might be required to participate in an indoctrination program, known as “Ingan-do,” Heza failed to establish that Ingando participation will be mandatory, or, moreover, that participation in the Ingando program would amount to persecution. Further, the actions taken against Heza’s father (primarily, the loss of his government job ten months after Heza failed to return, for reasons that might have had nothing to do with Heza), do not compel a finding that Heza’s removal must be withheld. As the IJ noted, Heza’s parents continued living in Rwanda unharmed after Heza failed to return for the graduation ceremony, and even after being terminated from his government job, Heza’s father was allowed to move freely within Rwanda prior to relocating to Kenya in 2003. In short, the record supports the conclusion that Heza did not show an objectively reasonable basis for his fear of future persecution in Rwanda.
We have considered Heza’s remaining arguments before this Court, but we find those arguments without merit and in need of no separate discussion, as Heza has not shown that the record compels a finding contrary to that reached by the agency. We note Heza’s suggestion that the IJ improperly attacked his character, and exhibited bias, by denying voluntary departure even though Heza had not sought that relief. Petitioner’s Br. at 29. We find no support for this contention. The IJ merely stated: “The Respondents did not seek voluntary departure. If they had, this Court would have denied voluntary departure as a matter of discretion.” A.R. at *862714. This brief statement, which is dictum and was not repeated by the BIA, does not support a showing of bias on the part of the IJ.
For the foregoing reasons, we will deny the petition for review.
. Heza’s sister was a respondent in the removal proceedings but is not a party to this petition for review. The parties have indicated that she currently resides in Canada. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480844/ | OPINION
PER CURIAM.
In October 2002, the Board of Immigration Appeals (“BIA”) affirmed the decision of an Immigration Judge (“IJ”) to deny Hong Fang’s application for asylum, withholding of removal, and relief, under the Convention Against Torture. In February 2006, Fang submitted a motion to the BIA to reopen the removal proceedings, which the BIA denied as untimely. We denied Fang’s subsequent petition for review. See Fang v. Attorney Gen. of the United States, 241 Fed.Appx. 903 (3d Cir.2007).
In January 2008, Fang returned to the BIA with another motion to reopen. She asked that removal proceedings be terminated, closed, or continued so that United States Citizenship and Immigration Ser*863vices could adjudicate her application to adjust her status to a lawful permanent resident based on her marriage to a United States citizen. The BIA denied Fang’s motion. The BIA concluded that Fang’s motion was time- and number-barred and also declined to reopen the matter sua sponte, holding that Fang had not shown an exceptional situation to merit reopening as a matter of discretion.
Fang presents a petition for review.1 In her short pro se brief, she argues generally that the BIA abused its discretion in denying her motion to reopen. She explains that the BIA cited the number and time limitations and states that the BIA erroneously concluded that she failed to demonstrate an exceptional situation that would warrant sua sponte reopening. Fang argues that she has shown that her situation is exceptional and warrants sua sponte reopening. The Government responds that we lack jurisdiction to review the BIA’s decision to decline to exercise its sua sponte authority to reopen. In the alternative, the Government asks us to dismiss as moot Fang’s claim that the BIA abused its discretion in denying Fang’s second motion to reopen.
We agree with the Government that the BIA’s decision to decline to reopen Fang’s proceedings sua sponte is a discretionary decision beyond our jurisdiction. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003) (“Because the BIA retains unfettered discretion to decline to sua sponte reopen or reconsider a deportation proceeding, this court is without jurisdiction to review a decision declining to exercise such discretion to reopen or reconsider the case.”)
To the extent that Fang presents an issue beyond a claim relating to the BIA’s discretionary decision, we also must dismiss the petition as moot because there is no longer a live controversy. “The existence of a case and controversy is a prerequisite to all federal actions.” Phila. Fed’n of Teachers v. Ridge, 150 F.3d 319, 322 (3d Cir.1998) (citation omitted). A live controversy is “a real and substantial controversy admitting of specific relief through a decree of conclusive character.” Int’l Bhd. of Boilermakers v. Kelly, 815 F.2d 912, 915 (3d Cir.1987). The central question in the mootness analysis is whether meaningful or effective relief remains available. See id. at 916. In this case, we cannot say that it does. Fang sought reopening to terminate, close, or continue the removal proceedings pending the adjudication of her application to adjust her status. As Fang previously notified us, her adjustment application was denied in October 2009. Even if we were to remand this matter to the BIA, the remand would give her no relief because her reason for reopening, namely for “termination, administrative closure or simply a continuance, for a period of time long enough for the USCIS to adjudicate the adjustment application” R. 15-16, no longer exists.
For these reasons, we will dismiss Fang’s petition for review.
. On Fang's motion, we held her case in abeyance pending a decision on her application for adjustment of status. The parties briefed the case after Fang notified us that her application had been denied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480846/ | OPINION
PER CURIAM.
Dawn Marie Ball appeals from the District Court’s order denying her motion for a preliminary injunction. We will affirm. See 3d Cir. L.A.R. 27.4 (2008); 3d Cir. I.O.P. 10.6.
*887I.
Ball, a Pennsylvania prisoner proceeding pro se, filed suit under 42 U.S.C. § 1983 against thirty-four correctional officers and other prison personnel. Ball alleges various instances in which she claims that defendants searched her cell, seized her property, confiscated unspecified legal material, and interfered in various ways with her incoming and outgoing legal and other mail. She also filed a motion for a preliminary injunction, in which she requests the immediate return of her property and an order requiring defendants to provide her access to the law library and preventing them from labeling her mail. Defendants filed a brief in opposition to the motion, together with an appendix presenting evidence that Ball failed to exhaust her claims and that they otherwise lack merit, and Ball filed a reply. By order entered February 17, 2010, the District Court denied Ball’s motion. Ball appeals.
II.
We have jurisdiction to review the denial of preliminary injunctive relief pursuant to 28 U.S.C. § 1292(a)(1).1 We do so for abuse of discretion, though we review underlying conclusions of law de novo. See Adams v. Freedom Forge Corp., 204 F.3d 475, 484 (3d Cir.2000). A preliminary injunction is an extraordinary remedy, and the party seeking it must show, at a minimum, a likelihood of success on the merits and that she faces irreparable harm in the absence of the injunction. See id.
The District Court denied Ball’s motion on the grounds that she failed to establish these elements. For the reasons explained in the District Court’s thorough and careful opinion, we agree. Ball argues primarily that defendants are interfering with her right to access the courts. As the District Court explained, however, Ball has not shown that defendants are interfering with her ability to assert any non-frivolous claim. See Christopher v. Harbury, 536 U.S. 403, 415, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002). Even if they were, she has a legal remedy in the form of a denial-of-access suit, which she is pursuing here (and elsewhere, in the action pending at M.D. Pa. Civ. No. 08-cv-00701). She also has not shown that defendants are irreparably injuring her ability to litigate this or any other suit. As the District Court noted, Ball devoted the majority of her reply to arguing that she can overcome defendants’ arguments regarding exhaustion but requires the materials they have confiscated from her in order to do so. The District Court concluded that it could resolve that issue if and when appropriate during discovery. We cannot say that it abused its discretion in doing so.
Accordingly, we will affirm the judgment of the District Court. Ball’s motion for the appointment of counsel in this Court is denied.
. The District Court’s February 17 order also denied a motion that Ball had filed for the appointment of counsel. Our jurisdiction does not extend to that ruling. See Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir.1984). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480847/ | OPINION
PER CURIAM.
Syed Hasan petitions for review of a decision of the Administrative Review Board (ARB). For the reasons below, we will summarily deny the petition for review.
The procedural history of this case and the details of petitioner’s claims are well known to the parties and need not be discussed at length. Briefly, in May 2003, Hasan filed a complaint under the Energy Reorganization Act (ERA) alleging that he had not been hired as an engineer by Intervenor Enercon based on his past whistleblowing activities. The Administrative Law Judge (ALJ) recommended granting summary judgment in favor of the respondent and denying the complaint. On May 18, 2005, the ARB accepted the recommendation and denied Hasan’s complaint. Hasan did not file a petition for review from the ARB’s May 2005 decision. Over four years later, on November 4, 2009, Hasan filed a motion for reconsideration. The ARB denied the motion on January 13, 2010, on the grounds that the motion was not filed within a reasonable time and because Hasan had given no reason to justify reconsideration. Hasan filed *889a timely petition for review. We ordered Hasan to show cause why the petition should not be summarily denied.
In his motion for reconsideration, Hasan argued that the ARB overlooked the period from February 21, 2003, until May 21, 2003.1 He appears to be arguing that based on Enercon’s recruiting advertisements after February 21st, there were available jobs for which he was not considered. However, the ALJ found that it was undisputed that Enercon did not hire anyone in the civil/structural engineering divisions between January 23, 2003, and May 21, 2003. Hasan described the ARB’s failure to consider this issue as a “legal blunder” and contended that he had informed the ARB in his brief in 2004 that Enercon used an informal hiring process. He is simply seeking to relitigate the merits of his claims which were rejected four years before his motion for reconsideration was filed.
We need not address the question of whether the ARB has the power under the ERA to reconsider its rulings. Even if the ARB does have the power, its refusal to reconsider its ruling four years later for the reasons argued by Hasan was not arbitrary, capricious, or an abuse of discretion. See 5 U.S.C. § 706(2)(A).
Summary action is appropriate if there is no substantial question presented in the petition. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by the ARB, we will summarily deny the petition for review. See Third Circuit I.O.P. 10.6. The order to show cause is discharged.
. Hasan had sent letters to Enercon on February 21st and March 19th which requested that Enercon not discriminate against him for being a whistleblower. He filed his complaint on May 21, 2003. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480848/ | OPINION
PER CURIAM.
Robert Crew petitions for review of a Board of Immigration Appeals (“BIA”) order dismissing his appeal of an Immigration Judge’s (“IJ”) decision, which preter-mitted his application for cancellation of removal. We will deny the petition for review.
Crew is a native and citizen of Jamaica who was admitted to the United States in 1990. The Department of Homeland Security issued a notice to appear- in 2008 charging that Crew was subject to removal because he had remained in the United States longer than permitted. Crew conceded his removability and applied for cancellation of removal for nonpermanent residents pursuant to 8 U.S.C. § 1229b(b). At his hearing before the IJ, Crew also conceded that he was not eligible for cancellation of removal because he did not have the requisite qualifying relative, but he stated that he had applied for relief in order to challenge the statute in federal court.
The IJ ruled that Crew is statutorily ineligible for cancellation of removal. The IJ explained that, in addition to establishing that he has been physically present in the United States for a continuous period of not less than ten years, has been a person of good moral character, and has not been convicted of certain offenses, Crew was required to show that his removal would result in exceptional and extremely unusual hardship to his spouse, parent, or child, who is a United States citizen or an alien lawfully admitted for permanent residence. See 8 U.S.C. § 1229b(b)(l). The IJ acknowledged that Crew has a daughter, but stated that she could not serve as a qualifying relative because she is too old. The IJ explained that, under 8 U.S.C. § 1101(b)(1), a “child” is defined as an unmarried person under 21 years of age. The IJ thus pretermitted Crew’s application for cancellation of removal as a matter of law and ordered his removal to Jamaica.
The BIA dismissed Crew’s appeal. Noting that Crew did not allege any clear error in the IJ’s factual findings, the BIA stated that the IJ correctly pretermitted Crew’s application for cancellation of removal due to the lack of a qualifying relative. The BIA agreed with the IJ that *891Crew’s daughter, who was 35 years old on the date of the hearing, was not a “child” for purposes of cancellation of removal. Crew had argued on appeal that the law should be changed to allow a child of any age to be considered a “child” for purposes of the hardship requirement, but the BIA noted that it could only interpret the laws as written by Congress. This petition for review followed.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review the BIA’s legal determinations de novo, subject to the principles of deference articulated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Kaplun v. Attorney General, 602 F.3d 260, 265 (3d Cir.2010).
Crew concedes in his brief that the existing case law supports the BIA’s decision that a “child” for purposes of the hardship requirement for cancellation of removal is a person under 21 years of age. See Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1145 (9th Cir.2002) (applying the definition of “child” under 8 U.S.C. § 1101(b)(1) to the hardship requirement set forth in 8 U.S.C. § 1229b(b)(l)(D)); Matter of Hugo Portillo-Gutierrez, 25 I. & N. Dec. 148 (BIA 2009) (applying § 1101(b)(1) to determine whether a stepchild was a qualifying relative for purposes of § 1229b(b)(l)(D)). Crew asserts that the law should be changed to include all children and contends that his daughter is capable of suffering hardship as result of her father’s removal. Such an argument, however, is properly made to legislators, not to this Court.1
Crew also argues that his right to procedural due process was violated because his application for cancellation of removal was pretermitted without allowing him to present his case and establish the hardship that would result from his removal.2 Crew, however, does not have a cognizable procedural due process claim because there is no liberty interest at stake in an application for cancellation of removal, a discretionary form of relief. See United States v. Torres, 383 F.3d 92, 104-05 (3d Cir.2004) (stating aliens do not have a due process interest in being considered for discretionary relief); Pinho v. I.N.S., 249 F.3d 183, 189 (3d Cir.2001) (holding change in eligibility criteria for suspension of deportation, a discretionary form of relief, did not implicate due process rights).
Accordingly, we will deny the petition for review.
. The Government interprets Crew’s argument as asserting a violation of his right to substantive due process. We do not read Crew's brief as advancing such an argument.
. Crew does not identify in his brief the hardship that would result from his removal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480916/ | 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/8480850/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Terrence Cross appeals the district court’s margin order denying his motion for lack of personal jurisdiction under Fed.R.Civ.P. 60(b). We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order. United States v. Cross, No. 2:03-cr-00010-RBS-1 (E.D.Va. Mar. 11, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480851/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Winfred Witherspoon 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. Witherspoon v. Booth, No. 1:09-cv-01593-JFM, 2010 WL 1881761 (D.Md. May 6, 2010). We also grant Appellees’ motion to waive personal service 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/8480918/ | 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/8481647/ | Allen, P.
Before our statute, Code, ch. 119, § 1, p. 510, the law was well settled that the vendor of real estate, who had parted with the legal title, had a lien on the property for the purchase money, whilst it remained in the hands of the vendee, or volunteers claiming under him, or purchasers with notice. This right of the vendor to resort to the estate, constituted an implied equitable lien, the creature of a court of equity founded on the supposed intent of the parties, from which an implied contract was inferred. B ut the rule was not unbending. The circumstances might show there was no such intent, and therefore no such implied contract could be raised. But what circumstances should have such effect, created the difficulty in the practical enforcement of the rule. A receipt for the purchase money endorsed on the conveyance, or taking a bond, note, bill of exchange or check or other instrument involving the mere personal liability *305of the vendee, did not discharge the lien. But where other security was taken, it was considered that as the party had carved out his own security, it was a substitution for the lien implied by law. The question, however, to what extent the taking a distinct security shall be regarded as a waiver, has been much controverted. So much so, that Lord Eldon seemed to consider that it could not be known in any case, without, the judgment of a court, whether, under the circumstances of each case, the taking such security amounted to declaration plain or manifest intention of a purpose to rely not any longer upon the estate, but upon the personal credit of the individual. Owing to this uncertainty, and to the perplexing litigation growing out of the claim of the vendor to enforce this equitable claim for purchase money against purchasers of the legal title for value, the revisors recommended that the vendor’s equitable lien be abolished; and the Code, eh. 119, § 1, p. 510, provides, that if any person hereafter convey any real estate, and the purchase money or any part thereof remain unpaid at the time of such conveyance, he shall not thereby have a lien for such unpaid purchase money, unless such lien is expressty reserved on the face of the conveyance. The statute abolishes the lien where the vendor has conveyed the legal title, and has not reserved it on the face of the deed. It does not apply to the case where the title has been retained by the vendor, for the obvious reason that in such case the principles of our statutes requiring mortgages or deeds of trust to be recorded, was not infringed upon, and because purchasers for value of the legal title would not be endangered by parol proof of notice. Holding back the deed, or what is the same thing, depositing it as an escrow, until payment of the purchase money was made, was from the first regarded as evidence of an intention to resort to the land if necessary. And it was from deci*306sions of cases of this character that the doctrine as subsequently developed took its origin. The first case in which the principle was distinctly enounced, was the case of Chapman v. Tanner, 1 Vern. R. 267; where the chancellor said, “ that there is a natural equity that the land should stand charged with so much of the purchase money as was not paid; and that without any special agreement for that purpose.” Lord Eldon, in Mackreth v. Symmons, 15 Ves. R. 330, 343, says this case was imperfectly reported ; and in Fawell v. Heelis, Amb. R. 724, Lord Apsley said, “ that it appeared by the register’s book, that the vendor retained the title deeds till he was paid. And the court said that a natural equity arose from his having the title deeds in his custody.” And in the same case it is said that Pollexfen v. Moore, 3 Atk. 272, is very inaccurately reported, “ as by reason that the purchase money was not paid, he kept the title deeds.”
Among the circumstances to repel the presumption of an intention to resort to the estate, is the making of a conveyance of the legal title : a circumstance always sufficient to repel the presumption as against a bona, fide purchaser from the vendee having the legal title. But a purchaser or incumbrancer of a mere equitable title must take the place of the person from whom he purchases. The vendor may resort to the estate whether a purchaser of the mere equitable estate from his vendee, purchased with or without notice. For want of notice, or the payment of a valuable consideration, cannot place him in a more advantageous position than his vendor. As between the vendor and vendee, the latter occupies the position of a tenant at sufferance to the former. The vendor may assert his legal title and recover possession of the premises by ejectment, and so disaffirm the executory agreement to sell; or if he elects to go into chancery, the proceeding is more correctly a bill for the specific *307execution of the contract by requiring the vendee to complete his purchase by paying the price, or otherwise have the subject sold at his risk, than a bill to subject the property to a mere equitable lien.
That a vendor retaining the legal title-occupies a position different from and higher than one who has parted with the legal title and relies on the mere implied equitable lien, is not only clear from the considerations aforesaid, but is shown by the authorities. Notwithstanding the doubts of Lord Eldon, it may now be considered as well established that where the vendor who has conveyed, takes a personal collateral security, binding others as well as the vendee, as a bond or note with security, the lien on the land does not exist. But in the case of Hatcher's adm'x v. Hatcher's ex'ors, 1 Rand. 53, the purchaser gave bond with security for the purchase money, but received no conveyance ; and it was decided that the right of the vendor to resort to the land was not lost by having taken personal security. In that case, a suit at the instance of the security to subject the land for his indemnity, was sustained, before he had been compelled to pay himself. And upon the same principle it was held in Lewis v. Caperton’s ex'or, 8 Gratt. 148, that the vendor retaining the legal title may resort to the land as against creditors and incumbrancers of the vendee, although the vendee had subsequently executed a deed by which he conveyed other property to secure the purchase money.
The distinction between the implied lien where the legal title is parted with, and the right of the vendor who has retained the title to enforce a specific execution, is clearly drawn in the cases of Brush v. Kinsly and Adams v. Stillwell, 14 Ohio R. 20. The judge says, “ The lien of the vendor results from the fact that equity holds the vendee clothed with the legal title, a trustee of the vendor for the payment of the *308purchase money. Before the legal title passes from the vendor on a contract for the sale of land, there is no such lien. The vendor’s remedy in such case is on the contract either to enforce a specific performance of the contract, or in an action at law. The vendee cannot compel a relinquishment of the legal title until he clothes himself with equity by the payment of the purchase money.”
In Clark v. Hall, 7 Paige’s R. 382, it was held, that where there is an unexecuted contract for sale, the vendor may file a bill to have specific execution, and then have the land sold for his debt. To the same effect were the cases in this court, of Hatcher v. Hatcher and Lewis v. Caperton, ubi supra, and Knisely v. Williams, 3 Gratt. 265; Hanna v. Wilson, 3 Gratt. 243; Hopkins v. Cockerell, 2 Gratt. 88; Beirne’s ex’ors v. Campbell, 4 Gratt. 125; Stuart’s ex’ors v. Abbott, 9 Gratt. 255.
In Hanna v. Wilson it was held, that although an action on the promissory note given for the purchase money might have been barred at law, yet as the vendor retaining the title could sue in ejectment at law, or file a bill for specific execution, and subject the land in default of payment, his right in equity was not affected by any lapse of time short of the period sufficient to raise the presumption of payment, whatever might be the operation of the statute of limitations in an action at law instituted upon the promissory note. A similar' proposition was affirmed in Hopkins v. Cockerell. The cases of Lewis v. Caperton's ex’ors, Stuart’s ex’ors v. Abbott and Beirne’s ex’ors v. Campbell, before referred to, show that the intervention of a purchaser without notice, or a bona fide incumbrancer, does not obstruct-the right of the vendor to charge the land. The case of Beirne and Campbell carried the principle so far as to hold that though a purchaser has obtained the legal title, and had no notice that there was purchase money due to a previous *309vendor, yet if his vendor had not the legal title when he purchased, the land is liable for the purchase money due to the previous vendor.
The cases of Hanna v. Wilson and Knisely v. Williams also determine that in such case the assignee for value of a note given for the purchase money of land, may maintain a suit against his assignor, the vendor and the vendee for a specific execution of the contract, in a case proper for such relief, and subject the land to the satisfaction of his claim, agreeing in this respect with the almost uniform current of decisions in this country where the vendor has not parted with the title; although there is more conflict of decision whether the vendor’s implied lien where he has parted with the legal title accompat ies the assignment of the vendee’s note or bond for le purchase money. See note to Mackreth v. Symmons, 1 White & Tudor’s Lead. Cas. in Equity 245, where the cases are collected.
An application of these principles to the facts of the case under consideration, leaves no doubt in my mind of the right of the appellant to resort to the land in controversy for satisfaction. The contract of sale was executory; the appellant bound himself to make a deed to the appellee E. C. Mauck when the first payment was made. Before the bonds for the purchase money fell due, an arrangement was made, by which the vendee, with his vendor the appellant as security, executed their bond to a creditor of the vendor for the amount of the purchase money, for which amount the creditor gave the appellant credit, and the bonds executed by the vendee were surrendered. The effect of the arrangement was the same as if the appellant had assigned his vendee’s bonds for the purchase money in discharge of a debt, continuing responsible as assignor; or as if he had given to his creditor, in discharge of his own debt, an order on his *310vendee for the amount of the purchase money, and which the vendee had accepted.
These arrangements did not change the character of the debt; it still consisted of the purchase money due for the land. Whether it should be paid to the vendor directly, or to a third person for his relief, and the discharge of his debt, did not change the nature of the consideration. The vendee becoming embarrassed, executed a deed of trust upon this, with other property, to secure some of his creditors; and failing to pay the substituted bond executed for the purchase money, his security the appellant was compelled to pay it. The arrangement, to the extent of the failure to pay, fell through. The purchase money was not paid; the vendor did not obtain relief from his debt. He was compelled to pay it; nominally as the security of the vendee, in reality because it was originally his own debt which his vendee had bound himself to pay out of the purchase money due to him. Whatever might be the position he occupied at law, in equity which regards substance and not form, he stood as the unpaid vendor retaining the legal title. If the case stood alone between him and his vendee, could the latter compel him to relinquish the legal title until he had clothed himself with equity by the payment of the purchase money? Would he be heard to say that by shuffling the securities the purchase money was satisfied, though he had never paid and his vendor had never received a cent ? Would he not be told, in the language of the president of this court in Watts v. Kinney, 3 Leigh 272, 295, “That a court of equity looks to substance, not to form, that it looks to the debt (here the purchase money) which is to be paid, not to the hand which may happen to hold it; that the fund (here the land) charged with its payment, shall be so applied, whosoever may be the person entitled; *311and that it considers a debt as never discharged, until it is discharged by payment to the proper person, and by the proper person.” So this court held in Knisely v. Williams, 3 Gratt. 265; a case somewhat similar in its circumstances to the present. There the vendor of land took a bond for the purchase money and retained the title to the land. He afterwards agreed with the vendee to receive an order on a third person, payable at a distant day, for the amount of the bond. The order xvas given and the bond surrendered; but when the order was presented, the drawee refused to accept. It was held that the surrender of the bond and taking the order did not discharge the land, and that the vendor, upon the refusal to accept the order, could proceed forthwith, the purchase money being due at the date of the order, to enforce the specific execution of the contract, obtain a decree for the payment of the purchase money, and to subject the land to sale for the satisfaction thereof. Such would, as it seems to me, be the condition of these parties, if there had been no incumbrancers. As to them, the authorities show they must abide by the condition of their debtor. No fraud or misrepresentation is imputed to the vendor. They should have looked to the registry to ascertain whether their debtor had a legal title. The appellant has been guilty of no default; and their negligence can give them no equity against him.
I think the decree dismissing the bill is erroneous, and should be reversed with costs, and the cause remanded with instructions to enter a decree in conformity with the precedent in Knisely v. Williams, to execute the contract by requiring the appellant to execute a deed with general warranty to the appellee R. C. Mauck for the land contracted to be sold to him by the appellant, and acknowledge the same in order to be recorded, and file the same with the papers of the cause; and upon the same being so executed, ac*312knowledged and filed, unless the said appellee, or some one for him, shall within thirty days pay the debt, in-ten ft and costs aforesaid, together with the costs of thii jsuit, that then the commissioner of said court sell the and upon the usual credits.
T1 3 other judges concurred in the opinion of Alls ¶, P.
was as follows :
The 'ourt is of opinion, for reasons in writing filed with the record, that the decree of the Circuit court dismissing the bill of the appellant with costs, is erroneous. It is therefore adjudged and ordered, that the same be reversed and annulled, and that the appellees pay to the appellant his costs here expended.
And it is further decreed and ordered, that the cause be remanded to said Circuit court, with instructions to enter a decree in favor of the appellant against the appellee Eobert C. Mauck for the balance of the purchase money unpaid, with interest thereon from the time the same became payable, and the costs of this suit; and furthermore to decree and order, that the appellant do make to said appellee E. C. Mauck a deed conveying his interest in the land described in the contract, dated the 20th of April 1850, filed as an exhibit in the cause, with covenants of general warranty, and acknowledge the same in order to be recorded, and file the same with the papers in the cause; and if the debt, interest and costs aforesaid be jsaid within thirty days after the deed shall have been so filed, that said appellee, on such payment, have leave to withdraw said deed, leaving an attested copy thereof: And unless said debt, interest and costs shall be paid by the appellee E. C. Mauck, or some one for him, to the appellant within thirty days after the filing of said deed, that a commissioner, to be appointed by *313said court, after giving bond according to law, shall, after duly advertising the time and place of sale, proceed to sell said land upon a credit of six, twelve and eighteen months, taking bond with security from the purchaser, and retaining a lien on the land for the security of the purchase money: And that he report his proceedings to court, in order to a final decree; which is ordered to be certified to said Circuit court of Eockingham county. °
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481648/ | Moncure, J.
delivered the opinion of the court;
The questions to be decided in this case arise upon the bills of exception, and will be considered and disposed of in their order.
1. The plaintiffs, to prove their right to freedom, offered to give in evidence to the jury the declarations of James Fulton, the testator of the defendants, made some fourteen or fifteen years before the trial, that Gracey and her children were then free; and also the declarations of said testator, made some twenty odd years before the trial, that Gracey and her children would be free at the age of twenty-eight years; to which evidence the defendants objected, “on the ground that parol declarations in a suit for freedom are insufficient to establish freedom.” But the court overruled the objection, and the defendants excepted.
Parol declarations are certainly insufficient, in this state, to confer freedom on a slave. But parol declarations of a defendant in a suit for freedom, that the plaintiff is free, are admissible evidence of the fact, according to the general rule that the admissions of a party to a suit are evidence against him. The declarations in such case do not confer freedom; do not *320change the status of the plaintiff; but merely tend to show what that status is, to wit, that he is a free person, however his freedom may have been acquired. He may have acquired it in a variety of ways, and otherwise than by will or deed: as for example, by being born of a free mother. He and his maternal ancestors may always have been free. In many cases he might be unable to produce any muniment of his freedom; either because such muniment never existed, or because it has beeu lost, or is not in his possession or power. And an admission of his freedom by the party detaining him as a slave, may be the best, if not the only evidence of the fact which can be produced. Such an admission is competent evidence in any suit for freedom; its weight being dependent on the circumstances of each case, and being a matter for the consideration of the jury.
2. After the plaintiffs had introduced the declarations of James Fulton, the testator of the defendants, in regard to the right of the plaintiffs to freedom as aforesaid, and also the deed of the 23d of March 1805, from Richards to Bolling and wife, the plaintiffs offered to give in evidence to the jury the register of Haney and the certificate of the County court of Rocking-ham to the correctness of said register, and also the affidavit of Christena Hottle: To which evidence the defendants objected as improper to go to the jury, “ because said papers were ex parte, and not legal evidence in this case of the right of Haney or Gracey to freedom.” But the court overruled the objection; and the defendants again excepted.
The plaintiffs based their claim to freedom on the ground that they inherited it from Haney, the mother of Gracey. Any legal evidence tending to prove that Haney was free at the time of the birth of Gracey, is relevant and admissible evidence in support of the *321plaintiffs’ claim. The evidence objected to, as mentioned in the said bill of exceptions, seems to be of that character.
The registry was made under the act passed January 25th, 1803, entitled “ an act more effectually to restrain the practice of negroes going at large2 Stat. at Large, new series, p. 417, ch. 21; which required ■every free negro to be registered in the court of the county in which he resided, by the clerk of the court of said county, in a book to be kept for that purpose; that the register should specify, among other things, in what court such negro was emancipated, or that he was born free ; that the court should certify such register to have been truly made; and that a copy thereof, signed by the clerk and attested by a justice, should be delivered to the said negro. This law, with some changes not material to be here set forth, has remained in force ever since its passage. 1 Rev. Code of 1819, p. 43S, § 67; Code of 1849, p. 466, § 6.
It is at least questionable whether a register, made and certified according to law, is not prima facie evidence of every fact therein stated, in any controversy involving the freedom of the negro registered, or of any other persons claiming freedom Under such negro. See 1 Greenl. Ev. § 483, 485, 491, 493. If it be so, then the register of Haney is prima facie evidence of the fact therein stated, that she was born free.
But it is unnecessary to go to that extent, in the decision of the question now under consideration. It is sufficient, for this purpose (as the reason assigned for the objection taken to the evidence concedes), that the register of Haney is evidence of her right to freedom at the time it was made. The fact that she was free at that time, is a very important link in the chain of evidence necessary to show that she was free at the time of the birth of Grracey. Evidence of her having acted and been generally reputed as a free person, is *322certainly admissible evidence of her freedom. It is the strongest possible evidence of that character, that in 1817, about the time her term of service under the deed aforesaid expired, she was duly registered as a ^ree Person> and the court certified that such register was truly made; and that her right to freedom accordingly, so far as the record shows, has never since been controverted. The ninth instruction asked for by the defendants and given by the court, that the said register is only •prima facie evidence that Nancy was entitled to freedom at that time, “liable to be rebutted by evidence that she was not free according to law, but that it is no evidence that she was entitled to freedom before that time, nor that any child she had before that time was entitled to freedom,” is an exposition of the law, of which the defendants at least have no cause to complain; and it is sufficient to show that their objection to the register as evidence was properly overruled. See Pegram v. Isabell, 2 Hen. & Munf. 193.
The register and certificate are therefore admissible evidence; and so also is the affidavit of Christena Hottle. It was part of the evidence on which the register was founded ; is referred to therein; and, with the said deed, was endorsed, filed and preserved by the clerk in his office. She was the person last entitled to the services of Nancy under the said deed, and held her when her term of service expired. Her only claim to Nancy was under the said deed, and under her husband Henry Hottle. And the only claim of the appellants’ testator James Fulton to Gracey, was under the same deed, and under the said Henry Hottle. She was as much entitled to Nancy absolutely, as he was entitled to Gracey absolutely. Her admission is as much evidence of the freedom of Nancy, as his is of the freedom of Gracey. Her affidavit is nothing more than her admission under oath of Nancy’s freedom. *323Her admission is evidence, not only against her, but against all persons claiming under her. The claim of the testator of the appellants must have been under her, if they had any claim at all to Nancy. The only persons, so far as the record shows, who appear to have had any interest in Nancy, supposing her to have been a slave, were Thomas Richards, the grantor in said deed, and the person entitled to her services under it. The admissions of these persons were competent evidence of her freedom in this suit. The deed itself is an admission of her freedom by Richards, and was admitted as evidence without objection. The affidavit, as before stated, is an admission of her freedom by the person last entitled to her services under said deed, and is, therefore, admissible evidence.
3. After all the evidence had been given, the defendants moved the court to exclude as evidence from the jury the declarations of James Fulton as to the right of Gracey to freedom, “on the ground that the plaintiffs had proved by the said deed and other evidence, that James Fulton had only a temporary interest in said Gracey and her children; and never having been the fee simple owner his declarations are not evidence for the purpose of proving a right to freedom.” But the court overruled the motion; and the defendants again excepted.
A plaintiff in á suit for freedom must make out his title against all the world. The only issue in the suit is, whether he be free or not; and if he be not free, he must fail in the suit, whether he be the slave of the defendant or of some other person. The defendant’s admission of the plaintiff’s freedom is always evidence of the fact against the'defendant, whether he ever had any interest in the plaintiff as a slave or not, and whatever such interest, if any, may have been. It is, however, only presumptive evidence, liable to be repelled by proof that the plaintiff is the slave either *324of the 'defendant or of some other person. And the judgment which may be recovered by the plaintiff upon such evidence, cannot affect the title of any other person than the defendant and those who claim under him. The motion to exclude the evidence was therefore properly overruled.
4. After all the evidence had been given and teu instructions had been asked for by the defendants, and given by the court to the jury, the defendants moved the court to instruct the jury that the said deed of the 23d of March 1805, from Richards to Bolling and wife, “is not evidence which tends to rebut the presumption of slavery resulting from the color and African descent of the plaintiffs and Nan, or to establish a pre-existing title to freedom.” But the court refused to give the said instruction; and the defendants again excepted.
In the case of a person visibly appearing to be a negro, the presumption is that he is a slave; but in the case of a person visibly appearing to be a white man or an Indian, the presumption is that he is free. Hudgins v. Rights, 1 Hen. & Munf. 134, and opinion of Roane, J. Id. 141. In this case, any legal evidence tending to show that the plaintiffs are free, tends to repel the presumption arising from their color, that they are slaves, and is therefore admissible. The deed of the 23d of March 1805 is of that character. It does not profess to be a deed of emancipation ; but is merely a conveyance by Richards to Bolling and wife of the services of Nan and her children for certain terms respectively ; at the expiration of which, it declares that she and they are to be discharged from all further service. It does not describe them as slaves, but as free persons, at least at the end of their respective terms of service. And as it was plainly not intended to be a deed of emancipation, it seems to imply that Nan had previously acquired her freedom by birth, or in some other legal mode. At all events, it is “ evidence which *325tends to rebut the presumption of slavery resulting from the color and African descent of the plaintiffs and Nan, or to establish a pre-existing title of freedom ;” and the court therefore properly refused to give the eleventh instruction asked for by the defendants.
5. After evidence had been introduced by the plaintiff's tending to prove Gracey’s right to freedom upon her arrival at the age of twenty-eight years; and after the introduction by them of the deed of the 23d of March 1805, the defendants, to sustain the issue on their part, and for the purpose of showing the ages of Gracey’s children, and which of them were born before she arrived at the age of twenty-eight years, offered to give in evidence to the jury an old book entitled •“Select Sermons by Mr. Andrew Gray,” in which book, and on 31st, 32d and 33d pages thereof, the date of the birth of Gracey’s children, and also of'other children of other negro women of said James Fulton, were written. It was proved that the book was said Fulton’s, and was kept by him in his house to the time of his death; and that the entries therein, of the birth of said negroes, was in his handwriting, and seemed to have been made many years ago. To which evidence the plaintiffs objected, and the court sustained the objection. Whereupon the defendants again excepted.
The evidence thus excluded was not material, and would not have affected the verdict; which was in favor of all the plaintiff's, though it was proved by other evidence that four of them, children of Gracey, were born before, and her other children after she attained the age of twenty-eight years, and that all of the said children were under, that age at the time of the trial. But it would have been inadmissible if it had been material. The principle upon which such entries are admitted is (in the language of Lord Eldon *326in Whitelocke v. Baker, 13 Ves. R. 511, 514), “that they are the natural effusions of a party, who must know the truth, and who speaks upon an occasion when his mind stands in an even position, without any temptation to exceed or fall short of the truth.” 1 Phil. Ev. 239; 2 Stark. Ev. 605. The very foundation on which such entries are admissible fails, where it is probable that parties who made them labored under any temptation to misrepresent the facts; when that is the case, such evidence is inadmissible. Id. If the entries excluded in this case be material to the defence, then clearly the party who made them labored under a temptation to misrepresent the facts, and therefore the said entries were inadmissible evidence, and were properly excluded.
6. The 6th and last exception taken by the defendants, was to the refusal of the court to set aside the verdict, on the ground that it was contrary to the law and evidence.
There is nothing in the case to show that Nan was ever a slave, except the fact of her color and African descent; and the presumption arising from that fact, seems to be repelled by the other facts proved in the case. The first information we have of her is, that in 1805, when the deed of the 23d of March of that year was executed, she resided in the town of Alexandria. And she and the deed were transferred from one to another in that town until 1808, when they were transferred to Christian Hottle, who purchased her for his brother, Henry Hottle of the county of Rockingham, where, it appears, she has ever since resided. She is not described as a slave in the said deed, nor in any assignment thereof, nor in the will of Henry Hottle, nor in the affidavit of Christena Hottle. The deed does not profess, and plainly was not intended, to be a deed of emancipation, but purports to be merely a conveyance of the temporary services of Nan and of *327any children she might have during her term of service, to which temporary services the grantor seems to have claimed title, but in what way or by what right, does not appear. The deed rather implies that she was free at the time of its execution, and states that she and her said children at the expii-ation of their respective terms of service were “ to be discharged from all further service” — words, rather inappropriate to the purpose of emancipation, but perfectly consistent with the idea that she was already free, but bound to serve for a limited period. She was given by the will of Henry Hottle to his wife Christena Hottle, “ to stay with her until the time she was bound to him should be expired.” Shortly after that time expired, to wit, in April 1817, Christena Hottle made affidavit that Nan had “served out the time for which she was sold to her deceased husband,” and was then free. And in the next month, May 1817, Nan was registered in the office of the County court of Rockingham as a person “ born free, but bound to serve a certain number of years; which she had duly served, as appeared by her papers filed in said office;” and the court certified the register to have been truly made, and ordered a copy to be fur-, nished her in the manner prescribed by law. It does not appear upon what information the fact was stated in the register that she was born free. It is not probable that it would have been so stated on information derived alone from Nancy, if indeed she had any knowledge on the subject. The fair presumption is, that it was stated upon information derived from some of the parties claiming under the deed — probably Christena Hottle, who seems to have furnished her with the deed and affidavit, and no doubt otherwise assisted her in obtaining the register. At all events, we find the fact thus solemnly and authentically stated in 1817j and she has enjoyed her freedom, without in*328terruption, ever since; living all the time in the same county, and probably in the same neighborhood with the testator of the defendants, until his death in 1855. The only other children of Nan, born during her term of service, who survived the age of twenty-eight years, besides Gracey, were discharged from service at that age, according to the provisions of the deed, and have ever since enjoyed their freedom without interruption. Gracey alone and her children have been detained in slavery by the defendants and their testator. He, on several occasions, admitted that they were free, or would be at a certain age. And after he determined to detain them as slaves, the only reason he assigned for doing so (as far as the record shows), was, “ that he had been paying taxes on Gracey, and meant to hold her.” He had no claim to them except under the said deed; and he certainly had no rightful claim under that, to Gracey after she attained the age of twenty-eight years, and her children thereafter born. They, at least, either belong to some other person than the defendants, or are free. No other person has ever claimed them; and it may reasonably be presumed that they are free. Upon the whole, we may well conclude that the jury were warranted by the evidence in finding the plaintiffs to be free, and therefore that the Circuit court did not err in refusing to set aside the verdict.
The court is of opinion that there is no error in the judgment, and that it be affirmed.
Judgment appirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480857/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donnie Keith Howell appeals the district court’s orders denying his motion for modification of sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006) and denying his motion for reconsideration. Howell argues that the district court erred by failing to reduce his sentence based upon U.S. Sentencing Guidelines Manual (“USSG”) App. C. Amend. 706 (2007), which lowered the offense level for sentences involving crack cocaine. Howell’s sentence was determined by the career offender guideline and was not based on a sentencing range lowered by the amendment. See United States v. Hood, 556 F.3d 226, 232 (4th Cir.2009). Accordingly, we affirm district court’s orders. 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/8480858/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Fred Freeman seeks to appeal the district court’s order affirming the recommendation of the magistrate judge and dismissing all but two defendants in Freeman’s 42 U.S.C. § 1983 (2006) 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 Freeman seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We deny Freeman’s motion to remand. 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/8480860/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Allen Smith, Jr., appeals the district court’s “Order Reducing Term of Imprisonment as a Result of Amended Guideline Range Pursuant to [U.S. Sentencing Guidelines Manual § ] 1B1.10 [ (2008) ].” We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Smith, No. 2:00-er-00007-FPS-JES-l (N.D.W.Va. Nov. 3, 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/8480862/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Everette Atkinson, a federal prisoner, appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing without prejudice Atkinson’s 28 U.S.C.A. § 2241 (West 2006 & Supp.2010) petition. We have reviewed the record and find no reversible error. Accordingly, although we grant leave to proceed in forma pauperis, we affirm for the reasons stated by the district court. Atkinson v. Drew, No. 9:09-cv-03219-TLW, 2010 WL 960030 (D.S.C. Mar. 11, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480919/ | 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/8481649/ | Moncure, J.
delivered the opinion of the court:
The court is of opinion, that the contract of the 16th of January 1852, between Nisewander and the appellant, though made when the former was under age, and when that fact was known to the appellant, was not a void contract, but only voidable, and subject to be affirmed or disaffirmed by the former, after his arrival at age. “ The tendency of the modern decisions (says Chancellor Kent) is in favor of the reasonableness and policy of a very liberal extension of the rule, that the acts and contracts of infants should be deemed voidable only, and subject to their election, when they become of age, either to affirm or disavow them.” 2 Kent Com. 235. The authorities on this subject are fully collected in the valuable notes of Hare & Wallace, appended to the case of Tucker, &c. v. Moreland, in 1 American Leading Cases, edition of 1857, p. 224-267. And from the numerous decisions which have been had in this country, the annotators deduce the following definite rule, as one that is subject to no exceptions. “ The only contract binding on an infant, is the implied contract for necessaries: the only act which he is under a legal incapacity to perform, is the appointment of an attorney; all other acts and contracts, executed or executory, are voidable or confirmable by him at his election.” Id. 244. It is not material that the title bond in this case is in a penal sum ; though it has been said that a bond of an infant with a penalty is void. Coke Lit. 172 a; recognized as being still the law by Bayly, J. in 3 Maule & Sel. 482. The penalty of the bond is a mere matter of form, the substance of the contract being the condition, on which may be maintained an action of covenant at law or a suit for specific performance in equity. See also 3 Rob. Pr. (new) 221-228.
The court is further of opinion, that the said contract was disaffirmed by the contract of the 8th of *338November 1853, between Nisewander and Wohlford, made after the former arrived at age. There is no evidence, nor even pretence, of any affirmance of the former contract by Nisewander after he arrived at age and before he entered into the latter, which was but eight days after his arrival at age. On the contrary, he persisted, during that period, in declaring that he would not confirm the former contract. Then, the question is, Did not the latter amount to a disaffirmance of the former? A voidable act of an infant may be avoided by different means, according to the nature of the act; but, without undertaking to enumerate them, it is sufficient for the purposes of this case to say, that such an act may certainly be avoided by him, after he becomes of age, by an act of the same nature and dignity. Thus a feoffment may be avoided by a feoffment; a deed of bargain and sale, by a deed of bargain and sale; a title bond, by a title bond, &c.; the two acts in these cases being of the same nature and dignity. It is not necessary, in order to produce that effect, that the latter act should expressly disaffirm the former. It is enough that the two acts are inconsistent with each other; in which case the former is disaffirmed by plain and necessary implication. The case of Frost v. Wolveston, 1 Strange’s R. 94, seems to have proceeded on this principle. There, an infant covenanted to levy a fine by a certain time to certain uses; and before he came of age he levied the fine, and by another deed, made at full age, he declared it to be to other uses : the court held that the last deed should be the one to lead the uses. So also did the cases of Jackson v. Carpenter, 11 John. R. 539; Jackson v. Burchin, 14 Id. 124; and Tucker v. Moreland, 10 Peters’ R. 58.
In these cases, deeds of bargain and sale were avoided by deeds of the same nature to other bargainees. In the last of them, Judge Story said the *339first two “are directly in point, and proceed upon principles which are in perfect coincidence with the common law, and are entirely satisfactory.” In these cases, the first grantee was not in actual possession when the second deed was executed, but the land was either vacant, or the grantor remained in possession. If there be an adverse possession, then, it is said, in those states where one out of possession cannot sell, there should be an entry by the grantor in order to avoid the first deed by another. 1 Am. Lead. Cas. 257, and the cases cited. But no entry is necessary in those states in which one out of possession of real estate can sell his interest therein. 1 Parsons on Cont. 273. That is the case in this state, under the Code, ch. 116, § 4, 5, p. 500; which provides, “ that all real estate shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in liveryand that “ any interest in or claim to real estate may be disposed of by deed or will.” Carrington v. Goddin, 13 Gratt. 587. But in this case, though the first vendee appears to have been in possession, when the second title bond was executed, such possession was not adverse to the vendor, but in subordination to the title which still remained in him, and which would have been conveyed by him independently of the statute, and without any actual entry. In any view of the case, therefore, the contract with Wohlford was a disaffirmance of the contract with the appellant.
The court is further of opinion, that the effect of such disaffirmance was to render the first mentioned contract void; to extinguish any interest in law or equity the appellant may have acquired under it; and to entitle Nisewander, or his vendee Wohlford in his name, to recover possession of the land in an action at law, and hold it free from any equity of the appellant. When a voidable contract of an infant is disai*340firmed by Mm, it is made void ah initio by relation, and the parties revert to the same situation as if the contract had not been made. 1 Am. Lead. Cas. 259; Boyden v. Boyden, &c. 9 Metc. R. 519, 521. If the contract was one of sale by the infant, he becomes reinvested with his title to the property, and may demand and recover it, not only of the vendee, but of any other person who may have it in possession. The right of an infant to avoid his contract is an absolute and paramount right, superior to all equities of other persons, and may therefore be exercised against purchasers from the vendee. 1 Am. Lead. Cas. 258; citing Myers, &c. v. Sanders' heirs, 7 Dana’s R. 506, 521, and Hill v. Anderson, 5 Smedes & Marsh. R. 216, 224. He who deals with an infant deals at his peril, and subject to this right of the infant to disaffirm and avoid the contract. This is the case, even though he deal in ignorance of the infancy, and on the fraudulent representation of the infant that he is of full age. Van Winckle v. Ketcham, 3 Caines’ Cas. 323; Conroe v. Birdsail, 1 John. Cas. 127; and other cases cited in 1 Am. Lead. Cas. 249. A fortiori, it is the case where, as here, the dealing is with full knowledge on the part of the adult of the infancy of the other contracting party. While the effect of avoiding the contract of sale by an infant is, on the one hand, to entitle him to demand and recover the property sold, so it is, on the other hand, to entitle the other contracting party to demand and recover the consideration received by the infant, or so much of it as may then remain in his hands in kind. Indeed, if the infant, after arriving at age, and before any act of disaffirmance by him, alien any part of the consideration, or exercise any unequivocal act of ownership over it, or retain it in his hands in kind for an unreasonable length of time, he may thereby affirm the contract and render it absolutely binding. Id. 255. But if he has, during infancy, wasted, sold *341or otherwise ceased to possess the consideration, and has none of it in his hands in kind on his arrival at age, he is not liable therefor, and may recover possession of the property sold by him (at least if the contract of sale be executory merely on his part) without accounting for the consideration received. “The true rule,” as stated in Story on Cont. § 42, “seems to be, that when articles are furnished to the infant which do not come within the definition of necessaries, and which are consumed or parted with; or when money is lent which is expended by the infant; the other party has no remedy to recover an equivalent for the goods or money; the specific consideration given by him being parted with, or not being capable of return. But when the specific consideration, whatever it be, exists, and remains in the hands of the infant at the time of the disaffirmance of the contract, and is capable of return, the infant is bound to give it up, and he is treated as a trustee of the other party, if the contract be made originally in good faith. The ground of such a distinction is, that in the first case the goods or money cannot be returned; and to make the infant liable therefor in damages, merely because they had been used by him, would be to deprive him of his privilege of affirming or avoiding his contract.” See also Boody v. McKenney, 23 Maine R. 517.
In the case of an executed sale by an infant, it has been held that if he disaffirm the sale and seek to recover back the article sold, he must restore the purchase money or other consideration; Smith v. Evans, 5 Humph. R. 70; Badger v. Phinney, 15 Mass. R. 359, 363; and if he go into chancery to set aside his conveyance, he must offer in his bill to restore the purchase money; Hillyer v. Bennett, 3 Edw. Ch. R. 222. Without expressing any opinion upon this question, it is sufficient for the purposes of this case to say, that no case of an executory contract of sale by an infant *342has been found, in which the infant, disaffirming the contract after his arrival at age, has been held accountable for the consideration received and spent by him during his infancy; but all the authorities on the subject seem to be the other way.^jlf the infant in any such case has delivered possession of land contracted to be sold by him, he has an unconditional right to recover it back in an action at law; and a court of equity will not restrain him from doing so, nor impose terms upon the exercise of his right. Such was the decision of the court in Brawner & wife v. Franklin, &c. 4 Gill’s R. 463. Dorsey, J. in delivering the opinion of the court, said, “Establish the doctrine now contended for, and what is the result? Why, that the whole policy of the law as to infantile incompetency to sell, waste and dispose of their property and estates, is frustrated.” “An infant may sell his patrimonial estate, prodigally waste the purchase money in extravagance, gambling and dissipation; and if, when arrived at years of maturity and discretion, he disaffirm the contract, and sue at law for the' recovery of his property, a court of equity will, by injunction, arrest the arm of the law, and say to him, Before you shall further assert your claim to your estate, you must repay to the purchaser all the money you have received from him.” To such a doctrine the court refused to subscribe, and, we think, rightly so.
The court is further of opinion, that the appellant having no equity in regard to the land when he obtained the deed of the 18th of November 1853, and having obtained it with full knowledge of the equity of Wohlford, can derive no benefit from the said deed, but holds the legal title acquired under it in trust for the heirs of Wohlford, and may be compelled by a court of equity to convey said title to them. A purchaser for valuable consideration without notice of a prior equity, and having the legal estate, is entitled to *343priority in equity as well as at law, according to the maxim, that where equities are equal, the laity shall prevail. He is a great favorite of a court of equity, and has been protected to such an extent as to be allowed to take advantage of a deed which he stole out of a window by means of a ladder, and of a deed obtained by a third person without consideration and by fraud. Flagg’s Case, cited in 1 Vern. R. 52; Harcourt v. Knowel, cited in 2 Vern. R. 159; and Culpeper’s Case, cited in 2 Freem. R. 124. “ These, however (it has been well said), were extreme cases, showing indeed how partial equity is to a purchaser, but carrying the doctrine of protection further than it would be at the present day.” 2 White & Tudor’s Eq. Cas. 6, notes to Basset v. Notworthy; 2 Sugd. Vend. 1020. And it has been held that a purchaser “ shall not protect himself by taking a conveyance from a trustee after he had notice of the trust; for by taking a conveyance with notice of the trust, he himself becomes the trustee, and must not, to get a plank to save himself, be guilty of a breach of trust.” Saunders v. Dehew, 2 Vern. R. 271. If, therefore, the appellant could be regarded as a bona fide purchaser when he obtained the deed from Nisewander, he could derive no protection from that deed, which was obtained from a mere trustee of the legal title for Wohlford, and with full knowledge on the part of the appellant of the existence of the trust. Indeed, if he had then been a bona fide purchaser, he would not have needed the deed for his protection against Wohlford, who, in that case, would have been a purchaser with notice of his prior equity. But the appellant cannot be regarded as a purchaser at that time. He had received no conveyance, and paid only a part of the purchase money. His purchase was never more than voidable, and had been avoided; and he ceased to have any equity, in regal’d to the land j but Nisewander was left free to dispose of it as *344if he never had sold it to the appellant. So that Wohlford’s purchase, though made with notice of the prior sale to the appellant, was entirely unaffected thereby, the same having been disaffirmed and avoided. And the appellant, having obtained the deed with full notice that the person from whom he obtained it was a mere trustee 'of the legal title for Wohlford, became himself a mere trustee of that title, and bound therefore to convey it to Wohlford’s heirs.
The court is further of opinion, that any claim which the appellant may have on account of payments made under the original contract with him, or as a consideration for the execution of the said deed, is a personal claim against Nisewander, and cannot be enforced in this suit. It has been already shown that the appellant has no interest in or claim to the land itself. Nor has he any in or to the purchase money, if any, due by Wohlford. If he has, he must have derived it from the deed. But that is a conveyance of the land, and not an assignment of the purchase money. It is adversary to the sale to Wohlford, and not in subordination to it. A claim founded thereon is in conflict with the specific execution of Wohlford’s purchase, to which he is entitled, and which is the purpose of this suit. Such claim, therefore, cannot be enforced in this suit.
The court is further of opinion, that it suffieiently appears from the recital contained in the decree appealed from, that the cause had been duly revived in the name of the heirs of Wohlford; Craig v. Sebrell, 9 Gratt. 131; but at all events, the appellant has no right to complain of any irregularity in that respect, the said decree being in the name and in favor of said heirs, and they being parties to and defending this appeal.
The court is therefore of opinion, that there is no error in the said decree to the prejudice of the appel*345lant. But the court is further of opinion, that as it does not appear that the whole purchase money due by Wohlford had been actually paid when the said decree was rendered, though it had then become payable ; and as the said land was subject to a lien for so much of the said purchase money as may then have remained unpaid; the said decree should have been without prejudice to such lien, and to any proceedings for the enforcement thereof which the said Nisewander or his assigns might be advised to institute; and that the said decree should be amended in that respect, and as amended affirmed.
Decree amended and affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480863/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vance Marcel Gibson appeals the district court’s orders denying his motion for a reduction of sentence filed, pursuant to 18 U.S.C. § 3582(c)(2) (2006), and his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s orders for the reasons stated there. See United States v. Gibson, No. 6:93-cr-00211-WLO-1 (M.D.N.C. Jan. 22 & May 11, 2010). Further, we deny Gibson’s motion for the appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480865/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert William Petty, a federal prisoner, appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C.A. § 2241 (West 2006 & Supp.2010) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Petty v. Cross, No. 2:09-cv-00100-REM-DJJ, 2010 WL 1417965 (N.D.W.Va. Apr. 6, 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/8480866/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy N. Rhodes appeals the district court’s order denying his motion for reconsideration of the denial of his 18 U.S.C. § 3582(c) (2006) motion for a reduction in sentence. Because Rhodes challenged the merits of the district court’s decision in his motion to reconsider, we conclude that the district court lacked authority to consider the motion. United States v. Goodwyn, 596 F.3d 233, 235-36 (4th Cir.2010).
*935We therefore 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/8480867/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey Michael seeks to appeal the district court’s order dismissing without prejudice some claims in Michael’s complaint and directing the Defendant to respond to the remaining claims in the complaint. 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 Michael seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we deny Michael’s motion for appointment of counsel 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/8480868/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Grant, Sr., appeals the district court’s order granting summary judgment in favor of ISEC, Inc. on his employment discrimination claims. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Grant v. ISEC, Inc., No. 1:08-cv-02791-RDB, 2010 WL 1569856 (D.Md. Apr. 21, 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/8480869/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donna Sabol appeals the district court’s order in her civil action granting Heal-thExtras, Incorporation’s motion to dismiss under 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. Sabol v. HealthExtras, Inc., No. 5:08-cv-00198-E, 2009 WL 2151390 (E.D.N.C. July 17, 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/8480920/ | 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/8480921/ | 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/8480870/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding-precedent in this circuit.
PER CURIAM:
Stephen F. Buzzell and Kimberly B. Buzzell appeal the district court’s order granting in part their motion for voluntary dismissal and its subsequent order denying reconsideration and granting the Government’s Fed.R.CivJP. 12(b)(6) motion to dismiss. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Buzzell v. Wallin, No. 3:09-cv-00795-HEH, 2010 WL 4131399 (E.D. Va. May 11, 2010); 2010 WL 2399685 (June 15, 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/8480871/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Evelyn R. Sinkler seeks to appeal the district court’s order transferring this case to the District Court for the District of Maryland. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and eollüeral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 387 U.S. 541, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Sinkler seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480872/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Abdullah Shakoor petitions for a writ of mandamus seeking an order instructing the district court to act on his Fed.R.Civ.P. 60(b) motion. We conclude that Shakoor is not entitled to mandamus relief.
Mandamus relief is a drastic remedy and should be used only in extraordinary circumstances. Kerr v. United States Dist. Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); United States v. Moussaoui, 333 F.3d 509, 516-17 (4th Cir.2003). Further, mandamus relief is available only when the petitioner has a clear right to the relief sought. In re First Fed. Sav. & Loan Ass’n, 860 F.2d 135, 138 (4th Cir.1988).
Mandamus may not be used as a substitute for appeal. In re Lockheed Martin Corp., 503 F.3d 351, 353 (4th Cir.2007). Here, the record reflects that the district *960court acted on Shakoor’s Rule 60(b) motion on October 29, 2009. Though Shakoor asserts that the district court failed to act on the entirety of his claims, our review of the district court’s order indicates that the court denied all claims raised by Shakoor. Further relief is not available by way of mandamus. Accordingly, we deny the petition for writ of mandamus. 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/8480873/ | *961Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey K. Gray appeals the district court’s order dismissing his complaint to Fed.R.Civ.P. 12(b)(6). On appeal, we confine our review to the issues raised in the informal brief. See 4th Cir. R. 34(b). Because Gray’s informal brief does not challenge the basis for the district court’s disposition, Gray has forfeited review of the court’s order. we affirm. We deny Gray’s to appoint counsel an dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480874/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian L. Davis appeals the district court’s order dismissing his federal action against the Hampton Public School District. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s judgment. Davis v. Hampton Pub. Sch. Dist./Special Educ., No. 4:10-cv-00084-RBS-TEM (E.D.Va. July 19, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480875/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Antha Smith appeals the dis-trict court’s order dismissing his patent infringement action for failure to state a claim. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the dis-trict court. Smith v. McClure, No. 6:10-cv-00022-nkm, 2010 WL 2326536 (W.D.Va. June 8, 2010). We dispense with oral ar-gument because the facts and legal conten-tions are adequately presented in the ma-terials 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/8480876/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Warshahennedige Anton Raj Nishantha Fernando, a federal prisoner, appeals the *965district court’s order denying relief on his 28 U.S.C.A. § 2241 (West 2006 & Supp. 2010) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Fernando v. United States, No. 5:09-hc-02018-D (E.D.N.C. Feb. 10, 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/8480877/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clarence T. Fox, Jr., appeals the district court’s orders accepting the recommendation of the magistrate judge, denying relief on his complaint filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and denying his Fed.R.Civ.P. 59(e) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Fox v. Fed. Bureau of Prisons, No. 0:08-cv-02431-GRA (D.S.C. Jan. 27 & Mar. 5, 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/8480878/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samson M. Parker appeals the district court’s order denying his motion for copies at the government’s expense. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Parker v. Dir. of Dep’t of Corr., No. 1:08-cv-00780-LOT-CB (E.D. Va. filed Feb. 16, 2010 & entered Feb. 18, 2010). We deny Parker’s motion to appoint counsel and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court *968and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480879/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tyrone Lamar Roberson appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Roberson v. South Carolina, No. 8:09-cv-01333-CMC, 2010 WL 679070 (D.S.C. Feb. 24, 2010). We deny Robinson’s motions for appointment of counsel and for a transcript. 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/8480880/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samuel Paul Crook appeals the district court’s order denying his motion for ap*970pointment of counsel. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Crook, No. 3:04-cr-00059-MR-1 (W.D.N.C. Feb. 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/8480881/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
L. Ruther appeals the district court’s order in his civil action denying his motion to recuse the district judge. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Ruther v. Contreras, No. 3:09-cv-00495-RLW (E.D.Va. Oct. 16, 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/8480883/ | PER CURIAM: *
The Federal Public Defender appointed to represent Arnulfo Gaspar Morales-Perez 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, *818 L.Ed.2d 493 (1967). Morales-Perez 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/8480884/ | PER CURIAM: *
The attorney appointed to represent Timothy James Pittman 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). Pittman has filed a response. Our independent review of the record, counsel’s brief, and Pittman’s response discloses no nonfrivolous issue for appeal. Accordingly, the 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/8480894/ | PER CURIAM.
Darlene C. Sammarco appeals from the order of the District Court1 dismissing her civil action. Having carefully reviewed the record, we conclude that dismissal was proper for the reasons stated by the District Court. We also find Sammarco’s allegations of judicial bias to be without merit. See Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Accordingly, we affirm.
. The Honorable John R. Tunheim, United States District Judge for the District of Minnesota, adopting the report and recommendations of the Honorable Jeffrey J. Keyes, United States Magistrate Judge for the District of Minnesota. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480895/ | MEMORANDUM **
Jason Stephen Bell appeals from the 108-month sentence imposed following his guilty-plea conviction for receipt of child *322pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Bell’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).
Counsel’s motion to withdraw is GRANTED.
DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480896/ | MEMORANDUM **
Victor Huerta-Martinez appeals from his guilty-plea conviction and 77-month sentence for illegal reentry 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), Huerta-Martinez’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 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/8480897/ | MEMORANDUM **
Jose Joel Aguiar Aguilar and Johana Guadalupe Aguiar, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) orders denying their motions to reconsider and to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the BIA’s denial of a motion to reopen or reconsider, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005), and we deny the petitions for review.
The BIA was within its discretion in denying petitioners’ June 25, 2007, motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s May 23, 2007, decision. See 8 C.F.R. § 1003.2(b)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir.2001) (en banc).
The BIA was within its discretion in denying petitioners’ motion to reopen on the ground that they failed to comply with the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), where they did not file state bar complaints or include sufficient evidence that they had informed the attorneys of the allegations against them, and the ineffective assistance is not plain on the face of the record. See Reyes v. Ashcroft, 358 F.3d 592, 597-99 (9th Cir.2004).
PETITIONS FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480898/ | MEMORANDUM **
In these consolidated cases, Jose Humberto Jauregui Gutierrez and his family, natives and citizens of Peru, petition for review of the Board of Immigration Appeals’ (“BIA”) orders denying their motion to reopen based upon ineffective assistance of counsel and denying their motion to reconsider. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denials of motions to reopen and motions to reconsider, Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.2005), and we deny the petitions for review.
The BIA did not abuse its discretion in denying petitioners’ motion to reopen because the motion was filed more than four years after the BIA’s December 5, 2002, order, see 8 C.F.R. § 1003.2(c)(2), and petitioners failed to demonstrate that they acted with the due diligence required for equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (equitable tolling available “when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence”); see also Singh v. Gonzales, 491 F.3d 1090, 1096-97 (9th Cir.2007).
The BIA also did not abuse its discretion in denying petitioners’ motion to reconsider because petitioners failed to identify any error of fact or law in the BIA’s June 1, 2007, order. See 8 C.F.R. § 1003.2(b)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir.2001) (en banc).
Petitioners’ contentions that the BIA failed to adequately address their arguments and applied an incorrect legal standard are unsupported by the record.
PETITIONS FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480904/ | MEMORANDUM **
James Douglas Sheriffs appeals from the district court’s order revoking his supervised release and imposing a six-month sentence. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Sheriffs’ counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. Sheriffs has filed a pro se supplemental brief.
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 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481651/ | Eobertson, J.
There can be no doubt that a party may, by accepting a legacy coupled with a condition, bind himself to the performance of the condition, although the burden may exceed the benefit. But it must appear that he elected to accept the legacy and perform the condition, with full knowledge of all the facts and circumstances necessary to enable him to make a judicious choice. To make an election conclusive, the party must be informed as to the relative values of the things he elects between. And where he has made an election without. sufficient information, or under a mistake, he will be relieved against the consequences upon the terms of restoring other persons, whose rights may be affected by his acts, to the same situation as if those acts had not been performed.
Hill and wife deny that she ever accepted the provisions of the will of her former husband, Pollock; but I do not consider it necessary to enter upon an examination of this question, because even if it be admitted that she did accept them, and that the construction placed upon the will by the Circuit court is correct, it seems to me to be quite clear, on applying the foregoing well established principles to the case, that she is not bound by such acceptance, and ought to be relieved from its consequences.
It cannot be pretended that she made the election with information as to the condition of the estate j *358that she knew it was insolvent, and that she was assuming a charge instead of deriving a benefit by taking under the will. q
Nor can it be said that injury has resulted to any one fr°m the course she has pursued. On the contrai7> it appears that the property while in her possession and under her management, increased in value; and that the fund for the payment of debts was largely augmented. Pollock’s creditors and the estate of his deceased partner have thus been benefited, and of course can have no right to complain that she did not make known at an earlier day her determination not to take under the will. Besides, the delay in bringing matters to a close was in a great degree attributable to the provisions of Huston’s will prohibiting the sale of his interest in the partnership property from being made within five years after his death.
I think, therefore, that supposing Mrs. Hill to have made an election; she should have been permitted by the court to reconsider it, and to relieve herself from liability for the debts of her former husband, by giving up his property to his creditors.
On another ground also it seems to me that the decision of the Circuit court is erroneous.
I am of opinion, that upon a proper construction of Pollock’s will, his widow was not required to make an election; and that her taking under it could not impose upon her any liability, beyond the value of the. estate, for his debts.
No case of election, under a will, can ever arise, unless the intention of the testator to require the party to elect is clear and decisive. 1 Jarman on Wills 393; Crump v. Redd’s adm’r, 6 Gratt. 372.
Such intention never exists, unless the testator designs a benefit for some other party, who, as well as the legatee put to the election, is the 'object of his bounty.
*359In this case, the whole estate was given to the wife, to the exclusion of even the children of the testator. There was no object of his bounty in whose favor he could have designed an election to operate: For it cannot be supposed that he intended to make his ereditors objects of his bounty at the expense of his wife : that, knowing his estate to be insolvent, he devised it to her, with the view of imposing upon her the obligation of paying his debts, however much their amount might exceed its value; and of thus taking from her, and from his and her children, the moans of. support, which after his death, she might acquire by her own industry. Yet we must believe all this before we can come to the conclusion that he intended to give her his estate only upon the condition that she should become personally bound for his debts, whatever their amount might be.
But it may be said that while it is clear he did not design this, such is the effect of his will. That he was himself mistaken as to his pecuniary condition, and did not foresee the consequences of the provision he made; and that the will, being clear and unambiguous in its language, must be carried into effect even although the result may be different from what he anticipated.
There can, I think, be no doubt that he was mistaken as to the situation of his affairs,' and supposed there would be something left for his wife after the payment of his debts. This made him perhaps less cautious in his language than he might otherwise have been. If he had doubted the sufficiency of his estate to pay his debts, he would probably have used terms about which no controversy could have arisen.
But the whole question is at least one of intention: for, as has been shown, a legatee can never he required to elect* unleás the testator intends it: and can the fact that the testator labored under a mistake like this *360create an intention for him, which we know never could really have existed for an instant in his mind ?
In construing wills, courts are never bound to give a strict and literal interpretation to the words used, and by adhering to the letter, defeat the manifest object and design.
When, in this case, we look at the will itself; the relative situation of the parties; the obvious purpose to benefit the wife; the improbability, nay the absurdity of the idea that the testator intended to charge her personally, beyond the value of the estate he gave her, with the payment of his debts; we cannot hesitate in deciding that the will properly construed means no more nor less than that the widow should take the whole estate subject to the payment of the debts of the testator.
But it has been insisted in the argument here, that if Hill and wife are not liable for the payment of Pollock’s debts by reason of her accepting the provisions of his will, they are at least bound to account for the profits made from his estate after his death, and that thdse profits greatly exceed the rents with which they have been charged.
Numerous cases have been cited to show that a surviving partner carrying on business with the partnership effects, must account for the profits ; and that an executor carrying on trade with the assets of his testator, is held accountable for all profits, even though he makes himself personally liable in the business.
These are unquestionably well settled rules of law, but they have no application to this case.
No question arises as to the liability of the surviving partner for profits; for Pollock did not, after the death of Huston, continue the business as surviving partner, but became tenant of the property at a rent agreed upon between him and the executor of Huston : And there is no good ground for insisting that *361his executrix made herself liable for profits, either to the firm, or to his estate.
No such liability was suggested in the court below. No account of profits was asked for or ordered ; and there is nothing to show that profits were in fact made. But if it be conceded that profits were made, she is not bound to account for them. She subjected the assets to no risk or hazard'; and cannot be considered, in the sense of the rule referred to, as having continued them in trade. She is properly to be regarded as a tenant of the property; and least of all, have the appellees any right now to treat her otherwise.
In the account filed as an exhibit with the bill, she is charged with rent for the whole property, at the same rate which had been agreed upon as to Huston’s moiety, between her husband in his lifetime and Huston’s executor. This account was made out under the supervision and with the aid of Huston’s executor, and of his adult children, and was admitted by them to be correct, as far as the data in the possession of the parties at the time enabled them to state it. The correctness of the charges of rent was not only then acquiesced in by all parties, but in the report of the commissioner, made under the order of court, the same charges were continued without objection from any quarter. This report was confirmed, and the decree now appealed from was entered in favor of the appellees in conformity with it.
Under these circumstances, it cannot be doubted that Mrs. Hill must be considered as having held the property as tenant, at a fair rent, for which she has duly accounted.
The appellants are in no way liable for the debts of the firm of Pollock & Huston, the estate of Huston being alone liable after the social assets shall have been exhausted, inasmuch as the whole of the indi*362vidual assets of Pollock’s estate have been absorbed by his own debts.
To.the extent that the appellants have paid debts of the firm out of their own funds, they must, after the exhaustion of the social assets, be reimbursed by the estate of Huston.
I think the decree should be reversed, and one entered in conformity with the foregoing opinion.
Allen, P. and Moncure and Lee, Js. concurred in the opinion of Robertson, J.
Daniel, J. dissented.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481652/ | Moncure, J.
This case involves the doctrine of what is familiarly called “the wife’s equity;” the origin and foundation of which are involved in much doubt, but which has been long and firmly established in England; 2 Story’s Eq. § 1402, 1407, &c.; and though but recently recognized in this state, is now well established here also. Gregory’s adm’r v. Mark’s adm’r, 1 Rand. 355; Gallego v. Gallego’s ex'or, 2 Brock. R. 285; Browning v. Headley, 2 Rob. R. 340; Dold’s trustee v. Geiger’s adm’r, 2 Gratt. 98; James, &c. v. Gibbs, &c. 1 Pat. & Heath 277. I will not attempt to *369investigate it fully, but will state only so much of it as seems to be pertinent to the present case. The authorities on the subject are collected and commented on in 1 Lead. Cas. in Eq. Am. ed. 1859, top paging, 453-501.
The doctrine may be briefly stated thus: that a wife.is entitled to an equitable settlement out of her property, not only against her husband, but against all creditors of, and purchasers from him, whenever it is recoverable only in a court of equity, or the aid of that court is actually invoked for its recovery; unless the husband has become a purchaser of the property by an antenuptial contract with the wife. If it be recoverable at law, and the aid of a court of equity be not actually invoked to recover it, her equity does not exist. And it ceases to exist, though the property be recoverable in equity, whenever it has been actually recovered or received without any claim by her to a settlement. Whenever the husband, in right of his wife, has obtained possession of, and title to her property, his own title jure mariti, becomes complete; and the property, to the extent of his title, is subject to his right of disposition, and to the claims of creditors and purchasers, like any other property of his any otherwise acquired. 2 Story’s Eq. § 1403. If he or they have occasion to go into a court of equity for its assistance in regard to property to which his title has thus become complete; that court cannot, as the pi’ice of its assistance, impose upon him or them the terms of a settlement out of it on the wife. The relief sought in such a case, being due ex debito justitiee, must be decreed unconditionally. It may be laid down as a universal rule, that when property, by being reduced into the husband’s possession, has once been released from the wife’s equity, it can never again be subjected to it. I mean of course the wife’s equity, technically so called; which overrides the claims of the husband *370and all persons claiming under or against him. 1 Lead. Cas. in Eq. 468, 498. Property acquired by the husband jure mariti, like any other property of his, may B become liable to the equitable claims of the wife in a suit for a divorce a mensa et thoro, and perhaps in a suit for alimony. Id. 496-7. But such lability is subordinate to prior liens acquired under or against the husband.
It seems to have been at one time considered that real estate was not subject to the wife’s equity; and, at all events, that it was not so subject if it were not a trust estate, but one in its nature legal, which becomes from collateral circumstances the subject of a suit in equity; as where the legal estate happens to be outstanding in a mortgagee. But both of these points were decided affirmatively in the case of Sturgis v. Champneys, 5 Mylne & Cr. 97; reported also in 9 Law J. N. S. p. 100. In that case the wife of an insolvent was entitled for her life to real estate which had been devised to her without the intervention of trustees; but the legal title was outstanding in certain mortgagees, and the assignee of the insolvent was obliged to file a bill to make his title (subject to the incumbrances) effectual. It was held by Lord Chancellor Cottenham (reversing the decision of the vice chancellor), that the wife was entitled to a settlement out of the rents and profits of the estate during the coverture. In Hanson v. Keating, 4 Hare 1, 30 Eng. Ch. R. 1, Vice Chancellor Wigram, who had been counsel for the assignee of the husband in Sturgis v. Champneys, remarked, that prior to that case the opinion of the profession had, he believed, become settled, that estates in land were not subject to the same equity, upon the broad and important principle of preserving a strict analogy between legal and equitable estates in land. But, in deference to that judgment, he followed it, “ although (he further remarked), *371if that case were out of the way, I should probably have decided otherwise. There would be no difficulty (he said) in distinguishing the facts of this case from those in Sturgis v. Champneys; but the reasoning in that case would remain, and I cannot disregard it.” That case has also been followed by other cases, and its authority seems to be now fully established in England. Freeman v. Fairlie, 11 Jur. 447; Newenham v. Pemberton, 17 Law J. Equity N. S. p. 99; S. C. 1 D. G. & Sm. 644. I have seen no American case in conflict with it. In Dold’s trustee v. Geiger’s adm’r, 2 Gratt. 98, no question was raised as to the liability of real estate to the wife’s equity; but it was held not to be liable in that case, because the husband had the legal title and possession. See also Van Duzer v. Van Duzer, 6 Paige’s R. 366; and Wickes v. Clarke, 8 Id. 161. In James, &c. v. Gibbs, &c. 1 Pat. & Heath 277, the Special court of appeals referred to and recognized the case of Sturgis v. Champneys, and decreed a settlement on the wife out of her real estate. It is unnecessary, however, in my view of this case, to decide the question, and I therefore express no opinion upon it, but will assume, for the purposes of the case, that the doctrine is alike applicable to real and personal estate.
As to the amount of the wife’s property to be settled ; the general rule at one time was, to settle upon her one-half of the subject. 1 Roper on Husband & Wife 260; 1 Leading Cas. in Eq. edition of 1859, p. 483. But this is a matter in the discretion of the court, which will take into consideration the amount of the wife’s fortune already received by the husband, or any previous settlement which may have been made. Id. Accordingly, in Coster v. Coster, 9 Sim. R. 597, three-fourths of the fund was settled on the wife by Sir L. Shadwell, V. C.; and in Napier v. Napier, 1 Drew. & Walk. 407, six hundred pounds out of a fund *372amounting to one thousand pounds, were settled on her by Ld. Ch. Sugden. It has been said that the court will not, except perhaps under very peculiar circumstances, settle the whole of the property on the w^'e. And in Beresford v. Hobson, 1 Madd. R. 362, in which the master, upon a reference, had approved of the settlement of the whole, Sir Thomas Plumer, Y. C. sustained the exception taken to the report; observing, after an .elaborate review of the authorities, that the question in most cases had been, how much the wife should have; and in determining that, the court had exercised a discretion, and had not tied itself down to any precise rule, but had never given the whole. But the whole has been given in many subsequent English cases, which are cited in 1 Lead. Cas. in Eq. 4S5. The American cases seem to be to the same effect, many of which are cited in the notes of Hare & Wallace to that valuable work, p. 499. This court, in Browning v. Headley, 2 Rob. R. 340, gave the whole to the wife. The true rule on the subject seems therefore to be, that the settlement should be reasonable and adequate, and may be of part or the whole of the property, according to the sound discretion of the court upon all the circumstances of the case. The usual practice is to refer it to a commissioner to en-quire and report what would be a reasonable and adequate settlement. But the court may decide this question for itself, if there be sufficient material in the record for the purpose : and if it plainly appear that the whole property subject to the settlement is not more than adequate, a reference is of course unnecessary.
As to when the provision for the wife should take effect; this, also, is a 'matter of discretion with the court upon all the circumstances. If her husband lives with and supports her, it may be made to take effect when he ceases to do so, or at his death. But *373if he has deserted or ill treated her, or is insolvent, or is unable or fails to support her, it will be directed to commence immediately. 1 Lead. Cas. in Eq. 499.
The wife’s equity is so substantial an interest that it will constitute a valuable consideration for a post-nuptial settlement by the husband upon her (made while the equity exists), which will be sustained against his creditors, to the extent of the equity, by a court of chancery. Id. 500. “ The same circumstances which would induce the court (said the V. C. in Wickes v. Clarke, 8 Paige’s R. 166) to compel a settlement by the husband, or those claiming under him or in his right, will operate to uphold a deed of settlement already made’, to the same extent that would be required if one should be directed to be made under the view of the court.”
The equity of the wife will be administered to her, not only in a suit in which the husband or his assignee is plaintiif, seeking the aid of a court of equity to recover her property; but generally also, in a suit brought by her or her trustee for the purpose of asserting it. This was at one time doubted; it being supposed that the jurisdiction rested solely on the ground that he who asks equity should do equity; but it has long since been firmly established. 2 Story’s Eq. § 1414; 1 Roper on Husb. and Wife 260; Elibank v. Montolieu, 5 Ves. R. 737; Newenham v. Pemberton, 17 Law J. Equity N. S. 99; 1 Lead. Cas. in Eq. 468.
There seems to be one exception to this general rule, and that is, where the property is in its nature legal, but the aid of a court of equity is invoked for its recovery on some collateral ground of jurisdiction; as, in the case of a mortgage debt recovered in a foreclosure suit. There, the wife’s equity attaches solely on the ground that he who asks equity must do equity, and therefore cannot be asserted in a suit brought by her. 1 Roper on Husb. and Wife 258, 260.
*374The argument of the counsel for the appellees, that the doctrine of the wife’s equity, recognized and acted on by this court, is that which had been settled in (England at the time of the establishment of our chancery court, and that we must therefore look only to the English decisions prior to that time to ascertain the law upon the subject, is, I think, untenable. The subsequent English decisions are, of course, not hinding upon us; but they are entitled to great inspect, and at least as much on this question as on any other.
Having stated so much of the doctrine as seems to be pertinent, I will now endeavor to apply the law to the facts of this case.
There can be no question but that the doctrine applies to Mrs. Poindexter’s portion of her father’s personal estate. That estate at his death devolved on his personal representative. His distributees at law, of whom she was one, could recover it only in equity. She asserted her claim to an equitable settlement out of her distributive portion before it was received or recovered by her husband, and before the report of partition of the estate was confirmed by the court. And though the report was confirmed and her portion received before the decree sustaining the settlement which had been made upon her by her husband, yet the confirmation was expressly subject to the future order or decree of the court upon her petition for a settlement which she had previously filed. The deed of settlement of the 20th of October 1852 was ceitainly executed before her husband received possession of her portion or any part of it; and that settlement, having afterwards been sustained by the decree of the court, is valid (if properly sustained), notwithstanding possession of the property was received between the dates of the deed and of the decree. The argument of the appellee’s counsel, that the administrator of Bowyer, being also one of his distributees, by bringing *375the suit for partition, elected thenceforward to hold the subject as distributee and not as administrator; that the possession of one parcener is the possession of all; and that therefore Poindexter was in possession of his wife’s portion of the personal estate before she claimed her equity, cannot be sustained. The administrator did not cease as such to hold the personal estate of his intestate, so far as the record shows, until it was actually distributed ; until which time it was assets in his hands, and he was not bound to distribute it without refunding bonds.
Nor can there be any doubt as to the propriety of the decree approving and confirming the said deed. The settlement thereby made was certainly not excessive, in view of all the circumstances of the case. And the husband being insolvent and unable to support his family, it was properly provided in the deed that the property should immediately enure to the benefit and maintenance of the wife and children. The deed may not be in such form as the court would have prescribed ; but the wife being satisfied with it, and having petitioned for its confirmation, the court properly confirmed it, as it did not prej udice the rights of the husband’s creditors.
Then as to the real estate: Was the wife entitled to an equitable settlement out of her husband’s interest in that estate (assuming the doctrine to be applicable to real estate) ? She derived it by descent from her father, who at the time of his death was possessed thereof and had a legal title thereto. Her husband had no occasion to go into equity to obtain possession or complete his title. If any remedy had been necessary by reason of the act of a wrong-doer in taking or withholding possession, it would have been a legal remedy. But none was necessary. There was no interruption, either of the title or possession, both of which devolved at once upon the. heirs at law of her *376father as coparceners. The possession of one was the possession of all the coparceners. 1 Lom. Dig. 489, And the seizin of one was sufficient to entitle the husband of another to be tenant by the curtesy. marg- § 14; 1 Bright on Husb. and Wife, p. ii7, ch. 10, § 1, Nos. 6 and 7. But here all were actuully seized, so far as the record shows. Momentary seizin is sufficient to complete the husband’s title. Id. No. 9. But in this case there has been no interruption of his seizin. A husband by becoming possessed of his wife’s freehold estate of inheritance during the coverture, acquires a freehold interest during their joint lives, if there be no issue of the marriage, and during his own life, if there be such issue. In the former case, he and his wife are seized in her right, and in the latter he is seized in his own right as tenant by the curtesy initiate, and may maintain an action in respect to his freehold interest in his own name only. Id, p. 112, ch. 9, No. 1, 6, 8 and 9. In both cases, his interest is unconditional and unencumbered, and is subject to his right of disposition and liable to his debts. In this case, there being issue of the marriage, the husband became tenant by the curtesy initiate of his wife’s interest in her father’s real estate, and his freehold estate thus acquired is not liable to his wife’s equity. That such an estate is not so liable, necessarily results from principles before stated, and has been expressly decided, not only in New York; Van Duzer v. Van Duzer, 6 Paige’s R. 366; Wickes v. Clarke, 8 Id. 161; but also by this court; Dold’s trustee v. Geiger’s adm’r, 2 Gratt. 98. In the last mentioned case, Dold and wife brought a suit to recover her share of her father’s real and personal estate on the ground that he had died intestate. After a protracted litigation, the intestacy was established and the plaintiffs succeeded. Pending the litigation the wife, by her next friend, filed a petition, praying that her share of the *377estate might be settled on her; and the husband by his answer assented. The Circuit court decreed accordingly; but with a proviso that the rights of the husband’s creditors which may have attached upon the property before the execution of the settlement, should not be affected. The decree further confirmed a division of the real estate that had been previously made, and directed the wife’s share to be delivered to the trustee, to be held for her separate use. The suit for the account and the distribution of the personal and profits of the real estate, thereafter proceeded. The result of the suit showed that the share of the wife, exclusive of her share of the slaves, amounted to about four thousand five hundred dollars, much the larger part of which arose from the rents and profits of the real estate, hires of negroes and interest on personalty accruing during the pendency of the suit; and that her share of the slaves was in value about two thousand seven hundred dollars. This subject was by the decree of the Circuit court charged with a debt of the husband due by judgment, amounting in the aggregate, at the date of the decree, to about one thousand five hundred dollars. The trustee of the wife appealed from the decree, which was affirmed by this court. Judge Stanard thus concluded his able opinion in the case, in which the other judges concurred: “In respect to the rents and profits of the real estate, he (the husband) was at law and in equity absolutely entitled to them. Of that real estate there had been actual possession, by virtue of such actual possession by one or more coparceners, and they were accountable at law to the husband for the rents and profits,' and he might sue therefor without joining the wife. This subject ought to have been charged, though the principal of the distributable share of the personal estate should be protected in the hands of the wife and her trustee by the relinquishment of the husband. To *378the tenancy by the curtesy of the husband in the real estate, he had legal title; and that was clearly chargeable with his debts, irrespective of his voluntary surrender thereof to the wife.”
^ husband’s title as tenant by the curtesy having thus become complete, and not being liable to the wife’s equity while the estate was held in coparcenary, no state of things which could afterwards arise could subject his interest to that equity. It then stood upon the same footing with his other property, and became alike subject to his right of disposition and the claims of his creditors. Therefore, he or his assigns or judgment creditors had a right to go into equity to have a partition of the real estate, and an allotment of his wife’s portion thereof; and his judgment creditors had a right to the aid of that court in enforcing the lien of their judgments by a sale of his interest, without being subjected to the condition of a settlement on his wife or any other condition whatever. A parcener acquires no new right, nor is his old right enlarged by a partition. He is entitled to a partition as a legal incident to his estate in coparcenary ; and it is merely a different mode of enjoying the estate, to which he may resort at his election. While the estate is held in coparcenary, his seizin is of an undivided interest, and pervades the whole estate. After the division and allotment, his seizin is confined to his several share, but as t’o that, is exclusive. And so too a judgment creditor of the husband coming into equity to enforce the lien of his j udgment by a sale of an interest acquired by the husband in the wife’s real estate, is seeking no new right nor to enlarge an old one, but is merely pursuing a remedy expressly given him by law to effectuate a legal lien upon his debtor’s property. The wife having no inherent equity in such a case, can acquire none from the fact that she is a defendant to the suit. The *379maxim that he who asks equity must do equity, does not apply to the case. Hanson v. Keating, 30 Eng. Ch. R. 1.
The wife’s equity attaches, as we have seen, only when resort must be, or is actually, had to a court of equity to reduce her property into her husband’s possesión, or complete his title thereto, and not when resort may be had to that court for any purpose after such possession has been obtained and title completed. The Special court of appeals decided otherwise in James, &c. v. Gibbs, &c. 1 Pat. & Heath 277; but, with the highest respect for the opinions of that court, I must say that I think the decision contrary to settled principles of law, if not to the decision of this court in Dold’s trustee v. Geiger's adm'r, supra. And I am confirmed in this view by the fact that one of the learned judges who concurred in the decision of the Special court, afterwards decided this case otherwise in the court below, and must therefore have changed his opinion.
• But it is argued by the counsel for the appellants, that as advancements had been made by the intestate to his children in his lifetime, a resort to a court of equity was indispensable to settle an account of the advancements, and ascertain the share to which each of the children was entitled in the partition of the estate ; and that therefore the wife’s equity attached to Mrs. Poindexter’s share as well of the real as of the personal estate. I do hot think this conclusion correct. Notwithstanding the fact that advancements happened to have been made to the children, the heirs had a legal title to, and were in possession of the inheritance to the extent of their respective interests, from the death of the ancestor. The title and possession of each parcener as to his undivided share was then complete. The occasion which afterwards arose to go into a court of equity for a partition of the es*380tate and an allotment of the several portions, cannot affect or impair the- right of any person concerned. The account of advancements is a mere incident of the partition, affecting of course the extent and amount of severa^ portions, but not the title of the parceners. The distinction is between going into equity to complete the husband’s title, and going there for some purpose in regard to the property after the title is completed. In the former case, the wife’s equity attaches ; in the latter, it does not. Going into a court of equity for an account of advancements and partition of real estate descended and in possession of the heirs, is a case of the former kind. And so is going there to enforce a judgment lien upon a husband’s interest in his wife’s portion of the estate.
It is further argued, that it does not appear of what the advancements consisted, whether of real or personal estate; and that Poindexter and wife may have been entitled to more personal, and less real estate than they received in the division. See Code, p. 525, ch. 123, § 15. The answer to this argument is, that the partition was fairly made, was not excepted to, and has been confirmed by the court. It must therefore now be considered that they received their due and relative portion of the real and personal estate.
I think there is no error in the decree of the Circuit court, and am for affirming it.
The other judges concurred in the opinion of Moncure, J.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480899/ | MEMORANDUM **
Edwin Situmeang and Daniel-Edgar Hasudungan, natives and citizens of Indonesia, petition for review of the Board of Immigration Appeals’ (“BIA”) orders dismissing their appeal from an immigration judge’s decision denying their applications for withholding of removal and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings, and we review de novo the agency’s legal determinations. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009). We deny in part and grant in part the petition for review, and we remand.
Substantial evidence supports the agency’s finding that petitioners’ experiences, including a robbery during which Hasudungan was injured, do not constitute past persecution, see Hoxha v. Ashcroft, 319 F.3d 1179, 1181-82 (9th Cir.2003), and petitioners have not demonstrated any basis for past persecution under Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045-46 (9th Cir.2007).
However, the BIA did not apply the disfavored group analysis to petitioners’ claim that they faced a clear probability of future persecution on account of their Christian religion. In light of our recent intervening decision in Tampubolon v. Holder, 610 F.3d 1056, 1062 (9th Cir.2010), we remand for the BIA to assess petitioners’ withholding of removal claims under the disfavored group analysis in the first instance. See Wakkary, 558 F.3d at 1067, see also INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
Substantial evidence supports the agency’s denial of petitioners’ CAT claim because petitioners failed to demonstrate a likelihood of torture upon return to Indonesia. See Wakkary, 558 F.3d at 1067-68.
PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480900/ | N.R. SMITH, Circuit Judge,
dissenting in part:
I dissent as to the panel’s holding on the past persecution finding. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480901/ | MEMORANDUM **
Oleh Grigorievich Rutko, a native of the former Soviet Union and citizen of Ukraine, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum and withholding of removal. Rutko also seeks review of the IJ’s finding that he filed a frivolous application for asylum. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence findings of fact, including adverse credibility determinations. See Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir.2001). We review a determination that an applicant knowingly made a frivolous application for asylum for compliance with a procedural framework outlined by the BIA. See Ahir v. Mukasey, 527 F.3d 912, 917 (9th Cir.2008). We review de novo due process claims. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We deny the petition for review.
Substantial evidence supports the IJ’s adverse credibility determination based upon Rutko’s submission of a fraudulent visa with his asylum application. See Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir.2004) (fraudulent documents going to the heart of the claim may justify an adverse credibility finding); see also Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003) (date of entry is one of the key elements of the asylum application that must be credibly established by the applicant). Accordingly, Rutko’s asylum and withholding of removal claims fail. See Farah, 348 F.3d at 1156-57.
The record does not compel reversal of the IJ’s determination that Rutko filed a frivolous asylum application because: (1) Rutko was given notice of the consequences of filing a frivolous application; (2) the IJ made specific findings that Rut-*393ko knowingly filed a frivolous application based on his submission of a fraudulent visa; (3) the IJ’s frivolous findings were supported by a preponderance of the evidence; and (4) Rutko was given sufficient opportunity to explain why he initially testified the fraudulent visa he submitted was valid, and failed to do so. See Ahir, 527 F.3d at 917-19; In re Y-L-, 24 I. & N. Dec. 151, 155-162 (BIA 2007).
Finally, Rutko contends his due process rights were violated because the IJ should have continued proceedings to allow a full psychological examination, and should have rendered a decision when Rutko submitted his case on the declaration. These contentions fail. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error and substantial prejudice for petitioner to prevail on a due process claim).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480913/ | 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/8480914/ | 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/8480905/ | MEMORANDUM **
In these consolidated petitions for review, Oscar Romero-Aguilar petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s removal order. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law and constitutional claims. Khan v. *400Holder, 584 F.3d 773, 776 (9th Cir.2009). We deny the petition for review in No. 05-72978, and we dismiss the petition for review in No. 05-73201.
Romero-Aguilar does not challenge the agency’s determination that he is removable under 8 U.S.C. § 1227(a)(2)(A)(iii) based on his 1989 conviction for lewd or lascivious acts with a child under 14 years of age in violation of California Penal Code § 288(a).
The agency determined that Romero-Aguilar is ineligible for relief under former section 212(c), 8 U.S.C. § 1182(c) (repealed 1996), because his ground of removability lacks a statutory counterpart in a ground of inadmissibility. See 8 C.F.R. § 1212.3(f)(5). Romero-Aguilar’s legal and constitutional challenges to this determination are unavailing. See Abebe v. Mukasey, 554 F.3d 1203, 1208 n. 7 (9th Cir.2009) (en banc).
We do not reach the equal protection contentions Romero-Aguilar sets forth for the first time in his reply brief. See Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir.1996) (per curiam) (issue raised for the first time in the reply brief is waived).
Romero-Aguilar’s motion for the court to set a supplemental briefing schedule is denied.
We lack jurisdiction to review Romero-Aguilar’s transferred habeas petition because it was not pending in the district court on the date of enactment of the REAL ID Act. See Singh v. Mukasey, 533 F.3d 1103, 1105 (9th Cir.2008).
In No. 05-72978: PETITION FOR REVIEW DENIED.
In No. 05-73201: PETITION FOR REVIEW DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480906/ | MEMORANDUM **
The United States of America appeals from the 24-month sentence imposed on Dewayne Donelson following his guilty-plea conviction for distribution of at least five grams of cocaine in the form of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(l)(B)(iii). We have jurisdiction under 28 U.S.C. § 1291. We vacate and remand for re-sentencing.
The government contends that the district court erred when it imposed a sentence below the statutory mandatory minimum after considering disparities in sentences for offenses involving crack and powder cocaine. “Congress intended not to disturb statutory mínimums through the application of the [18 U.S.C.] § 3553(a) factors.” See United States v. Wipf, 620 F.3d 1168, 1171 (9th Cir.2010). Because the district court based the sentence on a factor set forth in 18 U.S.C. § 3553(a), rather than subsections (e) or (f), we vacate and remand for re-sentencing.
VACATED and REMANDED.
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/8480907/ | MEMORANDUM **
In these consolidated petitions for review, Crispin Clanor Endicio and Maria Elsa Maído Recio, natives and citizens of the Philippines, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s decision denying their applications for relief from removal, as well as the BIA’s order denying their subsequent motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005) and for substantial evidence the agency’s factual findings, Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th Cir.2007) (en banc). We dismiss in part and deny in part the petition for review in No. 08-71729, and deny the petition for review in No. 08-75193.
We lack jurisdiction to review the BIA’s discretionary determination that petitioners failed to show exceptional and extremely unusual hardship to a qualifying relative. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005). Petitioners’ contention that the agency applied an incorrect hardship standard is not supported by the record. See Mendez-Castro v. Mukasey, 552 F.3d 975, 980 (9th Cir.2009).
In their opening brief, petitioners fail to address, and therefore have waived any challenge to, the agency’s denial of asylum and relief under the Convention Against Torture. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996).
Substantial evidence supports the BIA’s determination that petitioners failed to demonstrate their eligibility for withholding of removal. See Gormley v. Ashcroft, 364 F.3d 1172, 1178-79 (9th Cir.2004).
The BIA did not abuse its discretion by denying petitioners’ motion to reopen, where the BIA considered the new evidence of their United States citizen son’s mental health condition and acted within its broad discretion in determining that the evidence was insufficient to warrant reopening. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (BIA’s denial of a motion to reopen shall be reversed only if it is “arbitrary, irrational or contrary to law.”)
In No. 08-71729: PETITION FOR REVIEW DISMISSED in part; DENIED in part.
In No. 08-75193: PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480908/ | MEMORANDUM **
Luisa Deleon-Gramajo, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s (“IJ”) decision denying her motion to reopen deportation proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and de novo questions of law and claims of due process violations. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petition for review.
The agency did not abuse its discretion in denying Deleon-Gramajo’s motion as untimely because it was filed almost 17 years after the final administrative order, see 8 C.F.R. § 1003.28(b)(1), and Deleon-Gramajo failed to establish she acted with the due diligence required for equitable tolling of the filing deadline, see Iturribarria v. I.N.S., 321 F.3d 889, 897 (9th Cir.2003) (equitable tolling is available to a petitioner who is prevented from filing due to deception, fraud or error, and exercises due diligence in discovering such circumstances); cf. Ghahremani v. Gonzales, 498 F.3d 993, 1000 (9th Cir.2007) (due diligence established where petitioner demonstrates “steadfast pursuit” of her case). We therefore do not reach Deleon-Gramajo’s contentions related to her former counsel’s alleged ineffective assistance.
The IJ properly determined that Deleon-Gramajo abandoned her application for asylum because it was not filed by the IJ’s August 18, 1990, deadline. See 8 C.F.R. § 1003.31(c) (IJ may set filing deadlines and deem waived an application not filed by the deadline). It follows therefore that Deleon-Gramajo’s due process rights were not violated. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for a petitioner to prevail on a due process claim).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480910/ | 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/8480912/ | 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 |
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