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https://www.courtlistener.com/api/rest/v3/opinions/8481031/ | PER CURIAM:
Robert Love Taylor, Jr. appeals the district court’s order dismissing his petition for writ of mandamus show cause. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Taylor v. State of Va. Div. of Child Support Enforcement, No. 1:10-cv-00803LMB-TCB (E.D.Va. July 22, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481032/ | PER CURIAM:
Arthur M. Field, Kathryn Taillon, and T. Bart Kelley appeal the district court’s order adopting in part the magistrate judge’s recommendation and granting summary judgment in favor of several state employees in this 42 U.S.C. § 1983 (2006) action. We have reviewed the record and find no reversible error. Accordingly, we deny *895the Appellants’ motion to file a state transcript as an attachment to their informal brief and affirm for the reasons stated by the district court. Field v. McMaster, No. 6:09-cv-01949-HMH, 2010 WL 3257888 (D.S.C. Aug. 17, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481034/ | PER CURIAM:
Genora Flemmings appeals the district court’s order accepting the recommenda*898tion of the magistrate judge and granting Defendant’s motion for sanctions and dismissing the complaint for failure to comply with discovery orders. We affirm.
The timely filing of specific objections to a magistrate judge’s recommendation is necessary to preserve appellate review of the substance of that recommendation when the parties have been warned of the consequences of noncompliance. United States v. Midgette, 478 F.3d 616, 621 (4th Cir.2007); Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir.1985); see also Thomas v. Am, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Flemmings has waived appellate review by failing to file objections after receiving proper notice.
Accordingly, we affirm the judgment of the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481035/ | PER CURIAM:
Zhenlu Zhang appeals the district court’s order denying his motion for leave to file a Fed. R. Civ. Pro. 60(b) motion for reconsideration and a motion for sanctions after the imposition of a pre-filing injunction. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Zhang v. Science & Tech. Carp., No. 8:08-cv-01716-DKC (D.Md. Apr. 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/8481036/ | PER CURIAM:
Maryann Laremont-Lopez appeals the district court’s margin order denying her motion requesting that the court permit her to review the entire record of the proceedings in her closed civil case, and advise her which documents had been sealed and who had viewed them. We have reviewed the record and find no reversible error. Accordingly, we affirm the order. Laremontr-Lopez v. Virginia Dep’t of Health, No. 2:06-ev-00290-RAJ-FBS (E.D.Va. Apr. 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/8481037/ | PER CURIAM:
Donald X. Kidd appeals the district court’s order denying relief on his employment discrimination complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Kidd v. TA Operating, LLC, No. 3:10-cv-00069-HEH, 2010 WL 1039825 (E.D.Va. Mar. 18, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481038/ | PER CURIAM:
Eddie Gamble petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his motion filed pursuant to 28 U.S.C.A. § 2255 (West Supp.2010). He seeks an order from this court directing the district court to act. Our review of the district court’s docket reveals that the district court denied the motion on May 6, 2010. Accordingly, because the district court has recently decided Gamble’s case, we deny the mandamus petition as moot. We grant leave to proceed in forma pauperis. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before 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/8481039/ | PER CURIAM:
Darrell W. Samuel appeals the district court’s order denying his motion seeking an order compelling the Government to file a Fed.R.Crim.P. 35 motion on his behalf and request a sentence reduction based on substantial assistance. 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. Samuel, No. 3:94-cr-00773-JFA-1 (D.S.C. May 11, 2010). We dispense *906with 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/8481040/ | PER CURIAM:
Teeran Tyron Gresham appeals the district court’s order denying his “Motion to Recall” the court’s June 2, 2009 order. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Gresham, No. 7:03-cr-00064-F-l, 2010 WL 2632019 (E.D.N.C. June 30, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481140/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ernest Lee Wynn, Jr., 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. Wynn v. Badgett, No. 1:10-cv-00490-LO-TCB (E.D. Va. June 7, 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/8481044/ | PER CURIAM:
James A. Calhoun-El 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. Calhoun-El v. Maynard, No. l:09-cv-03085RDB, 2010 WL 2342384 (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/8481045/ | PER CURIAM:
Stephen Andrew Carden appeals the magistrate judge’s * order affirming the Commissioner’s decision denying Carden’s application for supplemental security income. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the magistrate judge. Carden v. Astrue, No. 2:07-cv-00025, 2008 WL 867942 (S.D.W.Va. Mar. 28, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
This case was decided by a magistrate judge with the parties' consent pursuant to 28 U.S.C. § 636(c) (2006). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481046/ | PER CURIAM:
Vernon Corneilus Bryant, Jr., appeals the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm the judgment of the district court. See United States v. Bryant, No. 4:04-cr-00075-D-3 (E.D.N.C. June 17, 2010); United States v. Hood, 556 F.3d 226 (4th Cir.), cert, denied, — U.S. -, 130 S.Ct. 321, 175 L.Ed.2d 212 (2009) (noting that defendant convicted of a crack offense, but sentenced pursuant to a mandatory statutory minimum sentence, is ineligible for a reduction under § 3582(c)(2)). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481047/ | PER CURIAM:
Stuart Wayne Tompkins 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. Tompkins v. Mitchell, No. l:08-cv-00322-GCM, 2009 WL 995573 (W.D.N.C. Apr. 14, 2009). Tompkins’ motions for default judgment, for a temporary restraining order or preliminary injunction, and for appointment of counsel are denied. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481048/ | PER CURIAM:
Mark Dewayne Price 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. Price v. Corr. Med. Seros., No. 2:08-cv-00259, 2010 WL 1904627 (S.D.W.Va. May 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/8481049/ | PER CURIAM:
David Hill appeals the district court’s order denying his motion for relief from judgment. 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. Hill, No. l:01-cr-00191-CMH-l (E.D.Va. May 5, 2010). Further, we deny Hill’s motion for an en banc 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.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481203/ | 85435: Case View
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Disclaimer: The information and documents available here should not be relied upon as an official record of action.Only filed documents can be viewed. Some documents received in a case may not be available for viewing.Some documents originating from a lower court, including records and appendices, may not be available for viewing.For official records, please contact the Clerk of the Supreme Court of Nevada at (775) 684-1600.
Case Information: 85435
Short Caption:IN RE: DISCIPLINE OF ANDREW WASIELEWSKICourt:Supreme Court
Lower Court Case(s):NONEClassification:Bar Matter - SCR 111 - Petition
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
PetitionerState Bar of NevadaDaniel Mink Hooge
(State Bar of Nevada/Las Vegas)
Phillip J. Pattee
(State Bar of Nevada/Las Vegas)
RespondentAndrew Wasielewski
In Proper Person
+
Due Items
Due DateStatusDue ItemDue From
11/28/2022OpenRemittitur
Docket Entries
DateTypeDescriptionPending?Document
09/30/2022Filing FeeAppeal Filing fee waived. Bar Matter/Bar Discipline. (SC).
09/30/2022Petition/BarFiled Petition/Discipline SCR 111(4). (SC).22-30835
10/31/2022Order/Dispositional BarFiled Order of Temporary Suspension and Referral to Southern Nevada Disciplinary Board. "We temporarily suspend Andrew Wasielewski from the practice of law in Nevada and refer this matter to the Southern Nevada Disciplinary Board for proceedings before a hearing panel in which the sole issue to be determined is the extent of the discipline to be imposed." SNP22 - JH/LS/DH. (SC)22-33999
11/01/2022Notice/IncomingFiled Notice Wasielewski - Notice to the Courts Nos. 85435 and 85436. (SC)22-34203
Combined Case View | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481050/ | PER CURIAM:
Darren Arness Staton seeks to appeal the district court’s order granting his motion for reduction of sentence under 18 U.S.C. § 3582 (2006). At the time the district court entered its order, the defendant was required to file the notice of appeal within ten days after the entry of judgment.1 Fed. RApp. P. 4(b)(1)(A); see United States v. Alvarez, 210 F.3d 309, 310 (5th Cir.2000) (holding that § 3582 proceeding is criminal in nature and ten-day appeal period applies). With or without a motion, upon a showing of excusable neglect or good cause, the district court may grant an extension of up to thirty days to file a notice of appeal. Fed. RApp. P. 4(b)(4); United States v. Reyes, 759 F.2d 351, 353 (4th Cir.1985).
The district court entered its order denying the motion for reduction of sentence on November 24, 2009. The notice of appeal was filed, at the earliest, on March 12, 2010.2 Because Staton failed to file a timely notice of appeal or to obtain an extension of the appeal period, we dismiss the appeal as untimely filed. 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.
. On December 1, 2009, the ten-day appeal period became fourteen days. This change does not affect our analysis.
. This is the date Staton placed on his notice of appeal. See Fed. R.App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481052/ | PER CURIAM: *
The attorney appointed to represent Selene Velez-Garcia 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). Velez-Garcia 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/8481053/ | PER CURIAM: *
The Federal Public Defender appointed to represent Luis Rafael Zelaya-Hernandez 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). Zelaya-Hernandez 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/8481055/ | PER CURIAM: *
The Federal Public Defender appointed to represent Joel Viveros-Flores 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). Viveros-Flores 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/8481086/ | PER CURIAM: *
The Federal Public Defender appointed to represent Robert Charles Hopes 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). Hopes has not filed a response. Our independent review of the record and counsel’s brief discloses no non-frivolous 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/8481057/ | PER CURIAM: *
Andrew D. Kelly, federal prisoner # 11952-035, appeals the district court’s order granting his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) based on the amendments to the Guideline governing cocaine base. Although the district court reduced Kelly’s sentence from 151 months to 121 months, the bottom of the newly applicable guidelines range, Kelly argues that, pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court had the discretion to grant a greater reduction. He also avers in that regard that 28 U.S.C. § 994(u) does not grant the Sentencing Commission authority to bind the district court’s discretion in § 3582(c)(2) cases.
We review a district court’s decision whether to reduce a sentence under § 3582(c)(2) for an abuse of discretion, and its interpretation of the Sentencing Guidelines is reviewed de novo. United States v. Doublin, 572 F.3d 235, 237-39 (5th Cir.), cert, denied, — U.S.-, 130 S.Ct. 517, 175 L.Ed.2d 366 (2009). Booker is inapplicable to sentence reductions under § 3582(e)(2), and a district court may not reduce a sentence below the minimum provided in the amended guidelines range. Id. at 238; see also Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2691-94, 177 L.Ed.2d 271 (2010) (holding that Booker does not apply to § 3582(c)(2) proceedings). To the extent that Kelly complains that the district court did not provide reasons for its decision, the district court need not do so. See United States v. Evans, 587 F.3d 667, 674 (5th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 3462, 177 L.Ed.2d 1064 (2010). Accordingly, 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/8481058/ | PER CURIAM: *
Appealing the judgment in a criminal case, Johnny Clinton raises arguments *952that he concedes are foreclosed by United States v. Doublin, 572 F.3d 235, 236-39 (5th Cir.), cert. denied, — U.S.-, 130 S.Ct. 517, 175 L.Ed.2d 366 (2009), which rejected the argument that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), applies in 18 U.S.C. § 3582(c)(2) proceedings and held that a district court may not reduce a sentence below the minimum provided in the amended Guidelines. After Clinton filed his brief in this court, the Supreme Court held that Booker does not apply to § 3582(c)(2) proceedings. Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2692, 177 L.Ed.2d 271 (2010).
The Government’s motion for summary affirmance is GRANTED, its alternative motion for an extension of time to file a brief is DENIED, and 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 *952published 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/8481059/ | PER CURIAM: *
The Federal Public Defender appointed to represent Tracy Lomond Jackson 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). Jackson 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/8481060/ | PER CURIAM: *
Gabriel M. Smith, Texas prisoner # 1052786, proceeding pro se and in forma pauperis (IFP), appeals from the district court’s dismissal of his 42 U.S.C. § 1983 complaint as frivolous and for failure to state a claim upon which relief could be granted pursuant to 28 U.S.C. § 1915(e)(2)(B). In that complaint, Smith alleged that Texas Tech University, various prison officials, and certain medical personnel had violated his constitutional rights by failing to provide him with adequate medical care, by failing to order work restrictions for him, and by denying his administrative grievances. Smith has moved this court for appointment of counsel. We deny that motion. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir.1987).
On appeal, Smith argues that the district court’s dismissal of his lawsuit was improper because Texas Tech University was not entitled to Eleventh Amendment immunity, his claims dismissed as untimely were part of a continuing violation, and his allegations were sufficient to establish deliberate indifference by the defendants. This court has noted that Texas Tech University is a state institution that is cloaked with sovereign immunity under the Eleventh Amendment. United States v. Texas Tech University, 171 F.3d 279, 289 n. 14 (5th Cir.1999). Even if Smith’s assertion is correct that his claim regarding the delay of medical treatment for his wrist injury did not accrue until the date of his first surgery, that claim would nonetheless be barred by limitations. Moreover, none of his remaining claims show that the defendants exhibited deliberate indifference to his serious medical needs or otherwise violated his constitutional rights. See Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir.2006); Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir.2005). Accordingly, his claims were properly dismissed as frivolous and for failure to state a claim upon which relief could be granted.
The district court’s dismissal of Smith’s complaint counts as a strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Smith is warned that if he accumulates three strikes, he will not be allowed to bring a civil action or appeal a judgment IFP unless he is under imminent danger of serious physical injury. See § 1915(g).
The judgment of the district court is affirmed.
*954AFFIRMED; APPOINTMENT OF COUNSEL DENIED; SANCTION WARNING ISSUED.
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/8481062/ | PER CURIAM: *
Appealing the judgment in a criminal *955case, Murfery Lee Schilb presents an argument that he concedes is foreclosed by United States v. Whaley, 577 F.3d 254, 258-61 (5th Cir.2009), in which this court rejected constitutional challenges to the Sex Offender Registration and Notification Act.
The Government’s motion for summary affirmance is GRANTED, its alternative motion for an extension of time is DENIED, and 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 *955published 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/8481063/ | PER CURIAM: *
Belmin Rivas Portillo pleaded guilty of illegal reentry following removal and was sentenced to a 15-month term of imprisonment and to a one-year period of supervised release. Portillo now appeals his sentence, which was at the top of the range recommended by the Sentencing Guidelines.
The district court sentenced Portillo within a properly calculated guideline range, considered the factors enumerated in 18 U.S.C. § 3553(a), and adequately explained the reasons for its chosen sentence, so Portillo’s sentence enjoys a presumption of reasonableness. See, e.g., Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Caldwell, 448 F.3d 287, 290 (5th Cir.2006). Portillo can rebut that presumption only by making “a showing that the sentence does not account for a factor that should receive significant weight, [] gives significant weight to an irrelevant or improper factor, or [] represents a clear error of judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir.2009), cert, denied, — U.S.-, 130 S.Ct. 1930, 176 L.Ed.2d 397 (2010). Making such a showing is no easy feat: “It will be the rare sentence indeed that was required under the Guidelines before Booker but [is] forbidden afterward, when discretion has gone up rather than down.” United States v. Gamcir-Gonzalez, 469 F.3d 1109, 1110 (7th Cir.2006) (Easter-brook, J.).
*956Portillo first argues that the district court imposed his sentence in a manner that “contradicts Gall’s directive to treat each defendant as a unique individual, rather than a mathematical construct.” Nothing in the record supports Portillo’s contention that the district court treated him as a mathematical construct. Gall forbids a court of appeals from using a “rigid mathematical formula” to evaluate a non-Guidelines sentence, see 552 U.S. at 47, 128 S.Ct. 586 or requiring such a sentence to be “supported by a justification that is proportional to the extent of the difference between the advisory range and the sentence imposed,” id. at 45, 128 S.Ct. 586 (citation and internal quotation marks omitted). The district court did not calculate Portillo’s sentence in a manner that ran afoul of the Supreme Court’s teachings in Gall.
Portillo next contends that the district court erred in considering his close ties to the United States as an aggravating factor. However, it is not apparent that the district court regarded Portillo’s close ties to this country as an aggravating sentencing factor. The district court concluded that “a sentence at the higher of the Guidelines is appropriate essentially for the reasons stated by the government.” The government’s stated reasons were Portillo’s criminal history, demonstrated lack of respect for the law, and membership in a gang. The district court only discussed Portillo’s close ties to the United States in response to a suggestion from defense counsel that those ties weighed in favor of a lesser sentence. “While cultural assimilation may be considered as a mitigating factor, there is no requirement that a sentencing court must accord it dispositive weight.” United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir.) (per curiam) (internal citation omitted), cert, denied,-U.S. -, 129 S.Ct. 625, 172 L.Ed.2d 617 (2008). Because Portillo has failed to make a showing that the district court gave “significant weight to an irrelevant or improper factor,” see Cooks, 589 F.3d at 186 (emphasis added), his sentence 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/8481204/ | 84063: Case View
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22-33996: This document is currently unavailable. If you need a copy of this document, please contact Clerk's Office at (775)684-1600.
Disclaimer: The information and documents available here should not be relied upon as an official record of action.Only filed documents can be viewed. Some documents received in a case may not be available for viewing.Some documents originating from a lower court, including records and appendices, may not be available for viewing.For official records, please contact the Clerk of the Supreme Court of Nevada at (775) 684-1600.
Case Information: 84063
Short Caption:COLLINS (ZAON) VS. JUSTICE CT. (STATE)Court:Supreme Court
Lower Court Case(s):Clark Co. - Eighth Judicial District - 20CR041639, A838502Classification:Original Proceeding - Criminal - Mandamus/Prohibition
Disqualifications:Case Status:Rehearing Filed
Replacement:Panel Assigned:
Panel
To SP/Judge:SP Status:
Oral Argument:Oral Argument Location:
Submission Date:09/19/2022How Submitted:On Briefs
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Party Information
RoleParty NameRepresented By
PetitionerZaon CollinsDavid Z. Chesnoff
(Chesnoff & Schonfeld)
Richard A. Schonfeld
(Chesnoff & Schonfeld)
Real Party in InterestThe State of NevadaEric A. Bauman
(Clark County District Attorney)
Alexander G. Chen
(Clark County District Attorney)
Aaron D. Ford
(Attorney General/Carson City)
RespondentLas Vegas Township Justice Court
RespondentSuzan Baucum
Docket Entries
DateTypeDescriptionPending?Document
01/11/2022Filing FeePetition Filing Fee Waived. Criminal. (SC)
01/11/2022Petition/WritFiled Petition for Writ of Mandamus/Prohibition Regarding the Justice Court's Denial of the Motion to Dismiss Charges With Prejudice. (SC)22-01175
01/11/2022AppendixFiled Appendix to Petition for Writ - Volume 1. (SC)22-01176
01/11/2022AppendixFiled Appendix to Petition for Writ - Volume 2. (SC)22-01177
03/11/2022Order/ProceduralFiled Order/Answer Writ Petition. Real party in interest, on behalf of respondents, shall have 28 days from the date of this order to file and serve an answer, including authorities, against issuance of the requested writ. Petitioner shall have 14 days from service of the answer to file and serve any reply. (SC)22-07845
04/08/2022Petition/WritFiled State's Answer to Petition for Writ of Mandamus or Prohibition. (SC)22-11138
04/20/2022Petition/WritFiled Petitioner's Reply to Answer to Petition for Writ of Mandamus/Prohibition Regarding the Justice Court's Denial of the Motion to Dismiss Charges With Prejudice. (SC)22-12558
09/19/2022Order/ProceduralFiled Order Submitting for Decision Without Oral Argument. Cause appearing, oral argument will not be scheduled and this appeal shall stand submitted for decision to the Southern Nevada Panel as of the date of this order on the briefs filed herein. (SC)22-29376
09/27/2022MotionFiled Petitioner's Motion for Reconsideration of Order Submitting for Decision Without Oral Argument and Request for Oral Argument. (SC)22-30235
10/06/2022Order/ProceduralFiled Order Denying Motion. Petitioner has filed a motion for reconsideration of this court's decision to submit this petition for decision without oral argument. The motion is denied. (SC)22-31523
10/31/2022Order/DispositionalFiled Order Denying Petition for Writ of Mandamus or Prohibition. "ORDER the petition DENIED". SNP22 - JH/LS/DH. (SC)22-33996
11/02/2022Post-Judgment PetitionFiled Appellant's Petition for En Banc Reconsideration. (SC) (REJECTED PER 11/2/2022 NOTICE)
11/02/2022Notice/OutgoingIssued Notice of Rejection of Filed Document. (SC)22-34415
11/03/2022Post-Judgment PetitionFiled Petitioner's Petition for Rehearing. (SC)Y22-34588
11/03/2022Filing FeeFiling fee paid. E-Payment $150.00 from Richard A. Schonfeld
Combined Case View | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481064/ | PER CURIAM: *
The attorney appointed to represent Lidia Allen has moved for leave to withdraw *957and has filed a supplemental brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Allen 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/8481065/ | PER CURIAM: *
Miguel Angel Rodriguez-Rodriguez (Rodriguez) pleaded guilty to attempted unlawful reentry of an alien (count one) and making a false claim of citizenship (count two), in violation of 8 U.S.C. § 1326 and 18 U.S.C. § 911. The district court sentenced him to a 60-month term of imprisonment on count one, which was within the guidelines range of 57 to 71 months, and a concurrent term of 36 months (the statutory maximum) on count two. The court also revoked a term of supervised release from a prior case and imposed a 12-month consecutive sentence.
Rodriguez now appeals the 60-month sentence on count one, arguing that the lack of a fast-track disposition program in the Western District of Texas results in an unwarranted sentencing disparity, rendering his sentence unreasonable. As he concedes, his argument is foreclosed by our decision in United States v. Gomez-Herrera, 523 F.3d 554, 562-63 (5th Cir.2008), and he raises it only to preserve it for further review.
In this appeal, Rodriguez does not reurge any of the other challenges to his sentence that he made in the district court, nor does he challenge the supervised release revocation. Accordingly, he has abandoned those issues on appeal. See United States v. Luden, 61 F.3d 366, 370 (5th Cir.1995).
*958The 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/8481066/ | PER CURIAM: *
The attorney appointed to represent Ana Cornelia Martinez-Sanchez has *959moved 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). Martinez-Sanehez 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/8481067/ | PER CURIAM: *
The attorney appointed to represent Travis Daran Johnson 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). Johnson 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/8481068/ | PER CURIAM: *
The Federal Public Defender appointed to represent Luis Arturo Rodriguez-Martinez (Rodriguez) 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). Rodriguez 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/8481087/ | PER CURIAM: *
The attorney appointed to represent Genaro Marchan Mendoza 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). Mendoza 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/8481071/ | PER CURIAM: *
Leon Papillion, Jr., appeals his conviction after a jury trial for conspiracy to possess with intent to distribute controlled substances and attempt to possess with intent to distribute Methylenedioxy Amphetamine (Ecstasy). He challenges the sufficiency of the evidence. We AFFIRM.
Because Papillion preserved his sufficiency of the evidence argument in the district court, we review it de novo. See United States v. Williams, 602 F.3d 313, 315 (5th Cir.2010). “In deciding whether the evidence was sufficient, we review all evidence in the light most favorable to the *962verdict to determine whether a rational trier of fact could have found that the evidence established the essential elements of the offense beyond a reasonable doubt.” Id. (internal quotation marks and citation omitted).
To prove a conspiracy to distribute a controlled substance, the Government was required to establish: (1) the existence of an agreement between two or more persons to violate the narcotics laws; (2) the defendant’s knowledge of the agreement; and (3) the defendant’s voluntary participation in the conspiracy. See United States v. Valdez, 453 F.3d 252, 256-57 (5th Cir.2006). In order to prove attempt to possess Ecstasy with intent to distribute, the Government was required to prove that the defendant engaged in conduct constituting a substantial step toward completing the crime. United States v. Armendariz-Mata, 949 F.2d 151, 154 (5th Cir.1991).
The Government charged that Papillion and several others, organized and led by co-defendant Loveless Bell, conspired to possess various controlled substances and attempted to possess Ecstasy by participating in several home invasions of drug dealers. One such home invasion occurred on July 22, 2004, at the home of Jonathan Brown, a known drug dealer, and his girlfriend Allison Granger. Brown and Granger testified that several men wearing masks and gloves entered their home demanding the “stuff,” “drugs,” and “weed.” The victims were previously acquainted with Papillion, and Brown called out Papillion’s name during the robbery. An investigating officer testified that Brown said he recognized Papillion because of the muscles in the back of his neck and the pigment of the skin on Papillion’s hands. Granger testified that having seen the perpetrator’s movements and heard his voice that she believed it was Papillion. Although they initially told police that they could not identify the perpetrators, Brown and Granger later picked out Papillion from a photo array as one of the robbers and testified that they were sure Papillion was involved.
Another home invasion occurred on August 6, 2004, at the home of Derrick Mayeaux, who was Bell’s partner in dealing Ecstasy. Bell testified that he instructed Papillion and another individual to break into the home to “take everything.” The evidence suggested that Bell believed there was a large amount of cash and drugs in the home. Bell was present with Mayeaux’s girlfriend during the robbery and pretended to be a victim as Papillion robbed them. The girlfriend testified that the intruders entered looking for drugs and money but found none. Bell testified that although some money was taken from him, which he got back, the robbers did not find the drugs that he was hoping to get. In addition to this evidence, co-defendant Kendrick Boudreaux testified that he used to rob drug dealers along with Bell, that he met Papillion in jail, and that Papillion discussed his common activities with Bell. Papillion told Boudreaux that he intended to resume his activities when he was released from jail, and he gave Boudreaux contact information for Bell.
Papillion was acquitted on separate counts concerning the July 22 and August 6 robberies and argues that the Government therefore may not rely on evidence concerning those incidents in support of his conviction. Papillion is incorrect. Consistency in the verdict is not necessary. See United States v. Powell, 469 U.S. 57, 62-63, 105 S.Ct. 471, 475, 83 L.Ed.2d 461 (1984); see also United States v. Nguyen, 28 F.3d 477, 480 (5th Cir.1994) (“[A] not guilty verdict on one count does not establish any facts favorable to the defense for the purpose of determining the sufficiency of the evidence on the counts of conviction[.]”). We conclude that a rational jury *963could find from the evidence adduced at trial that Papillion was a member of the conspiracy and attempted to obtain drugs with the intent to distribute. Although there was some inconsistency between the trial testimony and witness statements to police, inconsistencies and credibility are the province of the jury. See United States v. Greenwood, 974 F.2d 1449, 1458 (5th Cir.1992).
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/8481072/ | PER CURIAM: *
The Federal Public Defender appointed to represent Victor Calbral Sevya (Calbral) 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). Calbral has not filed a response. He has recently been released from imprisonment and removed from the United States.
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 in part as frivolous, see 5th Cir. R. 42.2, and in part as moot, see United States v. Rosenbaum-Alanis, 483 F.3d 381, 383 (5th Cir.2007).
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/8481073/ | PER CURIAM: *
This is an appeal of the district court’s order remanding this case to state court after the Defendants-Appellants’ attempted removal. Because 28 U.S.C. § 1447(d) prohibits appellate review of this decision, we dismiss the appeal.
I.
In June 2009, Plaintiff-Appellee Virgil J. Meeks filed a petition in Texas state court alleging wrongful termination in retaliation for filing a workers compensation claim against his former employer, Defendants-Appellants Swift Transportation, Inc., Swift Transportation Co., Inc. and Swift Transportation Corp. (hereafter “Swift”). Swift timely removed the case, and Meeks filed a timely motion to remand, claiming that the case was not removable under 28 U.S.C. § 1445(c)1 because it arose under the workers compensation laws of the state in which it had been filed. Meeks sought remand pursuant to 28 U.S.C. § 1447(c). Section 1447(c) allows remand on the basis of lack of subject matter jurisdiction if raised at any time and allows remand on the basis of any defect other than lack of subject matter jurisdiction by a motion if filed within thirty days of the filing of the notice of removal.
The district court granted Meeks’s motion to remand after holding that Meeks’s case arose under Texas workers compensation laws. This appeal follows. Meeks v. Swift Transp. Inc., No. EP-09-CV-298KC, 2009 WL 4878629, at * 3 (W.D.Tex. Dec.ll, 2009).
II.
The threshold issue in this case is whether federal law permits us to review the district court’s remand order. 28 U.S.C. § 1447(d) states in pertinent part that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.”
As we explained in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), § 1447(d) must be read in pari materia with § 1447(c), so that only remands based on grounds specified in § 1447(c) are immune from review under § 1447(d). Id. at 345-46, 96 S.Ct. 584. As long as a district court’s remand is based on a timely raised defect in removal procedure or on lack of subject-matter jurisdiction — the grounds for remand recognized by § 1447(c) — a court of appeals lacks jurisdiction to entertain an appeal of the remand order under § 1447(d).
Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995). Section 1447(c) states in pertinent part that: “A motion to re*982mand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a).”
The district court in this case clearly held that Meeks’s suit arises under workers compensation law and that such actions are not removable under § 1445(c). A statutory restriction against removal like the one in § 1445(c) is a defect in removal procedure under § 1447(c).
We have consistently held that “‘when section 1447(c) speaks of any defect in removal procedure, it includes within its reach the bringing of an action not within the court’s removal jurisdiction but that could have been brought originally in that court.’ ” Hopkins [v. Dolphin Titan Intern., Inc.], 976 F.2d [924] at 926 [(5th Cir.1992) ] (quoting Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1544-45 (5th Cir.1991) (internal quotations omitted)).
Albarado v. S. Pac. Transp. Co., 199 F.3d 762, 765 (5th Cir.1999); Williams v. AC Spark Plugs Div. of Gen. Motors Corp., 985 F.2d 783, 786-88 (5th Cir.1993) (Removal of an action contrary to statutory restrictions against removal — including those provided by §§ 1445(a) and (c) — is a procedural defect subject to the requirements of § 1447(c)). Thus, based on this clear case law, this case was improperly removed, and under § 1447(d) this court has no jurisdiction to review the district court’s remand order. Albarado, 199 F.3d at 765. See also Certain Underwriters at Lloyd’s, London v. Warrantech Corp., 461 F.3d 568, 572 (5th Cir.2006).
Swift makes two arguments against this conclusion. First it relies on language in Schexnayder v. Entergy Louisiana, Inc., 394 F.3d 280, 283 (5th Cir.2004), that in turn relies on In re Excel Corp., 106 F.3d 1197 (5th Cir.1997). The language in Schexnayder suggests that a remand based on § 1445(c) is a non § 1447(c) ground for removal and thus reviewable on appeal. Schexnayder states:
Non § lW(c) grounds for which a district court might remand a case include those remands made for purely discretionary reasons, Giles v. NYLCare Health Plans, 172 F.3d 332, 336 (5th Cir.1999), abstention-based remands, Quackenbush [v. Allstate Ins. Co.], 517 U.S. [706] at 712, [116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) ] remands based on § 1367, Smith, 172 F.3d at 926 n. 5, remands based on § 1115(c), In re Excel Corp., 106 F.3d 1197, 1200 (5th Cir. 1997), and remands based on the district court’s discretionary powers under § 1441(c), Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100,103 (5th Cir.1996), among others.
394 F.3d at 283 (emphases added). In Albarado, however, this court responded to a similar argument by stating expressly that In re Excel should not be relied on in resolving this issue.
Thus, to the extent that our implicit holding in In re Excel can be read as inconsistent with our prior holdings in Johnson, Hopkins, and Williams, our earlier decisions control.... Thus, remand based upon § 1445(a)’s statutory restriction against removal is a procedural defect under § 1447(c), and the district court’s remand order based thereupon is not subject to appellate review.
Albarado, 199 F.3d at 766.
Swift also argues that this court may review the remand order to pierce Meeks’s pleadings to show that a claim has been fraudulently pled to prevent removal. This argument goes to the merits of the district court’s order, which is irrelevant in this circumstance.
Section 1447(d) precludes examination of the merits of the district court’s actions; we only must determine what the dis*983trict court perceived it was doing, as “no matter how erroneous,” a remand order based on a § 1447(c) ground precludes review on appeal.
Certain Underwriters, 461 F.3d at 573. See also Albarado, 199 F.3d at 766 (“Thermtron and our own precedent prevent us from reviewing a remand order entered pursuant to § 1447(c) whether erroneous or not”).
Swift lists several cases in support of its argument that this court reviews remand orders where the pleadings have been pierced to show that a claim has been fraudulently pled to prevent removal. However, each of those cases involved denials of remand orders. See La. ex. rel. Caldwell v. Allstate Ins. Co., 536 F.3d 418 (5th Cir.2008); Holmes v. Atl. Sounding, 437 F.3d 441 (5th Cir.2006). Section 1447(d) bars appellate review of remand orders. It does not bar review of denials of remand requests. The same applies to the Jones Act Cases cited by Swift. All involved denials of motions to remand.
Swift’s argument for jurisdiction under the collateral order doctrine is similarly without merit. Although the Supreme Court has held that a court of appeals may review a district court decision that includes both the dismissal of a party and the consequential remand for lack of diversity of citizenship, the Court has affirmed that the law does “not permit an appeal when there is no order separate from the unreviewable remand order.” Powerex Corp. v. Reliant Energy Seros., Inc., 551 U.S. 224, 236, 127 S.Ct. 2411, 168 L.Ed.2d 112 (2007) (emphasis in original). There is no order at issue in this case other than the remand order.
III.
Based on the foregoing, Fifth Circuit and Supreme Court precedent is clear that under § 1447(d) this court lacks jurisdiction to review the remand order in this case, issued under § 1447(c), to correct a procedural defect, specifically an attempted removal in violation of § 1445(c) of a case arising under a state workers compensation law. Accordingly, this case is DISMISSED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. 28 U.S.C. § 1445(c) provides: "A civil action in any State court arising under the workmen's compensation laws of such State may not be removed to any district court of the United States.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481075/ | PER CURIAM: *
The Federal Public Defender appointed to represent Juan Jose Perez-Coronel 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). Perez-Coronel 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/8481187/ | 83585: Case View
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22-34699: This document is currently unavailable. If you need a copy of this document, please contact Clerk's Office at (775)684-1600.
Disclaimer: The information and documents available here should not be relied upon as an official record of action.Only filed documents can be viewed. Some documents received in a case may not be available for viewing.Some documents originating from a lower court, including records and appendices, may not be available for viewing.For official records, please contact the Clerk of the Supreme Court of Nevada at (775) 684-1600.
Case Information: 83585
Short Caption:MCDONALD VS. MCDONALDCourt:Supreme Court
Lower Court Case(s):Clark Co. - Eighth Judicial District - D580191Classification:Civil Appeal - Family Law - Other
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
AppellantJohn Joseph McDonald
In Proper Person
RespondentAllison Lynn McDonaldEmily M. McFarling
(Former)
(McFarling Law Group)
Amy A. Porray
(Amy A. Porray, LLC)
Amber Robinson
(Robinson Law Group)
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Due Items
Due DateStatusDue ItemDue From
11/29/2022OpenRemittitur
Docket Entries
DateTypeDescriptionPending?Document
10/06/2021Filing FeeFiling Fee due for Appeal. (SC)
10/06/2021Notice of Appeal DocumentsFiled Notice of Appeal/Proper Person. Appeal docketed in the Supreme Court this day. (SC)21-28728
10/06/2021Notice/OutgoingIssued Notice to Pay Supreme Court Filing Fee. No action will be taken on this matter until filing fee is paid. Due Date: 10 days. (SC)21-28730
10/11/2021Notice of Appeal DocumentsFiled (SEALED) Confidential Civil Cover Sheet from District Court Clerk. (SC)
10/15/2021Filing FeeFiling Fee Paid. $250.00 from Emily Stevens. Check no. 5225. (SC)
10/18/2021Notice/OutgoingIssued Notice Regarding Deadlines. (SC)21-29846
10/21/2021Order/ProceduralFiled Order Directing Transmission of Record. Record on Appeal due: 30 days. (SC)21-30294
10/25/2021Record on Appeal DocumentsFiled Record on Appeal (D580191). Vol. 1. (SC)21-30673
10/25/2021Record on Appeal DocumentsFiled Record on Appeal (D580191). Vol. 2. (SC)21-30679
10/28/2021Record on Appeal DocumentsFiled Record on Appeal. (SEALED) pages 24-30, 153-162, 236-243, an 319-330. (SC)
11/19/2021OtherReturned Unfiled Document. Civil Proper Person Transcript Request Form and Docketing Statement, returned unfiled for being untimely.21-33363
12/03/2021MotionFiled Proper Person Appellant's Motion for Extension of Time for Transcript Request; Docketing Statement; and Informal Brief. (SC)21-34561
12/07/2021Order/ProceduralFiled Order Granting Motion. Appellant's motion for an extension of time to file the transcript request form and the docketing statement is granted. The clerk of this court shall file the transcript request form and docketing statement received on December 3, 2021. Appellant's request for an informal brief form for pro se parties is granted as follows. The clerk of this court shall mail appellant an informal brief form. Appellant's opening brief due: February 15, 2021. (SC)21-34821
12/07/2021Docketing StatementFiled Proper Person Appellant's Docketing Statement Civil. (SC)21-34828
12/07/2021Transcript RequestFiled Civil Proper Person Transcript Request Form. Transcripts requested: 4/29/21.21-34829
12/30/2021Notice/IncomingFiled Notice of Appearance. (SC)21-37271
01/07/2022Order/ProceduralFiled Order Regarding Pro Bono Counsel. The clerk of this court shall transmit a copy of this order and the attached case summary and district court order to the Legal Aid Center of Southern Nevada for financial eligibility screening. Appellant's Notice of Appearance or LACSN's Notice due: 60 days. The briefing schedule in this appeal shall be suspended pending further order of this court. Pursuant to the notice of appearance filed December 30, 2021, the clerk of this court shall add attorney Amy A. Porray and McFarling Law Group, to the docket as counsel for respondent. (SC)22-00764
01/28/2022Docketing StatementFiled Proper Person Docketing Statement. (Duplicate filing) (SC)22-02965
01/28/2022Transcript RequestFiled Civil Proper Person Transcript Request Form. Transcripts requested: 4/29/21. (Duplicate filing) (SC)22-02966
01/28/2022Notice/IncomingFiled Notice of Non-Payment for Transcripts. (SC)22-02967
03/07/2022MotionFiled Notice of Determination of Eligibility for Pro Bono Representation and Request for Extension of Time. (SC)22-07261
03/08/2022TranscriptFiled Notice from Court Reporter. Maria Balagtas stating that the requested transcripts were delivered. Dates of transcripts: 4/29/21. (SC)22-07428
03/11/2022Order/ProceduralFiled Order Granting Motion. The Legal Aid Center shall have until April 6, 2022, to locate pro bono counsel. Once counsel is located, the attorney shall immediately file a notice of appearance in this court. If a volunteer attorney cannot be located, the Legal Aid Center shall so notify this court in writing by April 6, 2022. (SC)22-07796
03/25/2022MotionFiled Appellant's Proper Person Motion to Stay Sale of residence Pending Appeal. (SC)22-09386
04/01/2022MotionFiled Respondent's Response to Motion to Stay Sale of Residence Pending Appeal. (SC)22-10241
04/06/2022MotionFiled Notice of Determination of Eligibility for Pro Bono Representation and Request for Extension of Time. (SC)22-10721
05/05/2022Order/ProceduralFiled Order Regarding Motions. The Legal Aid Center has filed a motion for a second extension of time to locate an attorney to represent appellant. The motion is granted. The Legal Aid Center shall have until May 6, 2022, to locate pro bono counsel. Notice of appearance due: May 6, 2022. This court defers ruling on appellant's pro se motion for a stay pending the appointment of pro bono counsel. (SC)22-14374
05/06/2022Notice/IncomingFiled Notice Regarding Pro Bono Counsel for Appellant. (SC)22-14603
05/24/2022Order/ProceduralFiled Order Reinstating Briefing and Denying Motion for Stay. This appeal will proceed with appellant acting pro se. Appellant: Transcript Request Form due: 14 days; Opening Brief or Informal Brief due: 90 days. Appellant has also moved for a stay of the judgment on appeal. This court denies the motion for stay. (SC)22-16441
07/12/2022Notice/IncomingFiled Respondent's Notice of Appearance or Emily McFarling. (SC)22-21951
08/02/2022Notice/IncomingFiled Respondent's Attorney's Notice of Change of Law Firm. (SC)22-24244
09/14/2022Notice/IncomingFiled Respondent's Notice of Withdrawal of Counsel. (SC)22-28820
09/19/2022Order/ProceduralFiled Order Approving Withdrawal of Counsel and to File Document. Attorney Emily McFarling has filed a notice of withdrawal as counsel for respondent. The notice is approved. The clerk of this court shall remove Emily McFarling and the McFarling Law Group as counsel for respondent. Appellant's opening brief due: 14 days. (SC)22-29385
10/25/2022OtherReturned Unfiled Informal Brief. (SC)22-33488
10/28/2022Notice/IncomingFiled Respondent's Attorney's Notice of Change of Law Firm for Amy A. Porray. (SC)22-33961
11/04/2022Order/DispositionalFiled Order Dismissing Appeal. To date, appellant has not filed the brief. Accordingly, this court "ORDERS this appeal DISMISSED." SNP-JH/LS/DH (SC)22-34699
Combined Case View | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481658/ | Robertson, J.
It is well settled law, in this state, that in a sale of personal chattels a full price does not import a warranty as to quality. The vendor is not liable for defects in quality unless he warrants, or makes some fraudulent representation, or, knowing of a latent defect, omits to disclose it.
It is unnecessary to enquire into the correctness of the position taken by the plaintiff’s counsel, that a recovery for a fraudulent representation may be had under the money counts, because there is no evidence in the case tending to show fraud. To constitute fraud the scienter is necessary. It is not sufficient to show that false representations were made by the vendor ; it must also be shown that, at the time he made them, he knew them to be false; or, at the least, that thejr were made as statements of facts within his own knowledge, when in truth he had no knowledge whatever upon the subject.
Here, there is no evidence that any latent defect, known to the vendor, was concealed by him ; or that he did not honestly believe that the representations he made were true. If therefore he can be held liable at all, it must be for a breach of warranty, or for a failure to comply with his contract.
To constitute a warranty, no particular form of ex*583pression is required; an apparent intention to warrant is sufficient. It is enough, if the words used import an engagement on the part of the vendor that the tide is what he represents it to be. Any distinct affirmation of quality made by the vendor, at the time of the sale, not as an expression of opinion or belief, but as an assurance to the purchaser of the truth of the fact affirmed, and an' inducement to him to make the purchase, is, if accordingly received, and relied on, and acted upon by the purchaser, an express warranty. But no affirmation, however strong, will constitute a warranty, unless it was so intended. If it is intended as a warranty, the vendor is liable, if it turns out to be false, however honest he may have been in making it: but if it is intended as an expression of opinion merely, or as simple praise or commendation of the article, he is not liable, unless it can be shown that he knew at the time that it was untrue. And in that case, it is inaccurate to say that he is liable for a breach of warranty. His liability arises from the fraud of which he was guilty, and should be enforced in an action on the case for deceit.
It is often very difficult to determine whether an affirmation was intended as a warranty, or as a mere expression of opinion. But in this case there is no such difficulty. It is clear that there was no intention to warrant. All that the defendant said and published amounted to no more than simple praise or commendation of the article. The plaintiff too seems not to have relied so much upon the representations of the defendant, as upon those made by Commodore Jones, and others who gave certificates.
But it is insisted that the defendant is liable upon an implied warranty.
If the plaintiff, relying on the defendant’s skill and judgment, had applied to him to furnish a manure which would produce such effects as are attributed to *584“ Chappell’s fertilizer,” without specifying what particular kind of manure he wanted, and the defendant had accordingly furnished an article, which, instead of producing such effects, proved to be entirely worthless, there would be good ground for the proposition that there was an implied warranty from which liability would arise.
If an order is given for an undescribed, unascertained thing, stated to be for a particular purpose, the vendor will be held liable, unless it answers, in a reasonable degree, the purpose for which it was purchased. But where a specific article is ordered and furnished, the law is well settled that, although the purchaser states the purpose to which he intends to apply it, there is no implied warranty on the part of the vendor that it is suitable for the purpose; and he will not, in the absence of fraud, or an express warranty, be held liable, however unfit and defective it may turn out to be. Chanter v. Hopkins, 4 Mees. & Welsb. 399; Olivant v. Bailey, 48 Eng. C. L. R. 287; Prideaux v. Bunnett, 87 Eng. C. L. R. 613.
In the case of Chanter v. Hopkins, Lord Abinger says, “A good deal of confusion has arisen in many cases on this subject, from the unfortunate use made of the word ‘ warranty.’ Two things have been confounded together. A warranty is an express or implied statement of something which the party undertakes shall be part of a contract; and though part of the contract, yet collateral to the express object of it. But in many of the cases, some of which have been referred to, the circumstance of a party selling a particular thing by its proper description, has been called a warranty, and a breach of such contract a breach of warranty; but it would be better to distinguish such cases as a non-compliance with a contract which a party has engaged to fulfill; as, if a man offers to buy peas of another, and he sends him beans, he does not per*585form his contract, but that is not a warranty : there is no warranty that he should sell him peas ; the contract is to sell peas, and if he sells him any thing else in their stead, it is a noh-performance of it. So if a man were to order copper for sheathing ships — that is, a particular copper prepared in a particular manner— if the seller sends him a different sort, in that case he does not comply with the contract: and though this may have been considered a warranty, and may have been ranged under the class of cases relating to warranties, yet it is not properly so. Now, in the present case the question is, whether or no the order has not been complied with in its terms.” 4 Mees. & Welsb. 404-5.
So in this case, the only proper enquiry is, has the plaintiff’s order been complied with according to its terms, by furnishing him with “ Chappell’s fertilizer”— a manure which was well known by that name.
There is no averment in the declaration that a different article from that ordered by the plaintiff was furnished. On the contrary, the allegation there is, that “ Chappell’s fertilizer” was bought and delivered, and that it was warranted by the defendant to be of good quality, and reasonably fit for the purposes of the plaintiff; and damages are claimed for a breach of that warranty. The testimony shows that the article called “ Chappell’s fertilizer” was delivered by the defendant to the plaintiff: and there is nothing in the record from which it can be inferred that the precise article known by that name was not furnished, except only the fact that the effects resulting from its use, have not been such as “ Chappell’s fertilizer” was represented to produce, and may perhaps have generally produced.
It is argued that this of itself is sufficient to show that a spurious article was furnished. That, as against the defendant, it must be taken as true that the article *586known by the name of “ Chappell’s fertilizer,” which the defendant professedly sold to the plaintiff, was really as valuable as it was said to be, and would, if it had been furnished genuine, have accomplished the results, or at least some of them, which it was said that it would accomplish; and that the article furnished under that name, having, upon a fair trial, failed to accomplish any of these results, was not genuine and unadulterated, but was, on the contrary, spurious, adulterated, or damaged to such an extent as to be not only not of reasonably good quality, but altogether worthless.
If this argument be sound, then the cases which have been cited, and all others of the same class, have been incorrectly decided; for it was as applicable in them, as it is in this case. But its unsoundness is manifest. To assume that an article is not genuine because it does not answer to the representations made respecting it, in effect converts mere representations into warranty, and destroys the rule that the vendor is not responsible for the truth of such representations, unless they are made fraudulently. To hold that the representation gives a right to infer, if the article does not come up to it, that it is spurious, adulterated, or damaged; and to make the vendor liable for not furnishing a genuine, unadulterated, undamaged article, is obviously the same thing in substance as to make him liable merely because the representation turns out to be untrue.
There is then no reason to doubt that the plaintiff got the identical article that he ordered; and that he occupies “ the position of a man who has had the misfortune to order a particular chattel, on the supposition that it will answer a particular purpose, but who finds that it will not.”
But it is insisted that if the plaintiff has no other right to recover, he can do so under the money counts, *587because of a total failure of the consideration for which he paid his money.
The answer is, that, if he can recover in any mode, upon sucli a failure of consideration as has been shown to exist in this case, it follows, that whenever an article is bought under the belief (however it may have been induced) on the part of the purchaser, that it is sound and of good quality, and it turns out to be in fact worthless, the rule that the vendor is not liable except for warranty, or for fraudulent representation or concealment, would be entirely abrogated; for, to avoid its effect, the purchaser would only have to declare as for a total failure of consideration.
I can find no ground upon which the plaintiff is entitled to relief, even conceding that upon the demurrer to evidence the court should infer that the article purchased by him was intrinsically and wholly worthless — a concession, the propriety of which may well be doubted; for it is by no means certain that this is such a reasonable inference from the testimony that the court ought to make it.
It seems to me to be clear that the judgment shouM be affirmed.
The other judges concurred in the opinion off Robertson, J.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481078/ | PER CURIAM: *
The Federal Public Defender appointed to represent Fabian Alexandro Rivera Gaucin 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). Rivera Gaucin 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 *13is 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/8481080/ | PER CURIAM: *
The attorney appointed to represent Brandon Christopher Johnson has moved *16for 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). Johnson has filed a response. Our independent review of the record, counsel’s brief, and Johnson’s response 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 *16the 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/8481082/ | PER CURIAM: *
The Federal Public Defender appointed to represent Carlos Torres-Saldivar 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). Torres-Saldivar 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/8481088/ | PER CURIAM: *
Armando Simental-Carrillo (Simental) appeals the sentence imposed following his conviction of unlawful reentry pursuant to 8 U.S.C. § 1326. Simental contends that the district court erred by imposing a 16-level crime of violence enhancement based on his prior Texas conviction of indecency by exposure with a child under 17 years of age, a violation of Texas Penal Code *25§ 21.11(a)(2). He argues that the Texas conviction is not within the enumerated offense of sexual abuse of a minor because an offense under § 21.11(a) can be committed against a victim who is 16 years of age. The Government moves for summary affir-mance or, in the alternative, for an extension of time to file a brief.
As Simental concedes, his argument is foreclosed by circuit precedent. See United States v. Ayala, 542 F.3d 494, 495 (5th Cir.2008); United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir.2000). Accordingly, the judgment of the district court is AFFIRMED and the Government’s motion for summary affirmance is GRANTED. The alternative request for an extension of time to file a brief is DENIED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *25published 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/8481089/ | PER CURIAM: *
Jose Santos Isidro-Acosta appeals his 41-month sentence following his conviction of unlawful reentry pursuant to 8 U.S.C. § 1326. Isidro-Acosta contends that the district court erred by imposing a 16-level crime of violence enhancement based on his prior Texas conviction of indecency by contact with a child under 17 years of age, a violation of Texas Penal Code § 21.11(a)(2). He argues that the Texas conviction is not within the enumerated offense of sexual abuse of a minor because an offense under § 21.11(a) can be committed against a victim who is 16 years of age. The Government moves for summary affirmance in lieu of filing a brief.
As Isidro-Acosta concedes, his argument is foreclosed by circuit precedent. See United States v. Ayala, 542 F.3d 494, 495 (5th Cir.2008); United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir.2000). 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.
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/8481090/ | PER CURIAM: *
Appealing the judgment in a criminal case, Jose Clemente Hernandez presents arguments that he concedes are foreclosed by United States v. Bishop, 603 F.3d 279, 281-82 (5th Cir.), cert. denied, — U.S. -, 131 S.Ct. 272, 178 L.Ed.2d 180 (2010), which held that the imposition of a condition of supervised release ordering Hernandez “to participate in a mental health program as deemed necessary and approved by the probation officer” did not constitute plain error. The appellant’s unopposed motion for summary disposition is GRANTED, and 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/8481092/ | ORDER
Nick Schaller, a Wisconsin prisoner, brought this civil-rights suit against his doctor, Dr. Glen Heinzl, for deliberate indifference. Schaller asserted that Heinzl failed to see him for close to four weeks after he first complained of problems relating to reconstructive surgery on his ankle two years earlier. The district court granted summary judgment for Heinzl and Schaller appealed.
In June 2008 Schaller submitted a health-services request explaining that the screws in his ankle were loose and that he could barely step on the ankle. The nurse who received the request noted on his medical record that when she called his unit officer to check on his condition, the officer reported that Schaller was walking without a limp. A nurse saw him within a week and apparently scheduled him two days later for a will-call appointment with Dr. Heinzl that later had to be cancelled (for reasons not explained in the record).
More than a week later, Schaller submitted a request complaining of “extreme pain.” Four days later a nurse responded to the request, telling Schaller that he had an appointment scheduled with Heinzl in five days and that he should contact the health-services unit if his symptoms worsened. She also forwarded the request to Heinzl, who said later that he did not recall whether he ever saw it. The same day Schaller submitted another request stating that he needed an x-ray and surgery (with no mention of pain), and the nurse reminded him that he was scheduled for a doctor’s appointment within the week. When Heinzl saw Schaller that week, he ordered an x-ray. The x-ray revealed no need for further procedures, but at Sehaller’s request Heinzl prescribed ibuprofen and advised him to take it as needed for pain. Heinzl noted on Schal-ler’s medical record, though, that Schaller had not been refilling a prescription he already had for naproxen, another nonster-oidal anti-inflammatory drug.
The district court granted summary judgment for Heinzl. The court assumed *112without deciding that Schaller’s condition was serious, but concluded that no jury could find Heinzl deliberately indifferent. The court explained that once the nurse forwarded the health requests to Heinzl, he might have been aware that Schaller was in some pain, but he had no reason to think that Schaller was not receiving proper treatment from the nurses or needed a prescription for pain medication. The court further concluded that a nine-day delay at that point did not amount to deliberate indifference because it was neither “blatantly inappropriate” nor “far afield of accepted professional standards.”
On appeal Schaller asserts that Heinzl was deliberately indifferent, but offers no argument on that point and instead devotes his brief to arguing the seriousness of his condition. The district court assumed for purposes of its analysis, however, that Schaller’s condition was serious. To prevail on an Eighth Amendment claim, a prisoner must establish not only that he had a serious medical condition but also that the doctor’s conduct amounted to deliberate indifference. Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir.2008); Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir.2006). Schaller’s failure to mount any argument regarding deliberate indifference would be reason alone to affirm. United States v. Alden, 527 F.3d 653, 664 (7th Cir.2008); Provident Sav. Bank v. Popovich, 71 F.3d 696, 699-700 (7th Cir.1995). But his appeal also fails on the merits. Although a delay in treatment can amount to deliberate indifference when the condition is sufficiently serious or painful, see Knight v. Wiseman, 590 F.3d 458, 466 (7th Cir,2009), Schaller has not met his burden of showing that Heinzl “ ‘ignored a known risk.’ ” Johnson v. Snyder, 444 F.3d 579, 585 (7th Cir.2006) (quoting Collignon v. Milwaukee County, 163 F.3d 982, 988 (7th Cir.1998)). A nine-day wait was not unreasonably long given that the pain related to a surgery two years earlier, that a nurse had seen Schaller two weeks earlier, and that Schaller had not refilled his prescription for an anti-inflammatory similar to the one Heinzl ultimately prescribed. See Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir.1997).
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481093/ | *113ORDER
After we reversed the judgment with instructions to resentence, 559 F.3d 643 (7th Cir.2009), the defendant was resen-tenced, and again appealed. His lawyer has filed an Anders brief and moved to dismiss the appeal as frivolous; he has responded
On remand the judge had imposed a below-guidelines sentence of 108 months, the practical equivalent of time served. The defendant has been released from custody and removed to India. His convictions, which are not at issue, render him inadmissible to the United States; he has served his prison sentence; and the amount he has been ordered to pay in restitution is uncollectable. Even if the appeal is not moot, it is entirely frivolous, as explained in great and lucid detail in the Anders brief filed by the federal defender.
The motion is granted and the appeal Dismissed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481094/ | ORDER
Gerardo Guzman-Martinez was removed to Mexico in late 2004 after a conviction for robbery. He promptly returned to the United States unlawfully and for the next three and a half years conspired with more than 20 others to produce counterfeit resident alien cards, social security cards, driver’s licenses, and state identification cards. The document fraud generated annually revenues exceeding $1 million. Guzman-Martinez solicited customers and sold these documents on street corners in the Little Village neighborhood of Chicago. He was charged in 2008 with conspiring to produce false identification documents and with being in the United States without authorization. See 18 U.S.C. §§ 371, 1028(a)(1), 1546(a); 8 U.S.C. § 1326(a). He pleaded guilty to both charges and was sentenced to a total of 76 months’ imprisonment and two years’ supervised release.
Guzman-Martinez filed a notice of appeal, but his appointed lawyer seeks to withdraw because he cannot identify a nonfrivolous ground for appeal. See An-*121ders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Guzman-Martinez has not accepted our invitation to respond to counsel’s motion. See Cir. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief. See United States v. Garcia, 580 F.3d 528, 543 (7th Cir.2009). Guzman-Martinez does not want his guilty pleas vacated, so counsel properly omits any discussion of the adequacy of the plea colloquy or the voluntariness of the pleas. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002).
Counsel has identified only one potential issue for appeal: whether Guzman-Martinez could challenge the reasonableness of his overall prison sentence. The total term of 76 months is within the properly calculated guidelines range of 70 to 87 months, and counsel is not aware of any basis to challenge the presumption of reasonableness applicable to a sentence within the guidelines range. See Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Pape, 601 F.3d 743, 746 (7th Cir.2010). The district court evaluated the sentencing factors in 18 U.S.C. § 3553(a) and the arguments offered in mitigation by Guzman-Martinez, including his difficult upbringing, his drug abuse, the hardship that a lengthy sentence would cause his family, the absence of a “fast track” program in the district, and his inferior position in the hierarchy of the conspiracy. But the court concluded that the seriousness of the offenses and his extensive criminal history outweighed these mitigating factors. See Pape, 601 F.3d at 749. We would not conclude that the court abused its discretion in making that assessment, and thus counsel is correct that any challenge to the reasonableness of the sentence 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/8481095/ | PER CURIAM.
Amarjeet Singh, also known as Rajin-der Singh, petitions for review of an order of the Board of Immigration Appeals (BIA) that affirmed an immigration judge’s denial of his motion to reopen removal proceedings. After careful review, we conclude that the BIA acted within its discretion. See Rodriguez-Cuate v. Gonzales, 444 F.3d 1015, 1018-19 (8th Cir.2006) (standard of review). Accordingly, we deny the petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481188/ | 85457: Case View
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Case Information: 85457
Short Caption:IN RE: LENK FAMILY TR.Court:Supreme Court
Lower Court Case(s):Nye Co. - Fifth Judicial District - PR21-0224AClassification: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:
+
Party Information
RoleParty NameRepresented By
AppellantDenise L. Pilkington
In Proper Person
AppellantRobert R. Pilkington
In Proper Person
RespondentCarin Lenk SloanAnthony L. Barney
(Anthony L. Barney, Ltd.)
Sean M. Tanko
(Law Office of Sean M. Tanko, Ltd.)
RespondentGinger StumneHarriet H. Roland
(Roland Law Firm)
RespondentHunter LiggettAnthony L. Barney
(Anthony L. Barney, Ltd.)
Sean M. Tanko
(Law Office of Sean M. Tanko, Ltd.)
RespondentJanet E. Lenk CohenAnthony L. Barney
(Anthony L. Barney, Ltd.)
Sean M. Tanko
(Law Office of Sean M. Tanko, Ltd.)
RespondentJill Rene StyndaAnthony L. Barney
(Anthony L. Barney, Ltd.)
Sean M. Tanko
(Law Office of Sean M. Tanko, Ltd.)
RespondentKristin Noel Lenk PfeiferAnthony L. Barney
(Anthony L. Barney, Ltd.)
Sean M. Tanko
(Law Office of Sean M. Tanko, Ltd.)
RespondentThe Lenk Family TrustAnthony L. Barney
(Anthony L. Barney, Ltd.)
Sean M. Tanko
(Law Office of Sean M. Tanko, Ltd.)
+
Due Items
Due DateStatusDue ItemDue From
11/29/2022OpenRemittitur
Docket Entries
DateTypeDescriptionPending?Document
10/06/2022Filing FeeFiling Fee due for Appeal. Filing fee will be forwarded by the District Court. (SC)
10/06/2022Notice of Appeal DocumentsFiled Notice of Appeal/Proper Person. Appeal docketed in the Supreme Court this day. (SC)22-31545
10/06/2022Notice/OutgoingIssued Notice Regarding Deadlines. (SC)22-31547
10/10/2022Order/ProceduralFiled Order Directing transmission of Record. Record due: 30 days. (SC)22-31883
10/12/2022Filing FeeFiling Fee Paid. $250.00 from Denise Pilkington. Cashier's Check no. 8599741. (SC)
10/14/2022MotionFiled Proper Person Emergency Motion for Stay. (SC)22-32388
10/18/2022Transcript RequestFiled Civil Proper Person Transcript Request Form. Transcripts requested: 8/24/21, 9/14/21, 7/12/22, 7/19/22, and 9/27/22. Court Reporter: Nye County Clerk of Court. (SC)22-32797
10/21/2022MotionFiled Respondents' Response to Emergency Motion for Stay under NRAP 27(e) and Countermotion to Dismiss Appeal. (SC)22-33215
10/25/2022Docketing StatementFiled Appellant's Civil Docketing Statement. (SC)22-33545
10/26/2022Transcript RequestFiled Civil Proper Person Transcript Request Form. Transcripts requested: 8/24/21, 9/14/21, 7/12/22, 7/19/22, and 9/27/22. Court Reporter: Nye County Clerk of Court. (SC)22-33679
10/26/2022Docketing StatementFiled Respondents' Response to Docketing Statement. (SC)22-33758
11/02/2022MotionFiled Appellants' Proper Person Reply to Respondents' Response to Emergency Motion to Stay Under NRAP 27(e) and Opposition to Countermotion to Dismiss Appeal. (SC)22-34340
11/03/2022MotionFiled Respondent's Reply to Opposition to Countermotion to Dismiss Appeal. (SC)22-34649
11/04/2022Order/DispositionalFiled Order Dismissing Appeal. We lack jurisdiction, we grant the countermotion and "ORDER this appeal DISMISSED." fn4 [ In light of this order, appellants' emergency motion for stay is denied as moot] SNP-JH/LS/DH. (SC)22-34693
Combined Case View | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481097/ | MEMORANDUM* **
Antonio Pamatz-Huerta appeals from the 77-month sentence imposed following his guilty-plea conviction for being an alien in the United States after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291. We affirm, but remand to correct the judgment.
Pamatz-Huerta contends that his sentence on the low-end of the advisory Guideline range is both substantively and procedurally unreasonable because it is calculated based on the 16-point crime of violence enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii), that he contends lacks justification, conflicts with the primary purpose of sentencing, and is excessively harsh. To the extent that Pamatz-Huerta challenges the validity of the crime of violence enhancement, his challenge is foreclosed. See United States v. Ramirez-Garcia, 269 F.3d 945, 947-48 (9th Cir.2001) (“Congress made abundantly clear when it amended the illegal reentry statute (8 U.S.C. § 1326(b)) that it wished to enhance the penalties for aliens with prior convictions in order to deter others.”).
Pamatz-Huerta also contends that the district court procedurally erred by ne*180glecting to meaningfully address his mitigating argument and by failing to explain why a lesser sentence would not have satisfied the parsimony principle. The record reflects that the district court considered the section 3553(a) factors, provided a reasoned explanation for the sentence, and did not otherwise procedurally err. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir.2008) (en banc); see also United States v. Diaz-Argueta, 564 F.3d 1047, 1051-52 (9th Cir.2009).
Pamatz-Huerta last contends that his sentence based on the 16-point crime of violence enhancement is substantively unreasonable because it violates the parsimony principle. The record reflects that the 77-month sentence is substantively reasonable in light of the totality of the circumstances and the section 3553(a) factors. See Gall v. United States, 552 U.S. 38, 51-52, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); cf. United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055-56 (9th Cir.2009).
In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000), we remand the case to the district court with instructions that it delete from the judgment the incorrect reference to section 1326(b). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to section 1326(b)).
AFFIRMED; REMANDED to correct the judgment.
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/8481098/ | MEMORANDUM **
Sergio Romero-Nunez appeals from the 46-month sentence imposed following his guilty-plea conviction for illegal re-entry after deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Romero-Nunez’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481099/ | MEMORANDUM **
Armando Marino-Nava appeals from his guilty-plea conviction and 86-month sentence for re-entry after deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Marino-Nava’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal. Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481100/ | MEMORANDUM **
Willie James Earl, Jr. appeals from his 68-month sentence for conspiracy to distribute marijuana, in violation of 21 U.S.C. § § 841(a)(1), 841(b)(1)(B), and 846. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Earl’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 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481189/ | 83734: Case View
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Case Information: 83734
Short Caption:ZEGER (QUINN) VS. STATECourt:Supreme Court
Lower Court Case(s):Clark Co. - Eighth Judicial District - C350592Classification:Criminal Appeal - Other - Direct
Disqualifications:Case Status:Disposition Filed
Replacement:Panel Assigned:
Panel
To SP/Judge:SP Status:
Oral Argument:Oral Argument Location:
Submission Date:10/13/2022How Submitted:On Briefs
+
Party Information
RoleParty NameRepresented By
AppellantQuinn Alexander ZegerJulian R. Gregory
(Special Public Defender)
Tegan C. Machnich
(Special Public Defender)
James J. Ruggeroli
(Special Public Defender)
Ashley L. Sisolak
(Special Public Defender)
Stephen Alexander Spelman
(Former)
(Special Public Defender)
JoNell Thomas
(Special Public Defender)
RespondentThe State of NevadaAlexander G. Chen
(Clark County District Attorney)
Aaron D. Ford
(Attorney General/Carson City)
Karen L. Mishler
(Clark County District Attorney)
+
Due Items
Due DateStatusDue ItemDue From
11/28/2022OpenRemittitur
Docket Entries
DateTypeDescriptionPending?Document
11/08/2021Filing FeeAppeal Filing Fee Waived. Criminal. (SC)
11/08/2021Notice of Appeal DocumentsFiled Notice of Appeal. Appeal docketed in the Supreme Court this day. (Docketing statement and Notice of Briefing Schedule mailed to counsel for appellant.) (SC)21-32025
11/10/2021Notice of Appeal DocumentsFiled Copy of District Court Minutes. (SC)21-32303
11/24/2021Docketing StatementFiled Appellant's Criminal Docketing Statement. (SC)21-33780
12/03/2021TranscriptFiled Notice from Court Reporter. Kristine Santi stating that the requested transcripts were delivered. Dates of transcripts: 12/30/20, 9/25/20, 11/20/20, 12/18/20, 2/5/21, 5/14/21, 6/29/21, and 7/6/21. (SC)21-34562
12/29/2021MotionFiled Motion for Extension of Time to File Transcripts. (SC)21-36986
01/04/2022Order/ProceduralFiled Order Granting Motion. Court reporter certificate due: January 24, 2022. (SC)22-00218
02/02/2022TranscriptFiled Notice from Court Reporter. Gina Villani stating that the requested transcripts were delivered. Dates of transcripts: 7/12/21, 7/13/21, 7/14/21, 7/15/21, 7/16/21, 7/19/21, 7/20/21, 7/21/21, 8/9/21, and 10/1/21. (SC)22-03517
03/01/2022Notice/IncomingFiled Appellant's Notice of Substitution from Stephen Alexander Spelman to Julian Gregory. (SC)22-06493
03/08/2022MotionFiled Appellant's Motion for Extension of Time to File Opening Brief and Appendix (First Request). (SC)22-07361
03/10/2022Order/ProceduralFiled Order Granting Motion. Appellant shall have until April 22, 2022, to file and serve the opening brief and appendix. (SC)22-07679
04/06/2022MotionFiled Appellant's Motion to Transmit Exhibits. (SC)22-10677
04/14/2022Order/ProceduralFiled Order Granting Motion to Transmit Exhibits. The clerk of the district court shall have 14 days from the date of this order to transmit original State's Exhibits 1, 2, 3, 33, and 34, and Court's Exhibits 26 and 35. (SC)22-11877
04/19/2022BriefFiled Appellant's Opening Brief. (SC)22-12400
04/19/2022AppendixFiled Appellant's Appendix to Opening Brief. Vol. 1. (SC)22-12401
04/19/2022AppendixFiled Appellant's Appendix to Opening Brief. Vol. 2. (SC)22-12402
04/19/2022AppendixFiled Appellant's Appendix to Opening Brief. Vol. 3. (SC)22-12404
04/19/2022AppendixFiled Appellant's Appendix to Opening Brief. Vol. 4. (SC)22-12405
04/19/2022AppendixFiled Appellant's Appendix to Opening Brief. Vol. 5. (SC)22-12407
04/19/2022AppendixFiled Appellant's Appendix to Opening Brief. Vol. 6. (SC)22-12408
04/19/2022AppendixFiled Appellant's Appendix to Opening Brief. Vol. 7. (SC)22-12410
04/19/2022AppendixFiled Appellant's Appendix to Opening Brief. Vol. 8. (SC)22-12411
04/19/2022AppendixFiled Appellant's Appendix to Opening Brief. Vol. 9. (SC)22-12412
04/19/2022AppendixFiled Appellant's Appendix to Opening Brief. Vol. 10. (SC)22-12414
04/19/2022AppendixFiled Appellant's Appendix to Opening Brief. Vol. 11. (SC)22-12415
04/19/2022AppendixFiled Appellant's Appendix to Opening Brief. Vol. 12. (SC)22-12419
05/19/2022Notice/IncomingFiled Respondent's Notice of Appearance for Karen L. Mishler. (SC)22-15864
05/19/2022BriefFiled Respondent's Answering Brief. (SC)22-15865
05/19/2022MotionFiled Respondent's Motion Requesting Transmittal of Exhibits Pursuant to NRAP 30(d). (SC)22-15867
05/20/2022Order/ProceduralFiled Order Denying Motion. Respondent has filed a motion for the transmission of "State's Exhibit 34" to the clerk of this court for this court's consideration in resolving the appeal. Appellant also moved for transmission of the same exhibit, and State's Exhibit 34 was received in this court on April 20, 2022. Accordingly, respondent's motion is denied as moot. (SC)22-16071
06/20/2022Order/Clerk'sFiled Order Granting Extension Per Telephonic Request. Appellant's reply brief due: July 5, 2022. (SC)22-19447
06/28/2022BriefFiled Appellant's Reply Brief. (SC)22-20368
06/28/2022Case Status UpdateBriefing Completed/To Screening. (SC)
10/13/2022Order/ProceduralFiled Order/Submit on Briefs. Cause appearing, oral argument will not be scheduled and this appeal shall stand submitted for decision to the Southern Nevada Panel as of the date of this order on the briefs filed herein. (SC)22-32338
11/03/2022Order/DispositionalFiled Order of Reversal and Remand. "ORDER the judgment of conviction REVERSED AND REMAND this matter to the district court." SNP22 - JH/LS/DH. (SC)22-34569
Combined Case View | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481194/ | 85404: Case View
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22-34621: This document is currently unavailable. If you need a copy of this document, please contact Clerk's Office at (775)684-1600.
Disclaimer: The information and documents available here should not be relied upon as an official record of action.Only filed documents can be viewed. Some documents received in a case may not be available for viewing.Some documents originating from a lower court, including records and appendices, may not be available for viewing.For official records, please contact the Clerk of the Supreme Court of Nevada at (775) 684-1600.
Case Information: 85404
Short Caption:IN RE: SINGER LIVING TRUSTCourt:Supreme Court
Related Case(s):85403
Lower Court Case(s):Clark Co. - Eighth Judicial District - P105009Classification: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)22-30075
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)22-30079
11/03/2022Order/DispositionalFiled Order Dismissing Appeal. To date, appellant has not paid the filing fee. Accordingly, "this appeal is dismissed." (SC)22-34621
Combined Case View | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481660/ | Moncure J.
This is a supersedeas obtained by thecommonwealth to a judgment of the Circuit court of Jackson county quashing an indictment against Henry Young, for that he, “ on the first day of October in the year one thousand eight hundred and fifty-eight, unlawfully, and without having a license therefor according to law, on the home farm of Charles Carney, in the said county of Jackson, and within the jurisdiction of the Circuit court for said county, did sell, by retail, wine, ardent spirits, and mixtures thereof, contrary to the form of the statute in such case made and provided-, and against the peace,” &c.
The indictment was no doubt intended to be for the offence described in the first branch of § 18, ch. 38 of the Code, p. 209; which section is in these words: “If any person shall, without paying such tax and obtaining such certificate as is prescribed by the 14th section, sell, by retail, wine, ardent spirits, or a mixture thereof, he shall forfeit thirty dollars. And if any person sell, by retail, wine, ardent spirits, or a mixture thereof, to be drank iti or at the store, or other place of sale, he shall, unless he be licensed to keep an ordinary at such store or place, forfeit thirty dollars.”
No counsel appeared for the defendant in error in this court; and it does not appear what specific objections' were made to the indictment in the court below, except from the petition for the supersedeas and the argument of the attorney general. From them it appears the objections were two-fold : First, that the words “ not to be drank where sold,” are not in the indictment; and secondly, that the words “without having a license therefor according to law,” are used *666in the indictment, instead of the words “ without paying such tax and obtaining such certificate as is prescribed by the 14th section,” contained in the statute.
To the first objection, it is a sufficient answer, that the words “ not to be drank where sold,” are not in the statute, and therefore need not be in the indictment.
The second objection is a more serious one. In an indictment for a statutory offence, it is generally proper and safest to describe the offence in the very terms used by the statute for that purpose. But it is sufficient to use in the indictment such terms of description, as that, if true, the accused must of necessity be guilty of the offence described in the statute; and especially so in a case, falling, as this does, in that class, concerning which the law provides, that “ no exception shall be allowed for any defect or want of form in the presentment, indictment or information, but the court shall give judgment thereon according to the very right of the case.” Code, ch. 207, § 24, p. 772. If the indictment may be true, and still the accused may not be guilty of that offence, the indictment is insufficient, even though it fall within the class to which the provision aforesaid refers. Let us apply this principle to the present case, and enquire, whether the words “ without having a license therefor according to law” in the indictment, are a sufficient substitute for the words “ without paying such tax and obtaining such certificate as is prescribed by the 14th section,” which are material terms of description used in the statute? In other words, whether, if the indictment be true, the accused must of necessity be guilty of the offence described in the statute ? May he not have retailed ardent spirits “ without having a license therefor according to law,” and still not “ without having paid such tax and obtained such certifi*667cate” as aforesaid ? To enable us to answer this question, it will be necessary to notice briefly the sections of chapter 3S of the Code which precede the 18th section (on which the indictment in this case is founded), and relate to the same subject.
The 10th section declares, that “no person shall, without obtaining a license as a merchant, sell at any store” &c. “ any goods” &c. “ except” &c. “Any person who shall violate this section, shall pay a fine of not less than twenty nor more than two hundred dollars.”
The 11th, 12th and 13th sections relate to the tax to be paid for the license.
The 14th section, which is expressly referred to in the first branch of the 18th (on which the indictment in this case is founded), is in these words: “If the merchant shall desire his license to include permission to sell, by retail, wine, ardent spirits, or a mixture thereof, he shall pay the additional tax prescribed for this privilege, and obtain from the court of the county or corporation in which his store or place of sale is situated, a certificate that he is a person of good character, and that the court sees no objection to such permission being granted.”
If this had been all, it might well have been contended, that upon the mere payment of the additional tax and obtaining the certificate mentioned in the 14th section, the merchant’s license (in addition to its general effect under the 10th section), became, ipso facto, a license to retail ardent spirits; and therefore that the words “without having a license therefor according to law,” in the indictment, were equivalent to the words “without paying such tax and obtaining such certificate” as aforesaid in the statute.
But the 15th section follows in these words: “ Such certificate shall be produced, with the receipt for the *668tax, to the commissioner, who shall grant to the merchant such license as he may be entitled to. The license shall, in addition to what is prescribed by the second section, state the fact of such certificate, and the situation of the store or place of sale. If the person applying for such license asks that it shall be to him as a commission merchant, the commissioner shall so express on its face.”
So that if a merchant desire his license to include permission to retail ardent spirits, he is not only required by the 14th section to pay the additional tax and obtain the certificate therein mentioned, but is directed by the 15th section to obtain a license which will include such permission on its face. If he comply with the requisition of the 14th section, he will be entitled as a matter of course to such a license, upon the mere production of such a certificate with the receipt for the tax to the commissioner, as directed by the 15th section. A penalty is imposed by the 18th section on a person who retails ardent spirits without having complied with the requisition of the 14th section ; but not on a person who does so without having complied with the direction of the 15th section. The indictment in this case is for the latter act; that is, for retailing ardent spirits “ without having a license therefor according to law.” This plainly refers to the license mentioned in the 15th section, which includes on its face permission to retail ardent spirits; and not to the general merchants’ license mentioned in the 10th section. The indictment may be true, and still the accused may not be guilty of the offence described in the statute, and therefore the motion to quash it was properly sustained.
The construction I have put upon the law in question, not only agrees with its literal meaning, but with the probable intention of the legislature. It would *669have been at least as easy to have said, “without license therefor,” as to say, “ without paying such tax and obtaining such certificate as is prescribed by the 14th sectionand the former would no doubt have been said, if it had been intended by the legislature. In every other instance, I believe, in which a license to do an act is required to be obtained, the law imposes a penalty on doing the act without license; not on doing it without faying the tax required to be paid. The difference of phraseology in this instance indicates a difference of intention; for which, indeed, there seems to be some reason. But whether there be or not, the literal import of the law is sufficiently plain; and, being a penal law, it must be construed strictly.
There are two decisions of the late General court, which would seem at first view to be in conflict with the conclusion to which I have come; but, upon examination, they will be found not to be so. I mean Peers' Case, 5 Gratt. 674, and Hatcher's Case, 6 Id. 667. In each of these cases the indictment was for retailing ardent spirits not to be drank where sold, without having obtained a license therefor; and yet was held to be sufficient. But they were founded on the act of March 7, 1834 (Sess. Acts, ch. 3, p. 7), or the act of March 3, 1840 (Sess. Acts, ch. 2, p. 5), which acts are almost identical; the 3d section of which subjects to the penalty therein mentioned, any person, &c. who shall, otherwise than as therein after expressly provided, retail ardent spirits, &e. 5 and the 5th section of which provides, that if any person, having obtained a merchant’s license, &c., shall, in addition thereto, have obtained a certificate as therein mentioned, he shall, “ by virtue of such certificate, but not otherwise, be authorized, during the time for which his merchant’s license may have been granted,” to retail ardent spirits, &c. In an indictment on either of these acts, the *670words “ without having obtained a license therefor,” were plainly equivalent to the words “ without having obtained a merchant’s license and certificate, as required by the 5th section.” The merchant’s license and certificate together constituted a license to retail ardent spirits. After the certificate was obtained, nothing more was directed by these acts to be done. In this respect, they materially differ from the Code.
I think there is no error in the judgment, and am for affirming it.
Daniel and Robertson, Js. concurred in the opinion of Moncure, J.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481101/ | MEMORANDUM **
Sergio Jimenez-Aguilera appeals from the 30-month sentence imposed following *271his guilty-plea conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Jimenez-Aguilera contends that the district court failed to consider properly his personal circumstances and that his sentence is substantively unreasonable. The district court did not procedurally err and Jimenez-Aguilera’s sentence is reasonable in light of the totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing factors. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Valencia-Barragan, 608 F.3d 1103, 1108-09 (9th Cir.2010).
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/8481102/ | ORDER **
Under Thompson v. Frank, 599 F.3d 1088, 1090 (9th Cir.2010) (per curiam), we lack appellate jurisdiction to review the *279district court’s stay-and-abeyance order. Accordingly, the appeal is DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481103/ | MEMORANDUM *
After two hearings, the bankruptcy court entered an order granting trustee P.J. Zimmerman’s motion to approve a compromise settling the bankruptcy estate’s legal claim to a residence. Debbera DiCostanzo appeals the district court’s af-firmance of the order of the bankruptcy court. We review a bankruptcy court’s order approving a motion to compromise for an abuse of discretion, In re A & C Properties, 784 F.2d 1377, 1380 (9th Cir.1986), and we affirm.
Contrary to DiCostanzo’s argument, the bankruptcy court applied the correct legal standard to the trustee’s motion to approve a compromise under Fed. R. Bankr.P. 9019(a). Although the bankruptcy court’s statements were general and conclusory, the record reveals the court applied A & C Properties’s four-factor test to determine the fairness, reasonableness, and adequacy of the proposed compromise. Under this test, the bankruptcy court’s approval of the compromise was not an abuse of discretion.
We also hold the bankruptcy court did not err by further treating the trustee’s motion to approve the compromise as a motion to approve the sale of an asset under 11 U.S.C. § 363. See In re Mickey Thompson Entm’t Group, Inc., 292 B.R. 415, 421-22 (9th Cir.2003). Additionally, the bankruptcy court complied with 11 U.S.C. § 363(i) by estimating the value of *309the compromise to the bankruptcy estate and by offering DiCostanzo the chance to purchase the bankruptcy estate’s claim to the residence at this price. Nevertheless, DiCostanzo argues the court erred by refusing to offer her an order 1) allowing her to use the residence as collateral for a loan to obtain the necessary funds to purchase the trustee’s legal claim; and 2) quieting title to the residence in her favor. We reject this argument because the bankruptcy court could not offer DiCostanzo the order she requested; the trustee was selling a legal claim to the residence and not the residence itself.
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/8481104/ | PER CURIAM:
Thomas Dale, appointed counsel for Corey Hinton, Jr., has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 *554L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeal is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Hinton’s conviction and sentence are AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481106/ | JUDGMENT
THIS CAUSE was submitted upon the application of the National Labor Relations Board for the enforcement of a certain order on consent issued by it against Respondent, United States Postal Service, its officers, agents, successors, and assigns, on June 10, 2010, in Board Case No. 5-CA-35161, and upon the record in that proceeding, certified and filed in this Court enforcing the order.
ON CONSIDERATION WHEREOF, it is ordered and adjudged by the United States Court of Appeals for the District of Columbia Circuit that the order of the National Labor Relations Board be, and the same is hereby enforced; and that the Respondent, United States Postal Service, its officers, agents, successors, and assigns, abide by and perform the directions of the Board set forth in its order. (See attached Order and Appendix)
ORDER
The Respondent, United States Postal Service, its officers, agents, successors and assigns, shall:
1. Cease and desist from:
(a) Informing employees they cannot request meetings with supervisors to initiate grievances.
(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which the National Labor Relations Board finds will effectuate the policies of the National Labor Relations Act, as amended:
(a) Within 14 days of service by the Region, post at its 4005 Wisconsin Avenue, N.W., Washington, D.C. facility copies of the attached notice marked “Appendix”. Copies of the notice, on forms provided by Region 5, after being signed by the Respondent’s authorized representative, shall be posted and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. The Respondent will take reasonable steps to ensure that the notices are not altered, defaced, or covered by any other material.
(b) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Appendix
NOTICE TO EMPLOYEES AND MEMBERS
Posted by Order of the National Labor Relations Board An Agency of the United States Government
Pursuant to a stipulation providing for a Board order and a consent judgment *592of any appropriate United States Court of Appeals.
Section 7 of the National Labor Relations Act gives employees these rights:
To organize;
To form, join, or assist any union;
To bargain collectively through representatives of their own choosing;
To act together for other mutual aid or protection;
To choose not to engage in any of these protected concerted activities.
In recognition of our employees’ rights:
WE WILL NOT inform employees they cannot request meetings with supervisors to initiate grievances.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL allow employees to request meetings with supervisors for the purpose of initiating grievances.
UNITED STATES POSTAL SERVICE
(Respondent)
Dated:
By _
(Name) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts secret ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by employers and unions.
To find out more about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website: www. nlrb.gov.
National Labor Relations Board, Region 5 103 South Gay Street, 8th Floor, Baltimore, MD 21202
Telephone: (410) 962-2822
Hours of Operation: 8:15 a.m. to 4:45 p.m.
Washington Resident Office 1099 14th Street, NW, Washington, DC 20570
Telephone: (202) 208-3000
Horn’s of Operation: 8:15 a.m. to 4:45 p.m.
Si quiere, se puede hablar en espaiiol con un agente de La Junta Nacional de Rela-ciones del Trabajo en confianza. La pagi-na electrónica de red de la Junta Nacional de Relaciones del Trabajo también tiene información en español: www.nlrb.gov.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board’s Office, National Labor Relations Board, Region 5, 103 South Gay Street, 8th Floor, Baltimore, MD 21202, Telephone Number 410/962-2811. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481107/ | JUDGMENT
PER CURIAM.
This case was considered on the record from the Federal Energy Regulatory Commission and on the briefs and arguments by counsel. It is
ORDERED that the petitions challenging the Federal Energy Regulatory Commission orders be denied.
Appellants challenge several orders of the Federal Energy Regulation Commission (“FERC”) approving tariff sheets for the Trans Atlantic Pipeline System (“TAPS”). We review FERC’s orders to determine whether they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (2006); BP West Coast Prod., LLC v. FERC, 374 F.3d 1263, 1282 (D.C.Cir.2004). They are not.
On July 3, 2006, the TAPS carriers filed tariff sheets, which FERC ultimately approved in the orders at issue here. See BP Pipelines (Alaska) Inc., 116 FERC ¶ 61,208 (Sept. 1, 2006) (accepting tariff sheets); BP Pipelines (Alaska) Inc., 118 FERC ¶ 61,056 (Jan. 26, 2007) (denying rehearing); BP Pipelines (Alaska) Inc., 124 FERC ¶ 61,153 (Aug. 8, 2008) (grant*594ing rehearing); BP Pipelines (Alaska) Inc., 127 FERC ¶ 61,089 (Apr. 14, 2009) (order on rehearing). The tariff sheets include a two-step provision accounting for escalating processing costs due to inflation for both Resid and Heavy Distillate cuts. Step one converts 1996 costs into year 2000 costs by multiplying 1996 processing costs by an inflation ratio, computed by dividing the published monthly cost indexes (known as “Nelson Farrar Indexes”) for 2000 by those for 1996.1 Step two then adjusts for inflation in each subsequent year. The inflation ratio for step two divides Nelson Farrar Indexes between August and September of the preceding year to project inflation in the year to come. For example, the inflation ratio for the year 2002 would contain Nelson Farrar Indexes from August, 2000 to September, 2001 in its numerator and Nelson Farrar Indexes from August, 1999 to September, 2000 in its denominator.
Appellants primarily argue FERC’s acceptance of the two-step inflation method is arbitrary and capricious because it counts inflation during the year 2000 twice. We are not persuaded. It is true both step one and step two use Nelson Farrar Indexes from the year 2000. The first step computes inflation through the year 2000 by dividing Nelson Farrar Indexes from 2000 by those from 1996. The second step then uses Nelson Farrar Indexes from January, 2000 to August, 2000 in computing inflation for the year 2001,2 and Nelson Farrar Indexes from September, 2000 to December, 2001 in computing inflation for the year 2002.3 The putative “double counting” is just two separate independent uses of the same data, not multiple charges for the cost of inflation.
In their brief, appellants objected to the use of a different method to calculate processing costs for Resid and Heavy Distillate from that used for Light Distillate. The differences in tariffs for Light Distillate under the two methods are insignificant because processing costs for Light Distillate are very low. 127 FERC ¶ 61,-039, at 15, 20. But even if it were the case that the discrepancy between the method used for Resid and Heavy Distillate and that used for Light Distillate were impermissible, the proper remedy would be to recalculate processing costs for Light Distillate using the method used to calculate Resid and Heavy Distillate. Appellants do not dispute that the latter more accurately reflects historical processing costs. Yet appellants abjure that remedy. See Oral Arg. Recording 4:24-4:58.
Appellants also argue that the second step of the inflation adjustment was never intended to forecast inflation; they further suggested in oral argument that FERC improperly shifted from a method based on nonpredictive use of historical data (i.e., using in any given year the processing costs of the prior year) to a *595predictive method (i.e., estimating the likely processing costs in any given year on the basis of prior data). See Oral Arg. Recording 8:07-8:54 (acknowledgment by petitioners’ counsel). Insofar as this argument was not waived, we are not persuaded that there is anything untoward in using inflation in the past year as a proxy for inflation in the present year. Because there is a lag between when processing costs are incurred and when inflation data for that exact time period becomes available, it is not possible for tariffs to incorporate current prices on a real-time basis. Under these circumstances, FERC’s use of a prior year’s inflation data as a proxy for current inflation is not arbitrary or capricious.
Pursuant to D.C. Circuit Rule 86, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41(a)(1).
.At the administrative proceeding stage, the parties presented competing data on processing cost adjustments. The data differed in terms of the year in which it stated the costs. In Order No. 481, FERC adopted processing cost adjustments presented in terms of 1996 dollars, but selected year 2000 as the appropriate base year. Trans Alaska Pipeline Sys., 113 FERC ¶ 61,062 (2005), order on reh'g, 114 FERC ¶ 61,323 (2006), order on reh'g, 115 FERC ¶ 61,287 (2006); see Petro Star Inc. v. FERC, 268 Fed.Appx. 7 (D.C.Cir.2008) (affirming Opinion No. 481).
. The inflation ratio for 2001 is computed by dividing the Nelson Farrar Indexes between September, 1999 and August, 2000 by those between September, 1998 and August, 1999.
. The inflation ratio for 2002 is computed by dividing the Nelson Farrar Indexes between September, 2000 and August, 2001 by those between September, 1999 and August, 2000. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481108/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief, appendix, and supplement filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 340')- It is
ORDERED AND ADJUDGED that the district court’s order filed August 20, 2010, be affirmed. The district court did not abuse its discretion in dismissing appellant’s case without prejudice on the ground the complaint did not meet the requirements of Fed.R.Civ.P. 8(a). See Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C.Cir.2004). That rule requires “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R.Civ.P. 8(a), in order to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation and internal quotation marks omitted).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481122/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tony C. Barrino 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. Barrino v. Treasmy of the United States, No. 3:10-cv-00171-RJC (W.D.N.C. filed Apr. 19, 2010 & entered Apr. 20, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the matei'ials 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/8481109/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
*597ORDERED AND ADJUDGED that the district court’s order filed May 14, 2010, be affirmed. The district court did not abuse its discretion in dismissing appellant’s case without prejudice on the ground the complaint did not meet the requirements of Fed.R.Civ.P. 8(a). See Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C.Cir.2004). That rule requires “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a), in order to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation and internal quotation marks omitted).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481110/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by appellant. See Fed. R.App. P. 84(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed June 15, 2010, be affirmed. The district court properly dismissed appellant’s complaint as frivolous. See, e.g., Neitzke v. Williams, 490 U.S. 319, 328, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. RApp. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481113/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief, appendix, and supplement to the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 340'). It is
ORDERED AND ADJUDGED that the district court’s order filed May 13, 2010, be affirmed. The district court properly dismissed appellant’s complaint for lack of jurisdiction, because the Veterans’ Benefits Act of 1957, as amended, precludes direct judicial review in Article III courts of VA decisions affecting the provision of benefits. See 38 U.S.C. § 511(a); Price v. United States, 228 F.3d 420 (D.C.Cir.2000). The exclusive procedure for challenging such decisions is an appeal to the Board of Veterans’ Appeals, from there to the United States Court of Appeals for Veterans Claims, and from there to the United States Court of Appeals for the Federal Circuit. See Price, 228 F.3d at 421.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481114/ | JUDGMENT
This appeal was considered on the record from the United States District Court for the District of Columbia and the briefs and oral arguments of the parties. For the reasons stated below, it is
ORDERED and ADJUDGED that the judgment of the District Court be affirmed.
Jerome Joseph and several co-conspirators kidnapped a five-year-old American schoolboy in Haiti and demanded ransom from the boy’s family. After his arrest, Joseph cooperated with investigators and pled guilty to hostage taking under 18 U.S.C. § 1203. Joseph was sentenced to 19 years and 11 months in prison (that is, a *600total of 239 months). Joseph’s presumptive advisory Guidelines range had been 292-365 months’ imprisonment. The District Court granted a three-level downward departure under U.S.S.G. § 5K1.1 for Joseph’s substantial assistance to investigators. This resulted in an advisory Guidelines range of 210-262 months’ imprisonment. The court sentenced Joseph within that range. On appeal, Joseph raises several challenges to his sentence. We find none to be persuasive.
Joseph argues that the District Court made a clearly erroneous factual finding at sentencing. But at the sentencing hearing, Joseph did not object to this finding of fact, and this argument is therefore subject to review only for plain error. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Because Joseph has failed to demonstrate that the district judge relied on this factual finding in determining the sentence, Joseph has not shown plain error. See United States v. Gomez, 431 F.3d 818, 822 (D.C.Cir.2005).
Joseph also argues that the District Court erred in awarding him only a three-level downward departure for substantial assistance when the court calculated the advisory Sentencing Guidelines range. See U.S.S.G. § 5K1.1. Joseph argued in the District Court that his assistance merited an even greater downward departure, but he did not base that argument on a comparison to his co-kidnappers’ downward departures (which were four levels) and did not object when the district judge explained the extent of the downward departure without reference to Joseph’s co-kidnappers’ downward departures. On appeal, however, Joseph argues that he should have received a greater downward departure because his co-kidnappers received downward departures of four levels. Because Joseph did not raise this argument in the District Court, we review it only for plain error. See Olano, 507 U.S. at 732, 113 S.Ct. 1770. The District Court’s failure to address Joseph’s co-kidnappers in considering Joseph’s argument for a greater Guidelines downward departure does not qualify as plain error, if it is even error at all. Joseph points to no section of the Sentencing Guidelines and no precedent to support his argument that a sentencing judge considering a downward departure under § 5K1.1 of the Guidelines must consider the departures granted to a defendant’s co-conspirators. To the extent Joseph renews any of the other arguments that he advanced in the district court for a greater downward departure, we find no reversible error. See In re Sealed Case, 449 F.3d 118, 125-26 (D.C.Cir.2006).
Finally, Joseph claims that his sentence of 19 years and 11 months in prison is substantively unreasonable under 18 U.S.C. § 3553 and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), particularly in relation to co-defendant Dorvilier’s sentence of 21 years and 2 months. We disagree. The parties debate whether 18 U.S.C. § 3553(a)(6) requires the district court at sentencing to consider the need to avoid an unwarranted disparity in co-defendant sentences or only an unwarranted disparity in nationwide sentences. We need not address that issue. Assuming § 3553(a)(6) required the District Court to consider co-defendant sentences, the court here satisfied that requirement. We recognize that the mere fact that Joseph’s sentence was less than Dorvilier’s does not itself render Joseph’s sentence substantively reasonable in terms of its relation to those of his co-defendants. The court explained that Dorvilier was more culpable, but went on to say that Joseph’s role was nonetheless significant because Joseph knew of the hostage-taking scheme, joined it, used a *601gun to violently kidnap the young victim, and was present when the kidnappers attempted to collect the second ransom payment. The District Court’s decision to give Joseph a sentence less than but close to Dorvilier’s sentence cannot be deemed unreasonable, assuming arguendo that it is a necessary comparison to make. In addition, in light of the overall circumstances of the offense and offender, we cannot say that Joseph’s sentence was otherwise substantively unreasonable. See United States v. Gardellini 545 F.3d 1089, 1092 (D.C.Cir.2008).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C. Cir. R. 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481123/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Geneva Maynard appeals the district court’s order denying relief on her civil complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Maynard v. City of Huntington, No. 3:09-cv-00101 (S.D. W Va. 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 in the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481116/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s orders filed May 17, 2010, and June 9, 2010, be affirmed. The district court correctly determined appellant failed to state a claim under the Freedom of Information Act, 5 U.S.C. § 552(a)(4)(B), or for mandamus relief, see Gulfstream Aerospace Corp. v. Mayaca-mas Corp., 485 U.S. 271, 289, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988). Moreover, the district court did not abuse its discretion in denying as futile appellant’s motion to amend the complaint. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. RApp. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481117/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and appendix filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed April 27, 2010, be affirmed. The district court properly dismissed for failure to state a claim under 28 U.S.C. § 1915A(b)(l) appellant’s complaint, which essentially sought mandamus relief in the form of an order compelling the Attorney General to investigate his allegations of prison abuse. Appellant does not have a clear and indisputable right to relief, see Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988), because the Executive Branch has absolute discretion to decide whether to conduct an investigation or prosecute a case. See United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); see also Powell v. Katzenbach, 359 F.2d 234 (D.C.Cir.1965) (the prosecutorial discretion of the Attorney General may not be controlled through mandamus).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481119/ | *778Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Billy G. Asemani, a federal prisoner, appeals the district 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. Asemani v. U.S. Bureau of Immigration & Customs Enforcement, No. 1:10-cv-01875-RDB (D.Md. Aug. 9, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481121/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Alan Berkowitz seeks to appeal the district court’s order denying in part and granting in part the United States’ motion to dismiss some, but not all, of the respondents in his petition to quash summonses issued by the Internal Revenue Service upon third-party record-keepers. 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 Berkowitz 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/8481190/ | 85183: Case View
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22-34647: This document is currently unavailable. If you need a copy of this document, please contact Clerk's Office at (775)684-1600.
Disclaimer: The information and documents available here should not be relied upon as an official record of action.Only filed documents can be viewed. Some documents received in a case may not be available for viewing.Some documents originating from a lower court, including records and appendices, may not be available for viewing.For official records, please contact the Clerk of the Supreme Court of Nevada at (775) 684-1600.
Case Information: 85183
Short Caption:SIMS VS. FARMERS GRP. INC.Court:Supreme Court
Lower Court Case(s):Douglas Co. - Ninth Judicial District - 2021-CV-00085Classification:Civil Appeal - General - Other
Disqualifications:Case Status:Disposition Filed
Replacement:Panel Assigned:
Panel
To SP/Judge:08/19/2022 / Wasick, DavidSP Status:Completed
Oral Argument:Oral Argument Location:
Submission Date:How Submitted:
+
Party Information
RoleParty NameRepresented By
AppellantLiza SimsJane LucianoWilliam D. McCann
(Law Offices of William D. McCann)
RespondentFarmers Group, Inc.James E. Cavanaugh
(Gordon Rees Scully Mansukhani LLP/Las Vegas)
RespondentGordon Rees Scully Mansukhani LLPJames E. Cavanaugh
(Gordon Rees Scully Mansukhani LLP/Las Vegas)
RespondentRobert E. SchumacherJames E. Cavanaugh
(Gordon Rees Scully Mansukhani LLP/Las Vegas)
RespondentSteven InouyeJames E. Cavanaugh
(Gordon Rees Scully Mansukhani LLP/Las Vegas)
+
Due Items
Due DateStatusDue ItemDue From
11/28/2022OpenRemittitur
Docket Entries
DateTypeDescriptionPending?Document
08/18/2022Filing FeeFiling Fee Paid. $250.00 from William C McCann. Check no. 1271. (SC)
08/18/2022Notice of Appeal DocumentsFiled Notice of Appeal. Appeal docketed in the Supreme Court this day. (Docketing statement mailed to counsel for appellant.) (SC)22-25864
08/18/2022Notice/OutgoingIssued Notice of Referral to Settlement Program. This appeal may be assigned to the settlement program. Timelines for requesting transcripts and filing briefs are stayed. (SC)22-25866
08/19/2022Settlement NoticeIssued Notice: Assignment to Settlement Program. Issued Assignment Notice to NRAP 16 Settlement Program. Settlement Judge: David Wasick. (SC)22-25959
08/30/2022Settlement Program ReportFiled ECAR/Not Appropriate for Settlement Program. This case is not appropriate for mediation. (SC)22-27140
08/31/2022Settlement Order/ProceduralFiled Order Removing From Settlement Program/Briefing Reinstated. This appeal is removed from the settlement program. Appellant(s): 14 days transcript request; 90 days opening brief. (SC)22-27345
09/08/2022Docketing StatementFiled Docketing Statement Civil Appeals (attachments). (SC)22-28171
09/08/2022Docketing StatementFiled Docketing Statement Civil Appeals. (REJECTED PER NOTICE ISSUED 9/8/22) (SC)
09/08/2022Notice/OutgoingIssued Notice of Rejection of Deficient Docketing Statement. Corrected docketing statement due: 5 days. (SC)22-28180
09/12/2022Docketing StatementFiled Docketing Statement Civil Appeals. (SC)22-28512
09/14/2022Order/ProceduralFiled Order to Show Cause. Appellants shall have 30 days from the date of this order within which to show cause why this appeal should not be dismissed for lack of jurisdiction. Respondents may file any reply within 14 days from the date that appellants' response is served. Briefing is suspended. (SC)22-28749
10/13/2022Order/Clerk'sFiled Order Granting Extension Per Telephonic Request. Appellants' response to order to show cause due: October 31, 2022. (SC)22-32357
10/31/2022MotionFiled Appellants' Response to Order to Show Cause. (SC)22-33973
11/03/2022Order/DispositionalFiled Order Dismissing Appeal. This court entered an order directing appellant to demonstrate why the appeal should not be dismissed for lack of jurisdiction. Appellant has responded and concedes that no order has finally resolved all claims by and between all parties. This court lacks jurisdiction, and therefore, "ORDERS this appeal DISMISSED." SNP-JH/LS/DH. (SC)22-34647
Combined Case View | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481191/ | 85417: Case View
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22-34534: This document is currently unavailable. If you need a copy of this document, please contact Clerk's Office at (775)684-1600.
Disclaimer: The information and documents available here should not be relied upon as an official record of action.Only filed documents can be viewed. Some documents received in a case may not be available for viewing.Some documents originating from a lower court, including records and appendices, may not be available for viewing.For official records, please contact the Clerk of the Supreme Court of Nevada at (775) 684-1600.
Case Information: 85417
Short Caption:SHAC, LLC VS. RUSSOCourt:Supreme Court
Related Case(s):82197, 82197-COA
Lower Court Case(s):Clark Co. - Eighth Judicial District - A812964Classification:Civil Appeal - General - Other
Disqualifications:Case Status:Disposition Filed/Case Closed
Replacement:Panel Assigned:
Panel
To SP/Judge:10/03/2022 / Trost, JanetSP Status:Completed
Oral Argument:Oral Argument Location:
Submission Date:How Submitted:
+
Party Information
RoleParty NameRepresented By
AppellantDavid Michael TallaDavid Z. Chesnoff
(Chesnoff & Schonfeld)
Richard A. Schonfeld
(Chesnoff & Schonfeld)
AppellantJohn LeeRaelene K. Palmer
(The Palmer Law Firm, P.C.)
AppellantPeter FeinsteinDavid Z. Chesnoff
(Chesnoff & Schonfeld)
Richard A. Schonfeld
(Chesnoff & Schonfeld)
AppellantSHAC, LLCDavid Z. Chesnoff
(Chesnoff & Schonfeld)
Richard A. Schonfeld
(Chesnoff & Schonfeld)
RespondentNadine RussoKimball J. Jones
(Bighorn Law/Las Vegas)
Docket Entries
DateTypeDescriptionPending?Document
09/28/2022Filing FeeFiling Fee Due. (SC)
09/28/2022Notice of Appeal DocumentsFiled Notice of Appeal. Appeal docketed in the Supreme Court this day. (SC)22-30452
09/28/2022Notice/OutgoingIssued Notice to Pay Supreme Court Filing Fee. No action will be taken on this matter until filing fee is paid. Due Date: 7 days. (SC)22-30454
09/29/2022Filing FeeFiling Fee Paid. $250.00 from David Z. Chesnoff, Chartered. Check no. 10085. (SC)
09/29/2022Notice/IncomingFiled Notice of Posting Bond for Costs on Appeal. (SC)22-30722
09/30/2022Notice/OutgoingIssued Notice of Referral to Settlement Program. This appeal may be assigned to the settlement program. Timelines for requesting transcripts and filing briefs are stayed. Docketing Statement mailed to counsel for appellants - due: 21 days. (SC)22-30852
10/03/2022Docketing StatementFiled Docketing Statement Civil Appeals. (SC)22-31061
10/03/2022Settlement NoticeIssued Notice: Assignment to Settlement Program. Issued Assignment Notice to NRAP 16 Settlement Program. Settlement Judge: Janet Trost. (SC)22-31078
10/06/2022Settlement Program ReportFiled ECAR/Appropriate for Settlement Program. This case is appropriate for mediation and a settlement conference is scheduled for October 21, 2022, at 1:00 PM. (SC)22-31569
10/23/2022Settlement Program ReportFiled Final Report/No Settlement. The parties were unable to agree to a settlement of this matter. (SC)22-33266
10/24/2022Settlement Order/ProceduralFiled Order: No Settlement/Briefing Reinstated. The parties were unable to agree to a settlement. Appellant(s): 14 days transcript request; 90 days opening brief and appendix. (SC)22-33405
11/01/2022MotionFiled Stipulation to Dismiss Appeal Pursuant to Settlement With Each Party to Bear Their Own Attorneys Fees and Costs. (SC)22-34164
11/03/2022Order/DispositionalFiled Order/Stipulated Dismissal. Order Dismissing Appeal. "This appeal is dismissed." The parties shall bear their own costs and attorney fees. Case Closed/No Remittitur Issued. (SC)22-34534
Combined Case View | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481124/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Freddie N. Raynor appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. On appeal, we confine our review to the issues raised in the Appellant’s brief. See 4th Cir. R. 34(b). Because Raynor’s informal brief does not challenge the basis for the district court’s disposition, Raynor has forfeited appellate review of the court’s order. Accordingly, we deny Raynor’s motion for a stay and for appointment of counsel, and we affirm the district court’s judgment. 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/8481125/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph M. Russell 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. Russell v. Virginia, No. 4:09-cv-00029-JBF-DEM (E.D.Va. March 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/8481127/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carolyn de Guzman appeals the district court’s order granting Defendant’s motion for summary judgment on her employment discrimination and retaliation claims. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Guzman v. NIH Fed. Credit Union, No. 8:08-cv-03213-PJM, 2010 WL 2802127 (D.Md. July 14, 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/8481128/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Percy Lee Clay and Diane Clay appeal the district court’s orders dismissing, for lack of subject matter jurisdiction, their action challenging their federal income tax liability, as well as their motions for reconsideration and recusal. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Clay v. Internal Rev. Serv., No. 1:08-cv-00681-WO-PTS, 2009 WL 3391577 (M.D.N.C. Aug. 19, 2009); 2010 WL 4489368 (Mar. 18, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481129/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Yueseyuan Cruel petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his 28 U.S.C.A. § 2255 (West Supp.2010) motion. He seeks an order from this court directing the district court to act. Although we find that mandamus relief is not warranted because the delay is not unreasonable, we deny the mandamus petition without prejudice to the filing of another mandamus petition if the district court does not act expeditiously. We grant leave to proceed in forma pauperis. We dispense with oral argument because the facts and legal contentions are adequately presented in the *794materials 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/8481130/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wendy Bens appeals the district court’s order denying his habeas corpus action brought pursuant to Fed.R.Civ.P. 17. We have reviewed the record and find no reversible error. Accordingly, we deny leave to proceed in forma pauperis and dismiss for the reasons stated by the district court. Bens v. United States, No. 1:09-cv-03050-WDQ (D.Md. Dec. 10, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481131/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brother Yhwh H. Monroe appeals the district court’s order dismissing his complaint pursuant to 28 U.S.C. § 1915(e). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Monroe v. Krippel, No. 5:10-cv-00065-sgw, 2010 WL 3200091 (WD.Va. Aug. 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/8481661/ | MONCURE, J-
The first question to be disposed of in this case is one of jurisdiction, which was raised in the argument before this court. It was not raised by any of the defendants in the court below by plea, answer, or otherwise, so far as the record shows; but On the contrary, the answers of the principal defendants, in effect, admitted the jurisdiction of the court. The only notice which seems to have been taken of the subject in that court is contained in the decree of the 22d day of February, 1853, in which an opinion is expressed by the court that it had jurisdiction of the case, upon the principles declared by the court of Appeals in the case of Ruffners v. Lewis’ ex’rs, 7 Leigh 720. If the defendants, Joseph and Thomas R. Eriend, are bound to account with the plaintiff and their other co-tenants in compion for rents and profits of the common property, while it was solely occupied and enjoyed by the Eriends, *as claimed by the bill, then, undoubtedly, a court of equity has jurisdiction of the case. It involves the settlement of an account of rents and profits in which, according to that supposition, the plaintiff and defendants have a common interest in different proportions, and some of the parties concerned are infants. I will, therefore, proceed to consider the case upon its merits.
The appellees, the Eriends, by their counsel, contend that they are not bound to account at all for such rents and profits to their co-tenants in common, at least to such of them as were adults when the property was occupied and enjoyed as aforesaid; and that, therefore, the bill ought to have been dismissed. They insist that, as tenants in common, they had a right to occupy and use any part, or all of the common property, without being accountable, in any form or to any extent, to their co-tenants, unless they contracted with them for such accountability, or ousted or excluded them from the possession, or unless they destroyed or wasted the common property; none of which they say, did they do.
This would certainly have been the case at common law. “If one joint-tenant, or tenant in common of land,” says Coke,” maketh his companion his bailiff of his part, he shall have an action of account against him, as hath been said. But, although one tenant in common, or joint tenant, without being made bailiff take the whole profits, no action of account lieth against him: for in an action of account, he must charge him either as a guardian, bailiff, or receiver, as hath been said before ; which he cannot do in this case, unless his companion constitute him his bailiff. And, therefore, all those books which affirm that an action of account lieth by one tenant in common or joint-tenant against another, must be intended, when the one maketh the other his bailiff, for otherwise, never his bailiff to render an account, is a good plea.” 1 Tho. Co. 787 marg. And in *a note by the editor, it is said: “At common law joint-tenants and tenants in common had no remedy against each other, where one alone received the whole profits of the estate, since he could not be charged as bailiff or receiver to his companion, unless he actuallv made him so.” Id. 788, note (E-) "
, „ But the statute 4 Anne c. 16, 27, was passed in England to remedy this defect of the common law. And a similar statute was passed in this country at an early period, and has ever since continued in force. In the Code, p. 586, ch. 145, $ 14, it is in these words: “An action of account may be maintained against the personal representative of any guardian, bailiff, or receiver, and also by one joint-tenant or tenant in common, or his personal representative, against the other as bailiff, for receiving more than comes to his just share or proportion, and against the personal representative of any such joint-tenant or tenant in common.”
But it is contended that this statute makes a joint-tenant or tenant in common liable to account to his co-tenants only where he receives money, or something else given or paid by another, which all the tenants are entitled to in proportion to their interests as such, of which one receives more than his just share, according to that proportion; and not where he merely has the sole occupation and enjoyment of the property, even though, by the employment of his own industry, skill and capital, he makes a profit by such occupation and enjoyment, and takes the whole profit to his own use: and that, therefore, the Eriends, not having received ’any rent from others for which they are accountable, but having only occupied and enjoyed the property as aforesaid, are not liable to account to their co-tenants for any profits which may have *27been made by such occupation and enjoyment, nor for any rent or other compensation whatever.
*In support of this position a very important case, decided in 1851 in the Exchequer chamber, Henderson v. Eason, 17 Ad. and El. N. S. 701, 79 Eng. C. L. R., is cited and much relied on by the counsel of the Friends; and it must be admitted that it fully sustains their position, and, if it were a binding authority, might be conclusive of this case. The question came fairly up for decision in that case. It was an action of account founded on the stat. 4 Anne c. 16, by Robert Eason against the executor of his co-tenant in common, Edward Eason. The pleadings were in proper form. On the trial of the issues, evidence was given that the two Easons were tenants in common of a farm from November, 1833, to November, 1838, during which time Edward Eason occupied the whole on his own account; that he cultivated the same on his own account solely, and appropriated the produce to his own use; that he cropped the farm in the usual way, kept the usual quantity of live and dead stock, and farmed well; and that he received all the produce of the farm, and sold it on his own account. Verdict was found for the plaintiff, and upon an account thereafter taken the sum of ¿900 was found to be due to him, for which judgment was accordingly rendered. The case was brought by error from the Queen’s Bench to the Exchequer chamber, where it was fully and ably argued. Parke, B., “in delivering the judgment of the court lays great stress on the word “receiving” in the statute. “Every case,” he says, “in which a tenant in common receives more than his share is within the statute; and account will lie when he does receive, but not otherwise.” ‘ ‘He is to account when he receives, not takes, more than comes to his just share.” What, then, is a “receiving” of more than conies to his just share, within the meaning of that provision of the statute of Anne? It appears to us that, construing the act according to the ordinary meaning of the words, *'this provision of the statute was meant to apply only to cases where the tenant in common receives money or something else, where another person gives or pays it, which the co-tenants are entitled to simply by reason of their being tenants in common, and in proportion to their interests as such, and of which one receives and keeps more than his just share according to that proportion. The statute therefore includes all cases in which one of two tenants in common of lands leased at a rent payable to both, or of a rent charge, or any money payment or payment in kind, due to them from another person, receives the whole or more than his proportionate share according to his interest in the subject of the tenancy. There is no difficulty in ascertaining the share of each, and determining -when one has received more than his just share; and he becomes, as to that excess, the bailiff of the other, and must account. But when we seek to extend the operation of the statute beyond the ordinary meaning of its words, and to apply it to cases in which one has enjoyed more of the benefit of the subject, or made more by its occupation, than the other, we have insuperable difficulties to encounter.” The learned Judge proceeds to enumerate these difficulties, and concludes by reversing the judgment of the Queen’s Bench. See 3 Rob. Prac. 173 (new ed.), where this case is fully stated, and other cases on the subject are referred to.
This decision certainly settles the construction of the statute in England. But it is somewhat remarkable that its construction had not there been settled long before. And it would seem that until that decision was made the current, or at least the preponderance, of judicial opinion in that country was the other way. That was the opinion of Vice Chancellor Wigram in McMahon v. Burchell, 3 Hare 97, 25 Eng. Ch. R. decided in 1843 ; though afterwards reversed by Ford Chancellor * Cottenham, 2 Phill. 127, 22 Eng. Ch. R., upon the ground that mere occupation by one of several tenants in common of an estate, if unaccompanied by the exclusion, does not make him liable for rent to his co-tenants, and that the nature of the occupation in that case did not amount to such exclusion. That was the opinion also of Vice Chancellor Shadwell in Henderson v. Eason, 15 Simons 303, 38 Eng. Ch. R., decided in 1846; though Ford Cottonham doubted, on appeal, whether the claim allowed by the V. C. could be maintained, and directed an action to be brought. 2 Phill. 22 Eng. Ch. R. 308. And that was also the opinion of the Court of Queen’s Bench in Eason v. Henderson, 12 Ad. & El. N. S., 64 Eng. C. L. R. 986, decided in 1848, on a case stated for the opinion of the court by order of a judge after issue joined in an action brought by direction of the Ford Chancellor as aforesaid. Ford Denman, C. J., in delivering the opinion of the court, said: “The case stated that he (the defendant) had occupied and received the whole profits, but no part was underlet; he received no rent, nor anything but the profits derived from the culture of the lands, to the expense of which the plaintiff in no way contributed. It was contended that the defendant was not liable as bailiff, because it appeared that he had not received rent, and because it did not appear that he had received more than his just proportion.— But we think that the words, ‘rents, issues and profits,’ include the proceeds of the land, whether in money or in kind; &c.” The Ford Chancellor, it appears, being dissatisfied with that proceeding for some cause, directed another action to be brought; which was accordingly brought, and was finally decided in the court of Exchequer Chamber as before mentioned.
If the decision of that court, instead of being made in 1851, had been made before the statute of 4 Anne C. 16, S. 27 was adopted by us, the construction which
*28that ^decision settles in England, would have been adopted by implication along with the statute. But as at the time of the adoption of the statute by us there had been no English decision construing it, we are left free to construe it according to its apparent meaning and the probable intention of the legislature, with, out being controlled by subsequent decisions in England or elsewhere, other than in our own State. Though certainly we .will always pay due respect to decisions out of our State, and none are entitled to more respect that those of the English courts, and especially the court of Exchequer Chamber.
What then is the meaning of the words in our statute, “for receiving more than comes to his just share or proportion”?
What did the legislature intend by the use of those words? Did they only intend to make a tenant in common accountable of his co-tenants for receiving from a stranger on account of rents and profits of the property more than the just share or proportion of such tenant? Or did they intend to make him accountable for receiving more than his just share or proportion of the rents and profits, whether paid by a stranger or derived from his own occupation and enjoyment of the property? I think they intended the latter. The former construction may be a reasonable one in England, where the ordinary mode of deriving profit from real estate is by renting it out; but not in this State, where real estate is generally occupied and used by the owner. With all deference to the court of Exchequer Chamber, I think the construction they put upon the word “receiving” is too technical and narrow, at least for our country; and if it be a just one in England, it is because of circumstances existing there which do not exist here. I do not see the force of the distinction drawn by that court between the words “receive” and “take” in this connection. I think the word “receiving” in the statute ^literally means a receiving of profits as well by use and occupation as by renting out the property. At all events there is, in substance, no difference between them, and the former is as much within the reason and the meaning of the law as the latter. If a tenant in common rent out the property and receive more than his just share of the rent, he is accountable for the excess to his co-tenants. Why should he not be alike accountable when, instead of renting out the property, he solely occupies and uses it, and thus receives more than his just share of the profits? Why should he be told: “If you rent out the property and receive the rent, you must share it out with your co-tenants. But if you solely occupy and use it and take all the profits, you will not be accountable to them?” Would he hesitate between these alternatives?
I think the same principle precisely applies to the two cases. And the only difficulty which exists is, in the application of the principle to one of the cases. That difficulty was much commented on by the court in the case decided by the Exchequer Chamber; and was one of the causes, if not the chief cause, of that decision. ■—In the case of rent received from a stranger, “there is no difficulty” the court said “in ascertaining the share of each and determining when one has received' more than his just share.” But in the case in which one has enjoyed more of the benefit of the subject, or made more by its. occupation than the other, “we have insuperable difficulties to encounter.” The court then proceeded to enumerate the difficulties.
I readity admit the existence of difficulty, but not that it is insuperable; certainly not in all cases. It consists in the fact, that the occupying tenant has rights as. well as his co-tenants, which two classes of rights must, if possible, be reconciled. The statute was not designed to take away or impair the rights of the occupying tenant, *but to require them to be so used as not to interfere with those of his'co-tenants. Each tenant has a right to occupy and use the common property, but not to the exclusion of his co-tenants. The occupation of one, does not necessarily exclude the occupation of the others.— They cannot, by remaining out, make the occupying tenant their bailiff against his will. He can be made their bailiff only by contract with them; or, under the statute, by receiving more than comes to his just share or proportion. It is often difficult to determine, when, by mere occupation and use of the property, he receives more than his just share. And it is still more difficult to lay down any general rule on the subject. This rule at least may be laid down, that whenever the nature of the property is such as not to admit of its use and occupation by several, and it is used and occupied by one only of the tenants in common, or wherever the property, though capable of use and occupation by several, is yet so used and occupied by one as in effect to exclude the others, he receives more than conies to his just share or proportion, in the meaning of the statute, and is accountable to the others.
This rule is of easy application to this case, and is I think sufficient for its solution. The salt property, of which the rents and profits are the subject of controversy here, if capable of use and occupation by several, which is at least extremelj’- doubtful, has certainly been so used and occupied by the Eriends as in effect to exclude their co-tenants therefrom. The Eriends have solely occupied and used it and derived all ,the benefit which they could have derived from it had they been the sole owners. And they so occupied and used it is plainly to indicate that they considered themselves, and must have been considered by the other parties concerned, as renters of the property and not as tenants in common merely. They actually held the dower interest *of Mrs. Cabell, being one undivided third of the property, *29and the interest of Mrs. Early, being one undivided fourth of the other two-thirds, under a lease for ten years, dated the 19th day of December, 1835. at a certain annual rent for each interest. These interests, with others which they owned, made them proprietors of almost the entire subject. After the determination of the lease they continued to occupy and use the property as before. Indeed, they never, until recently, denied their accountability to their co-tenants in some form or to some extent, for a participation in the rents and profits, but seem to have admitted their liability to Early and wife, or her trustee, for the same annual rent of her interest after she became of age as before, on the ground that they •continued to hold that interest under an implied contract, on the terms prescribed by the expired lease; and to the proprietors of the other outstanding interests for the yearly value thereof in the condition in which the property was when it came into the hands of the Friends. They only denied the right of their co-tenants to participate in issues and profits which may have arisen alone from their labor, skill and capital in the use of the property, without being accountable for the losses of the •operation.
The construction of the statute for which I contend ' is, I think, the same which has always been acted upon in this State. It was acted upon without question in the only case on this subject decided by this court; I mean Ruffners v. Lewis’ ex’rs, 7 Leigh 720; which was argued by counsel of great experience and ability. The question in that case was, not whether the defendants^were liable at all, but on what principle and to what extent. Carr, J., said: “The Ruffners must be treated as tenants in common with Prior, not as trespassers. They are liable for a fair share of the profits, and entitled to full compensation for their expenses fairly and ^reasonably incurred, as well those attending their abortive efforts to find water, as the.ir more fortunate ones. ’ ’ The opinion of Tucker, P., was to the same effect, and the other judges concurred therein.
The same construction has also been adopted and well established in South Carolina. In Thompson v. Bostick, 1 McMullan’s Equ. R. 75, before Chancellor Harper in 1830, the defendants, who were tenants in common with the plaintiffs of a tract of land, had taken possession of it and cultivated all the cleared land. They also cleared and cultivated another portion of the land, and made improvements; and the question was, whether and to what extent thy were chargeable? “I am of opinion,” said the chancellor, 1 ‘ that defendants ought to be charged with the rent of land estimated as it was when they took possession of it, and are not to be charged with the rent of the newly cleared land, or credited for improvements. There is nothing, I think, in the objection, that the defendants did not receive rent, but cultivated the lands themselves. To cultivate and have the use of lands, is to receive the rents and profits, though the occupier is his own tenant.” This decision, (at least as to the rents and profits of the cleared land, the other part of the decree not having been appealed from,) was afterwards affirmed on appeal. In Holt, &c., v. Robertson, Id. 475, before chancellor Desaussure, in 1831, and afterwards in the court of Appeals, the decision was to the same effect. And so also was it in Hancock, &c., v. Day, Id. 69, decided by the Court of Appeals in 1840.
The case of Sargent v. Parsons, 12 Mass. R. 149, decided in 1815, was cited and much relied on as being to the same effect with the decision of the Exchequer Chamber before referred to. But the action in that case was a common law action of account, and not an action upon the statute 4 Anne c. 16; and most of the remarks of Parker C. J., refer to the common law, and not the ^statute. The property in that case consisted of houses, lands and wharves, and though they were for a period in the sole possession and occupancy of the defendants, it does not appear that their occupation of the property was of such a nature as to exclude their co-tenants therefrom. In a note to that case, it is stated, “that it does not seem to be necessary that the defendant should have received profits otherwise than by his occupancy, in order to give a cause of action to the plaintiff upon the statute. It is sufficient if he have any way received more of the issues or profits than comes to his just share and proportion;” for which is cited Dane’s Ab. ch. 8, art. 3, l 13.
I, therefore, think the Friends are accountable for rents and profits to their co-tenants in common, and the question next to be considered is, in what manner and to what extent are they so accountable? Are they accountable for issues and profits actually made by the application of their labor, skill, and capital, to the property; or are they accountable for the fair yearly value of the property in the condition in which it was at the time it came to their possession?
I think the latter is the just and true measure of accountability, and one that is perfectly consistent with the statute. There is a very material difference between the nature of a liability of a bailiff at common law, and of a tenant in common who is a bailiff under the statute. The former is a fiduciary, bound to manage the estate to the best advantage and make all the profit he can for the owners, and to keep and render to them a full and fair account of his transactions; and he is liable, not only for rents and profits actually received, but also for such as might have been received without his default: while the latter is accountable only for rents and profits actually received, more than his just share and proportion. He is bailiff only by virtue of his receiving 'x'more than his just share, and in an action of account against him, it is an essential averment *30of the declaration that he has received more than his share. Wheeler v. Horne, Willes, P. 208; Sturton v. Richardson, 13 Mees, and Welsh. 17; 79 Eng. C. L. R. 718. He is not a fiduciary nor a trespasser, but has a right to occupy and use the property. When he rents it out and receives the rent there is no difficulty in ascertaining the amount for which he is accountable. When, instead of renting it out, he occupies and uses the whole to the exclusion of his co-tenants, and thus, in effect, becomes himself the renter, there is more difficulty; but it seems to me that the just and true rule is, to charge him with a reasonable rent for the use and occupation of the property in the condition in which it was when he received it, and to hold him accountable to his co-tenants for their just shares of such rent. This rule does justice to all parties concerned, and gives the same just measure of compensation to the co-tenants whether the property be rented out by one of them, or be occupied and used by him to the exclusion of the rest. It does not make the compensation in the latter case depend upon the accident of his being a- good or a bad manager, a prudent and cautious person, or a wild and reckless speculator.—It is just to the occupying tenant, who having occupied and used the property instead of renting it out, ought to be accountable to the same extent as if he had rented it out and received the rent. It is just to his co-tenants, who are entitled to a share of the rent of the property, but not of the issues and profits of his labor, skill and capital applied to its use. They do not share in the risk and ought not to share in the profit of the operation.
The rule is not inconsistent with any authority that I have seen. In Ruffners v. Eewis’s ex’ors, supra, an account was taken of rents, profits, &c. ,but no question was raised in that case as to the correct mode of adjustment, *and the one adopted may have been more favorable to the occupying tenant, than to have charged him with a rent; especially as he was allowed by the express terms of the decree, not only for permanent improvements, and for his expense and actual services in his successful operations, but also for his expenses, labor and services in the course of his unsuccessful experiments. In Thompson v. Bostick, supra, the rule in question was adopted. “If the whole estate,” said Chancellor Harper, “were let to tenants, and certain rents reserved, as is commonly the case in England, there would be little difficulty. But what rule shall be adopted when one tenant in common has occupied part of the premises himself? I know of no other than to estimate the rent of the whole premises, and then to value the rent of that portion of the premises occupied by the tenant in possession, with reference to the condition they were in at the time he took possession.” 1 McMullen’s Equ. R. 77.
There may be peculiar circumstances in a case making it proper to resort to an account of issues, profits, &c., as a mode of adjustment between the tenants in common ; and that was perhaps the case in Ruffners v. Eewis’s ex’ors; but such cases would merely be exceptions to the rule I have laid down which, I think, is properly applicable to most, if not all cases.
It applies, I think, with peculiar propriety to this case; in which the occupying tenants, the Eriends, had themselves a large interest in the subject as tenants in common, and were lessees (or one of them at least a lessee) of other large interests therein of other tenants in common, and embarked and were for many years engaged in a most hazardous operation upon the property, requiring, for its successful result, the expenditure of a vast amount of labor and of capital, and the exercise of the greatest skill and prudence. During all this period the ^proprietors of the outstanding interests stood aloof, and did not offer to join in the adventure, to contribute to the means of its prosecution, to run the risk of its failure, and take the chance of its successful issue. They cannot now come forward and say, the operation has been successful and they are entitled to a share of the profits. The most they are entitled to is their share of a reasonable rent. The Eriends are accountable for that. Being themselves proprietors of some, and lessees of other interests in the subject, and occupying and using the whole, of it, it is just and right, and what they must have expected and intended, that they should pay .a reasonable rent for the outstanding interests. But upon no principle of justice are they bound to account for issues and profits. Hor could such an account now be settled so as even to approach a correct result. It is no easy matter to keep an account of transactions so extensive, and running through so long a series of years, and be prepared with proper vouchers for a settlement—and the Eriends were under no obligation to do so. Then they aíre accountable only for a reasonable rent and the next question is, How is the amount of such rent to be ascertained?
In regard to the appellants, I think there can be no difficulty. Mrs. Early’s interest of one-fourth of two-thirds of the property, was leased by her guardian to Thomas R. Eriend, at an annual rent of three hundred dollars, for a term of ten years, subject to be determined, after her arrival at age or marriage, at the election of her or her husband. She arrived at age in 1843, and married in 1846, but, as it is averred in the answer of Joseph Eriend and not disproved nor denied, neither she nor her husband haé “ever expressed any wish to change the terms of respondent, holding under the lease aforesaid, and hence he has always hitherto regarded himself as holding and occupying under the original *rent reserved.” The lease commenced December 25, 1836, and of course expired, if not determined before by election as aforesid, December 25, 1846. There was no such election to determine it *31before, and therefore, by its terms, it continued in force until the last mentioned day. And Joseph Eriend having after that day continued to hold and use the property as before, without any objection on the part of Early and wife or her trustee, he might be considered holding, on the terms of the previous lease; according to the authorities cited by his counsel, to wit: 2 Rob. Prac. 378-9(new ed.) ; Hyatt v. Griffiths, 79 Eng. C. L. R. 505; Humphreys v. Franks, 36 Eng. L. & E. 429. In McKay v. Mumford, 10 Wend. R. 351, it was held that the presumption of law, that a tenant who holds over after the expiration of his lease continues to hold under the landlord and on the terms of the lease, does not apply to a tenant in common who leases the undivided interest of his co-tenant. “The fact of his not leaving possession,” said the court, “does not authorize the inference that he still intends to hold under the lease ; on the contrary the presumption is, that he holds under his own title, which gives him a right to the possession and enjoyment of the whole estate, liable however to account to his co-tenants at law, 1 R. S. 90, or in equity 8 Cow. R. 304. This presumption of possession by virtue of his own title may undoubtedly be rebutted, and then he would hold, as to the moiety of his co-tenant, as any other tenant and subject to the the same rules of law.” If there be any such presumption it is rebutted in this case by the express admission of Joseph Eriend that after the expiration of the lease “he always regarded himself as holding and occupying under the original rent reserved.” I therefore think that the rent for the interest of Mr. Early during the whole period of the use and occupation of the property by the Eriends ought to be at the rate paid by the lease.
*In regard to the proprietors of the other outstanding interests, there may be more difficulty. But I think it ought to be presumed, as to them, that the rent agreed to be paid to Mrs. Early, that is three hundred dollars, was a fair and reasonable rent for her interest of one-fourth of two-thirds; which would make the annual rent of the whole property, while in the use and occupation of the Eriends, eighteen hundred dollars; and that they ought to be charged with rent at that rate, unless it be proved that a reasonable rent would be more; in which case they ought to be charged with such reasonable rent. I think the Friends ought to pay at least the same rate of rent for the other outstanding interests as for that of Mrs. Early. They derived the same benefit, in proportion, from those interests as from hers; and the fact that they made no contract for the use of the former, is certainly no reason for paying less rent for them than for the latter. They must have expected and intended to pay the same rate of rent to all the other parties interested in the property with themselves as they agreed to pay for the interest of Mrs. Early, except the dower interest for which an annual rent of five hundred dollars was agreed to be paid.— Why less rent in proportion was agreed to be paid for the dower interest than for that of Mrs. Early, does not appear. It may have been because the former interest was determinable at any time by the death of the dowress, while the latter was more permanent. At all events I think the agreed rent of the latter is a fairer criterion than that of the former for the ascertainment of the amount of rent to be paid for the other outstanding interests. I think the proprietors of those interests having made no contract with the Eriends or either of them, oug-ht to have the liberty of showing if they can, especially as most of them were infants during the use and occupation of the property by the Eriends, that it was ^reasonably worth more rent in proportion than what was agreed to be paid for the interest of Mrs. Early.
The Eriends being accountable to their co-tenants for a reasonable rent of the property, and not for the issues and profits“of their operations thereon, ought to pay interest on the rent of each year from the end of such year until payment.
Upon the whole I think that so much of the decrees of the Circuit court as is in conflict with the foregoing opinion is erroneous and ought to be reversed, with costs to the appellees, the Friends, as the parties substantially prevailing, and the cause remanded to the Circuit court, to be proceeded into a final decree according to the principles above declared.
The other judges concurred in the opinion of MONCURE, J.
Decree reversed in favor of the appellees. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481132/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William A. Taccino and Marlene M. Tac-cino appeal the district court’s order granting summary judgment to Defendants in this civil action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Taccino v. Homeq Serv., No. 3:08-cv-00185-JPB (N.D.W.Va. Feb. 18, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481133/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clarence Sheldon Jupiter appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion for reduction of sentence based on Amendments 505 and 706 to the U.S. Sentencing Guidelines Manual. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Jupiter, No. 5:93-cr-00004-sgw-1 (W.D.Va. Aug. 21, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481134/ | *816Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Eric Hughes appeals the district court’s order denying his motion for reconsideration of an order denying Hughes’ motion to correct his presentence report. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Hughes, No. 3:00-cr-00004-JRS-2 (E.D.Va. Aug. 31, 2009). We deny Hughes’ motion to supplement the appellate brief 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/8481135/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Howard Robinson, Jr., appeals the district court’s order denying relief without prejudice 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. Robinson v. Virginia Parole Bd., No. 2:10-cv-00140-MSD-FB S (E.D. Va. April 7, 2010). We deny all of Robinson’s pending motions 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/8481136/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Oxendine appeals the district court’s order denying his motion to compel the Government to file a motion pursuant to Fed.R.Crim.P. 35(b). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Oxendine, No. 4:04-cr-00811-*820TLW-5 (D.S.C. May 26, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481137/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Unula Abebe, a state prisoner, appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing 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. Abebe v. Richland Cnty., No. 0:09-cv-02469-MBS, 2010 WL 2431062 (D.S.C. June 14, 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/8481138/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Thomas Ross appeals the district court’s order denying his motion filed pursuant to Fed.R.Civ.P. 60(b). We have reviewed the record and find no reversible error. Accordingly, we affirm. United States v. Ross, No. 2:06-cr00056-RBS-FBS-1 (E.D. Va. June 22, 2010); see United States v. Goodwyn, 596 F.3d 233 (4th Cir.2010) (holding district court lacked authority to grant defendant’s motion to reconsider seeking further reduction of his sentence). 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/8481139/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Tim Florence appeals the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find the district court did not abuse its discretion in the denying the motion. United States v. Stewart, 595 F.3d 197, 200 (4th Cir.2010). Accordingly, we affirm for the reasons stated by the district court. United States v. Florence, No. 1:04-cr-00497-JAB-1 (M.D.N.C. July 12, 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/8481662/ | ROBFRTSON, J.
The first assignment of error is for the refusal of the Court to give the following instruction, viz:
“If the jury shall believe from the evidence, that the patent dated the 6th day of May, 1787, from the Commonwealth of Virginia to Joseph Cole, for 259 acres, under which the plaintiffs claim, was issued after the death of Joseph Cole, the grantee named therein, then said patent is void, and the jury must find for the defendant; unless they believe from the other evidence that the plaintiffs have right to the land in controversy.”
On behalf of the defendants in error it is insisted, that the bill of exceptions is too imperfect to enable this court to say that the instruction ought to have been given, even if it shall be of opinion that the proposition of law stated in it is correct; because there is nothing to show that it was relevant to the matter in issue.
This objection we think is not well founded. It is true that the bill of exceptions contains no direct recital that the patent referred to had been introduced and relied on by the plaintiffs, or that evidence had been offered, showing, or tending to show that the grantee in the patent was dead at the time it was issued; but the necessary inference from the statements of the bill is that such was the case.
It sufficiently appears, therefore, on the fact of the bill of exceptions, that the instruction asked for was relevant and material ; so that it ought to have been given if it stated the law correctly.
To every grant it is essential that there should be a ^grantee, as well as a grantor; and the grantee' must, when the grant is made, be in esse and capable of receiving; otherwise the grant is void. Comyn’s Dig. Tit. Grant, A. B.
It seems to be quite clear, therefore, that a patent for land is void, if the patentee is dead at the time it is issued.
In Kentucky a statute was passed in 1792 reciting }hat “Whereas in some instances grants have been issued in the names of persons who were dead prior to the date of the grant, and case of the same nature may happen in the future,” |,nd enacting, “that in all' such cases the land shall descend to the heir, heirs or devisees in the same manner as it would do if the grant issued in the lifetime of the deceden t. ” Stat. Laws of Ky. p. 779; 1 Lit. 160. And it has been held in that Sta’ that a patent issued to a dead person pr. :• to this act of 1792, conferred no right uitil the passage of the act; and that, where in the interval between the issuing of- such patent and the passage of the act, a patent had been issued to another, the title of the grantee in the last patent was good against the heir or devisee of the grantee in the prior patent, who was dead when it issued in his favor. Lewis v. McGee, 1 A. K. Marsh. R. 199.
No such statute has ever been passed in Virginia.—Section 12, Ch. 144 of the Code, p. 582 (which re-enacts the law of February 24th, 1820—acts 1819-20, ch. 28 § 2) does not make valid a patent issued to one dead at the time, or give to his heirs and devisees the benefit of it. It manifestly applies to personal contracts and obligations merely, and the remedy given by it is confined to the personal representatives. As to patents therefore the rule of the common law is still in force with us.
But it is insisted that, admitting this to be so, yet the instruction ought not to have been given, because a patent cannot, in an action at law, be avoided or defeated by ^matter dehors: that a patent, being record evidence that a title has passed from the commonwealth, cannot, as long as it remains in force and it is not vacated or annulled by some direct proceeding calling in question its validity, be collaterally impeached for any matter not appearing on its face.
There has been much conflict of opinion, and no little contrariety of decision upon the question how far a patent may be impeached, in an action at law, for causes not apparent on its face. The better opinion seems to be that while its validity cannot be questioned in a suit at law, but is impeachable in equity only, for causes anterior to its being issued which render it voidable merely; it may be impeachd at law, for any matter which makes it absolutely void: as where the State has no title to -the thing granted, or where the officer had no authority to issue the grant. Polk’s Lessee v. Wendal, 9 Cranch's R. 87; Same case, 5 Wheat. R. 293; Patterson v. Winn, 11 Wheat R. 380; Whittington v. Christian, 2 Rand. 353; Warwick v. Norvell, 1 Rob. R. 308.
In the case now under consideration, there was no effort to impeach or set aside a patent. The design was to show that the paper purporting to be a patent, did not really possess that character. The defence set up was not that a patent relied on by the plaintiffs ought to be vacated, but that the paper produced by them, as and for a patent, was in truth no patent—that it was an utter nullity. Of course therefore the rules protecting patents from assault, in a court of law, can have no application. A matter like this is, to use, the language of *33Judge Marsh 'll in Polk’s Lessee v. Wendal, “necessarily examinable at law.” Accordingly in the case, already referred to, of Lewis v. McGee, 1 A. K. Marsh. R. 199, the patent was held void in an action of ejectment; thq-e being no suggestion even that it ''Is necessary to *resort to a scire facL i, or other proceeding, for the purpose of vacating it.
The refusal to give the instruction asked for, constitutes error for which the judgment must be reversed, and the cause remanded for a new trial. This renders it unnecessary to express an opinion upon any of the other question in the case, inasmuch as upon the next trial they may not arise.
The other judges concurred in the opinion of ROBERTSON, J.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481141/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Curtis Shuler appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915A(b) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Shuler v. Neely, No. 3:10-cv-00254-GCM, 2010 WL 2471892 (W.D.N.C. 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/8481142/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Veda Pryor appeals the district court’s granting Defendants’ motion to dismiss her complaint filed under Title VTI of the *842Civil Rights Act of 1964 and the Rehabilitation Act of 1973. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Pryor v. Germ, No. 8:09-cv-01366-AW (D.Md. Apr. 7, 2010). We further deny Pryor’s motion for transcript at government expense. 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/8481143/ | *843Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andrea G. Briggs appeals the district court’s orders denying relief on her civil action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Briggs v. Chasanow, No. 8:10-cv-0679-AW (D. Md. March 25, 2010; filed April 6, 2010, and entered April 7, 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/8481144/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carol L. Pizzuto appeals the district court’s orders staying discovery, denying her motion to remand, and granting Defendants’ motions to dismiss. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Pizzuto v. Randolph, No. 5:10-cv-00017-FPS, 2010 WL 2402861 (N.D.W. Va. June 3, 2010; June 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/8481145/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sean Anthony Robinson seeks to appeal the district court’s order granting his motion to hold his 18 U.S.C. § 3582(c)(2) (2006) motion for reduction of sentence in abeyance pending a Supreme Court decision. 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). Because the district court has not yet issued a disposi-tive order on Robinson’s § 3582(c)(2) motion, 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 |
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