Input: denied); Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex.App.—Dallas 1993, writ denied); see generally Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991) (noting that a trial court’s findings of fact are reviewed for legal and factual sufficiency of the evidence); W. Wendell Hall, Standards of Review in Texas, 29 ST. MARY’S L.J. 351, 375-76 (1998). 4 . Adams v. H & H Meat Products, Inc., 41 S.W.3d 762, 769 (Tex.App.—Corpus Christi 2001, no. pet. h.); Amerada Hess Corp. v. Wood Group Prod. Tech., 30 S.W.3d 5, 11 (Tex.App.—Houston [14th Dist.] 2000, pet. denied). 5 . See Tex. Civ. Prac & Rem.Code Ann. § 17.041-.093 (Vernon 1997). 6 . In addition to other, unspecified acts, a nonresident does business in this State if the nonresident: .—Austin 1985, no writ) (<HOLDING>); Uvalde Rock Asphalt Co. v. Consol. Carpet Holdings: 0: holding that a texas court had personal jurisdiction over a kansas resident who after objecting to the texas courts jurisdiction filed a motion for attorneys fees 1: holding no jurisdiction over nonresident customer where contract was solicited negotiated and consummated in oklahoma for billboards to be built in texas and erected in oklahoma payments were made to texas and defendant would not earn a profit from texas and had no other contact with texas 2: holding that where the entity was incorporated in texas and the shareholders reside in texas and the bankruptcy case is pending in texas texas law  not arizona law  should be applied 3: holding that jurisdiction existed over two georgia residents who leased a machine from a texas resident because they 1 solicited and negotiated the lease agreement by two telephone calls to texas 2 sent correspondence and payments by mail to texas 3 paid for the transfer of the machine from texas and 4 caused their insurance agent to contact the texas resident in texas to arrange coverage for the machine 4: holding that jurisdiction existed over nonresident printing customer despite the fact that texas printer solicited the business in alabama and nonresident sent no personnel to texas because nonresident placed additional orders from which it expected to profit sent payments to texas sent and received printing materials to and from texas paid for shipping of printed goods from texas and sent payments to texas the transactions were governed by texas law and substantial part of performance occurred in texas


Input: comment n. 3. Tucker argues that there was no evidence the gun was present during the controlled sales he made to the undercover officer and informant in the summer of 1999. Furthermore, he argues that the gun found in his apartment was not “present” in relation to the cocaine found in th cant amount of cash and a loaded gun in his bedroom as well as cocaine in the basement of his building. The fact that other tenants had access to the basement does not alter the result. Tucker admitted that the cocaine in the basement was his in pleading guilty to possessing the cocaine with intent to distribute it. The gun’s location in Tucker’s bedroom made it readily available to Tucker to protect his cash and the drugs in the basement. See id.; United States v. Paulino, 887 F.2d 358 (1st Cir.l989)(<HOLDING>). The two-level enhancement for possession of a Holdings: 0: holding that exception applies to statement by handcuffed parolee concerning whereabouts of a gun in an apartment where parole officers had specific information from a third party that a gun was likely present in the apartment 1: holding that the fortress theory was applicable where it reasonably appeared that the gun was used to protect the drugs given that the drugs and firearm were found in the same location 2: holding that the twolevel enhancement was appropriate where the gun cash and a drug ledger were found in one apartment and the drugs were found in a different apartment in the same building 3: holding that statements by defendant and apartment manager that defendant lived in the apartment where drugs were found demonstrated his control over the apartment even though no documents personal effects or keys were found 4: holding that the twolevel enhancement was appropriate where drugs cash and drug scales were found in defendants parlor and a gun was found in a secret compartment in defendants bathroom vanity


Input: S.E.2d 376, 382 (2000) (“His photograph [from a police file] was used to prove identity, which is permissible under Rule 404(b).”); State v. Johnson, 78 N.C. App. 68, 71, 337 S.E.2d 81, 83-84 (1985) (upholding admission of photographs of defendant standing next to marijuana plants as evidence of where defendant lived). Similarly, Cofield’s testimony that he had seen defendant in an altercation establishes how Cofield was able to identify defendant. Defendant also challenges testimony by Townsend that she told defendant that he could visit her son at her house so long as he did not take anything. This testimony does not, however, refer to prior crimes, wrongs, or acts of defendant and, therefore, falls outside of the scope of Rule 404(b). Thibodeaux, 341 N.C. at 63, 459 S.E.2d at 508 (<HOLDING>). Finally, the officer’s testimony regarding Holdings: 0: holding that trial court did not err in admitting testimony that defendant had indicated he might solve his financial difficulties by robbing a bank when the testimony at issue did not relate to any prior crime wrong or act of the defendant 1: holding that where defendant sought to exclude evidence prior to trial and again just prior to witnesss testimony at issue it was not necessary for defendant to object to testimony when it was actually put before jury 2: holding juvenile court did not abuse its discretion in admitting expert testimony 3: holding that trial court did not err 4: holding that the trial court did not err in charging the jury that the defendant was in the custody of the victim officer when he shot and killed the officer due to the undisputed evidence presented at trial including the defendants pretrial statement to police admitting that fact


Input: and the government both believed that the defendant was entering a guilty plea to a generically violent crime.”). B. The Trial Court’s Ruling on the Predicate Offense Here, with respect to the April 1999 conviction, Delgado was initially charged in December 1998 with Home Invasion in violation of Mass. Gen. L. ch. 265, § 18C. However, the Fitchburg District Court amended the charge of Home Invasion to Breaking and Entering in the Night-Time with Intent to Commit a Felony. Delgado pled guilty to that amended charge in April 1999. It is well established in our precedent — and the parties do not disagree— that Mass. Gen. L. ch. 266, § 16 includes conduct that constitutes a crime of violence as well as conduct that does not. See United States v. Dueno, 171 F.3d 3, 5 (1st Cir.1999) (<HOLDING>); Harris, 964 F.2d at 1235 (reading § 16 in Holdings: 0: holding that  459 is categorically a crime of violence under guidelines  4b12a2 because the usual or ordinary firstdegree burglary in california involves conduct that presents a serious risk of physical violence and injury to others 1: holding that theft from the person is not a crime of violence 2: holding that california residential burglary is categorically a crime of violence under the residual clause of ussg  4b12a2 which requires the criminal conduct to present a serious potential risk of physical injury to another 3: holding that burglary of commercial building is crime of violence under guidelines 4: holding that  16 encompasses conduct that constitutes a crime of violence ie breaking into and entering a persons home see ussg  4b12a2 burglary of a dwelling is a crime of violence and conduct that almost certainly does not ie breaking into and entering a vehicle


Input: it is inconsistent with the public interest or detrimental to the common good.” Vasquez, supra, 83 N.J. at 98, 415 A.2d 1156 (citation omitted). That is true whether the contract violates a statutory or common-law duty. The common law is not an inferior kind of law, as is suggested by the Court’s opinion today. The Legislature may enact a statute that alters or overrides the common law, but until such time the common law holds no lesser status than a statute when it commands that a duty be obeyed. In the past, this Court has struck down exculpatory clauses that violated public policy, expressed either in the common law or a statute, particularly when there was inequality in bargaining power between the parties to the contract. See, e.g., Hojnowski, supra, 187 N.J. at 338, 901 A.2d 381 (<HOLDING>); Carvalho, supra, 143 N.J. at 569, 578-79, 675 Holdings: 0: holding that a release of such claims or other matters arising from the beginning of time to the date of execution of this agreement did not protect the defendant from liability arising from unconstitutional conduct that occurred after the agreements execution 1: holding that a parents execution of a preinjury release of a minors future tort claims arising out of the use of a commercial recreational facility is unenforceable 2: holding that tort claims arising out of the manner in which a benefit claim is handled are preempted by fehba 3: holding unenforceable parents execution of exculpatory agreement on behalf of child 4: recognizing that a sheriff as an executive officer of the state of alabama is immune under article i  14 of the alabama constitution from suit based on state law claims arising out of the execution of the duties of his office


Input: suppressed if: (1) Its exclusion is required by the Constitution of the United States or the Constitution of the State of North Carolina; or (2) It is obtained as a result of a substantial violation of the provisions of this Chapter. In determining whether a violation is substantial, the court must consider all the circumstances, including: a. The importance of the particular interest violated; b. The extent of the deviation from lawful conduct; c. The extent to which the violation was willful; d. The extent to which exclusion will tend to deter future violations of this Chapter. N.C. Gen. Stat. § 15A-974 (2009). A review of the circumstances surrounding this action reveals that the detectives tricked and deceived Defendant about the nature of the crime for which he was 3, 471 (2002) (<HOLDING>); State v. Bailey, 145 N.C. App. 13, 19, 548 Holdings: 0: holding that defendant waived his right to selfrepresentation where he told the trial judge before trial that he did not want to represent himself and the public defender acted as counsel for the remainder of trial without objection 1: holding that bankruptcy is no exception to the due process principle that one is not bound by a judgment in personam in a litigation in which he is not designated as a party to or to which he has not been made a party by service of process internal quotation marks omitted 2: holding that trial court appropriately found that no promises or offers of reward were made where a defendant was told that if he wanted to help himself that he could help himself by cooperating internal quotation marks omitted 3: holding that no improper promises were made where an interrogating officer told a defendant that i can tell you that a person who cooperates and shows remorse and is honest and has no criminal background when it goes to court has the best chance of getting the most leniency because he cooperated internal quotation marks omitted 4: holding that implicit threats or promises did not render a defendants statement involuntary when a review of the circumstances reveals that the defendants independent will was not overcome so as to induce a confession that he was not otherwise disposed to malee internal quotation marks omitted


Input: discretion by failing to consider the criteria for parole set forth in the Parole Project Memorandum. Respondents maintain that the Parole Project Memorandum confers no substantive rights on detainees and does not have the force of law. It is well settled that an agency must follow its own internal procedures “[wjhere the rights of individuals are affected”, whether or not such procedures are formally promulgated and “even where the internal procedures are possibly more rigorous than otherwise would be required.” Morton v. Ruiz, 415 U.S. 199, 235, 94 S.Ct. 1055, 1074, 39 L.Ed.2d 270 (1974). The Second Circuit interprets Morton to require the INS to follow its own regulations when the “subject regulations were for the alien’s benefit.” Montilla v. INS, 926 F.2d 162, 169 (2d Cir.1991) (<HOLDING>). It distinguishes cases where “the agency Holdings: 0: holding that instruction that defendant must have knowingly transported illegal alien sufficiently informed jury that the transportation must also be willful 1: holding that a defendants waiver of the right to testify must be knowing informed and intelligent 2: holding that a collateral challenge to the use of a deportation proceeding as an element of a criminal offense must be permitted where the deportation proceeding effectively eliminates the right of the alien to obtain judicial review but declining to enumerate which procedural errors are so fundamental that they may functionally deprive the alien of judicial review 3: holding that an alien must be released unless the government demonstrates at a bond hearing that the alien poses a risk of flight or a risk of danger to the community 4: holding that the ins must adhere to the requirements of 8 cfr  24210 which governs the manner in which an alien must be informed of right to counsel at a deportation hearing


Input: P. 769, 769 (1923). In this case, Lucero already has accepted payment for her compensatory damages by collecting on the line of credit established by Aladdin. Thus, Lucero has accepted the benefits of the judgment and has waived her right to appeal the compensatory damage award. Lucero argues that she has not waived her right to appeal because her acceptance of the line of credit fits within an exception to the general rule found in Fernandez: “[W]here there is no possibility that the appeal may lead to a result whereby the appellant may recover less than has been received under the judgment appealed from, the right to appeal is unimpaired.” 28 N.M. at 426, 213 P. at 769; see also First Nat'l Bank in Albuquerque v. Energy Equities Inc., 91 N.M. 11, 18, 569 P.2d 421, 428 (Ct.App.1977) (<HOLDING>). Lucero contends that her pain and suffering Holdings: 0: recognizing exception 1: recognizing such an exception 2: holding that appellant satisfied exception 3: recognizing the rule and the exception but holding facts did not support claim to exception 4: holding that due process is satisfied where notice is mailed to the wrong address if the appellant received actual notice


Input: another way, the purpose behind this constitutional provision is to ensure that both chambers of a legislature fulfill their duty to the citizenry of deliberating the merits of proposed legislation. We disagree with the petitioners’ contention that the failure of the House to vote to approve the Senate’s extension of its adjournment invalidated all legislation that was passed during the 2007 Extraordinary Session. State courts that, have faced similar challenges to the validity of laws passed by their respective legislative bodies, when one of the legislative chambers adjourned longer than permitted under the state’s constitution, have rejected the notion that the laws passed by that legislative body are invalid. See, e.g., Opinion of the Justices, 288 Ala. 89, 257 So.2d 336 (1972) (<HOLDING>); Wilson v. City of Fargo, 48 N.D. 447, 186 Holdings: 0: holding that when the plaintiffs child was examined only once by a physician and was not required to be absent from day care for more than three days he had no serious medical condition within the meaning of the fmla 1: holding that the court lacks jurisdiction where a complaint was filed more than 30 days after the filing of the summons 2: holding that the attempt to remove  a director by written consent of the board is invalid 3: holding that state senates attempt to adjourn for more than three days without obtaining the consent of the house resulted merely in the legislative session continuing 4: holding that proof of incapacitation for more than three days was required before plaintiff could qualify for fmla protection


Input: the contract without paying for the expenses that Coastal had incurred up to that point. This dispute is thus governed by local, not federal, law.” Id. at 917. Lack of jurisdiction over a contract dispute can in no way create a lack of jurisdiction over a criminal matter in which federal statutes are implicated. Mem. & Order of March 25, 1998 at 3-4. Mrs. Koenig has presented nothing to cause the court to reconsider this ruling. Materiality Finally, Esther Koenig argues that the government failed to establish the materiality of the fraudulent statements. “Materiality” means the statements were capable of influencing the matter within the jurisdiction of HUD. See United States v. Greber, 760 F.2d 68, 72-73 (3d Cir.1985), cert. denied, 474 U.S. 988, 106 S.Ct. 396, 88 L.Ed.2d 348 (1985) (<HOLDING>). A reasonable jury could find that the Holdings: 0: holding that materiality is not an element of  1542 because any false statement is sufficient 1: holding that section 1001 controls over the limitations provision of the wrongful death statute 2: holding that materiality necessary element of section 1001 3: holding that materiality is an element of false statement prosecutions which must be submitted to the jury 4: holding that unlike  1001  1542 does not have a materiality requirement


Input: of Hypersensitivity Adverse Events Following Administration of Heparin That Was Potentially Contaminated with Oversulfated Condroitin Sulfate in Early 2008, 19 Pharmacoepidemiology & Drug Safety 921 (2010). 4 . Id. at 928. 5 . Although plaintiffs' experts rely on the cumulative evidence available, other courts have recognized the value of in vitro studies, ani mal studies, and case reports individually. See Bourne ex rel. Bourne v. E.I. Dupont de Nemours & Co., Inc., 189 F.Supp.2d 482, 496 (S.D.W.Va.2002) ("There can be no dispute that properly designed and conducted animal testing can yiel 3d 11, 24 (1st Cir.2011) ("epidemiological studies are not per se required as a condition of admissibility regardless of context.”); Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1336-37 (11th Cir.2010) (<HOLDING>); Glastetter v. Novartis Pharm. Corp., 252 F.3d Holdings: 0: recognizing that while it is more difficult to show actual fear without a defendants testimony a jury can infer intent from the circumstantial evidence 1: holding that absence of epidemiological evidence not fatal but makes his task to show general causation more difficult 2: recognizing the jurys difficult task of separating substantive proof from impeachment evidence bearing solely on a wit nesss credibility 3: recognizing that proving a negative may be difficult 4: recognizing inherently difficult task of proving a negative


Input: stated in “Rule 8 [of the Federal Rules of Civil Procedure] mark[] a notable and generous departure from the hyper-technical, code-pleading regime of a prior era ... it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 67 a merger clause that precludes consideration of extrinsic terms. The oral agreement as to the five-year term does not violate the parol evidence rule because it is not inconsistent with any of the written terms contained in the letter agreement. Zinn v. Walker, 87 N.C.App. 325, 333, 361 S.E.2d 314, 318 (1987) (merger clauses create a rebuttable presumption that the writing represents the final agreement between the parties); Hall v. Hotel L’Europe, Inc., 69 N.C.App. 664, 666, 318 S.E.2d 99, 101 (1984) (<HOLDING>). Defendant also argues the Complaint fails to Holdings: 0: holding the parol evidence rule presumes finality with respect to the written terms of the agreement only and does not prevent consideration of parol evidence concerning the duration of contract 1: holding that parol evidence is admissible to determine intent of parties 2: holding that the parol evidence rule did not bar introduction of evidence of a subsequent oral contract concerning the brokers right to a commission and modifying the written agreement 3: holding that when a contract is partially parol and partially written parol evidence may prove the parol terms 4: holding that parol evidence can be presented when the terms of the agreement are ambiguous


Input: property is conveyed to another purchaser before the injunction issues. See Samara Dev. Corp. v. Marlow, 556 So.2d 1097, 1101 (Fla.1990) (“Specific performance alone is not sufficient because the developer could sell the property to a third party in the interim, thereby nullifying the availability of specific performance.”). In that situation, however, Florida law provides for more than specific performance, regardless of what the contract says about remedies. Under Florida law, notwithstanding any contractual limitation of remedies, when the seller frustrates the buyer’s specific performance right by selling the property to someone else, the buyer may recover the seller’s entire profit from the sale. See Seaside Cmty. Dev. Corp. v. Edwards, 573 So.2d 142, 146-47 (Fla. 1st DCA 1991) (<HOLDING>). Thus, Paradigm would not have been able to Holdings: 0: holding in an action brought by buyers for specific performance of a contract for the sale of stock that the judicial admission exception was not satisfied by the sellers deposition testimony admitting that after meeting with the buyer he shook the buyers hand and stated weve got a deal because the statement even when taken in context with the preceding negotiations described by the seller in his deposition established neither a quantity nor price for the stocks 1: holding that even though the contract limited the buyers remedies to specific performance or a refund of earnest money they were entitled to damages in the amount of the difference between the contract price and the fair market value of the property where the seller thwarted the buyers right to specific performance by selling the property to another at a higher price 2: holding damage award resulting from a breach of an agreement to purchase securities is the difference between the contract price and the fair market value of the asset at the time of the breach 3: holding merely that to the extent a breaching party claims that the appropriate measure of damages is the difference between the contract price and the market price it holds the burden of proving that there is in fact an available market for the goods in issue 4: holding that the measure of damages for the breach of a contract of sale where no fraud is shown is the difference between the contract price and the market price of the goods on the date of the breach


Input: By contrast, when an accused in-fringer’s post-filing conduct is reckless,a patentee can move for a preliminary injunction, which generally provides an adequate remedy for combating post-filing willful infringement. A patentee who does not attempt to stop an accused infringer’s activities in this manner should not be allowed to accrue enhanced damages based solely on the in-fringer’s post-filing conduct. Similarly, if a patentee attempts to secure injunc-tive relief but fails, it is likely the infringement did not rise to the level of recklessness. Seagate, 497 F.3d at 1374 (citations omitted). Robocast did not move for a preliminary injunction. Microsoft’s defenses are reasonable. See Spine Solutions, Inc. v. Medtronic Sofamor Danek USA, Inc., 620 F.3d 1305, 1319 (Fed.Cir.2010) (<HOLDING>). Allowing a finding of willfulness based on Holdings: 0: holding that objective prong is generally not met where an accused infringer relies on a reasonable defense to a charge of infringement 1: holding that the objective prong for willful infringement is generally not met where an accused infringer relies on a reasonable defense to a charge of infringement 2: holding that the objective prong of willfulness was not met where a defendants defenses were reasonable 3: holding that the prejudice prong of strickland was not met in a claim of ineffective assistance of counsel for failing to object to the prosecutors misstatement of law where the trial court properly instructed the jury 4: holding stricklands prejudice prong was not met because of overwhelming evidence of guilt


Input: Nurses Mendez and Telles in Counts Seven, Eight, and Nine. Because Plaintiff has asserted claims against Defendant Hospital, the municipal entity, and Nurses Mendez and Telles, municipal officials in their official capacity, the Court will dismiss the official capacity claims as “redundant” to the municipal-entity claims. See Sanders-Burns, 594 F.3d at 373. C. Section 1983 Personal-Capacity Claims Against State Defendant Drs. Laks, Parsa, Solomin, Agui-la and Municipal Defendant Nurses Mendez, and Telles Qualified immunity applies with equal force to state and municipal officials. See Bosarge v. Miss. Bureau of Narcotics, 796 F.3d 435, 441 (5th Cir. 2015) (noting that defendants employed by a state can invoke qualified immunity); Kinney v. Weaver, 367 F.3d 337, 395 (5th Cir. 2004) (<HOLDING>). Qualified immunity shields state and Holdings: 0: holding that defendants are not entitled to qualified immunity 1: holding trial court improperly granted dismissal on ground of immunity because the defendant had qualified statutory immunity rather than absolute immunity 2: holding that where defendant claiming qualified immunity relies on facts that are in dispute qualified immunity cannot be granted 3: recognizing that defendants employed by a municipality can invoke qualified immunity 4: holding that qualified immunity is not merely immunity from damages but also immunity from suit


Input: a vehicle that was next to two men engaged in a violent fight, so that the officer, who was acting alone, could “control the situation to protect his safety.” 337 F.3d at 1288. ¶ 18 Later, in United States v. Williams, 419 F.3d 1029 (9th Cir.2005), the Ninth Circuit Court of Appeals likewise held that an officer could order a passenger who exited a lawfully stopped vehicle back into the vehicle. In doing so, the court acknowledged: Those circuits to address the issue post-Wilson have agreed that officers may detain passengers during a traffic stop, whether it is by ordering the passenger to remain inside the automobile or by ordering the passenger to get back into an automobile that he or she voluntarily exited. See, e.g., Rogala v. District of Columbia, 161 F.3d 44, 53 (D.C.Cir.1998) (<HOLDING>) (emphasis in original); United States v. Holdings: 0: holding that an officer may order a passenger out of a vehicle during a stop for a traffic infraction 1: holding that police officer may order passengers to remain in vehicle with hands up during traffic stop 2: holding an officer may order a passenger to get out of a car during a traffic stop and may frisk a passenger for weapons if the officer reasonably suspects the passenger is armed and dangerous 3: holding that a passenger ordered by police to get back onto the vehicle that she voluntarily exited was not an unreasonable seizure because a police officer has the power to reasonably control the situation by requiring a passenger to remain in a vehicle during a traffic stop 4: holding that fourth amendment rights of a passenger of a legally stopped vehicle were not violated by police officers instruction that he remain inside the vehicle during traffic stop after passenger repeatedly tried to exit


Input: it is distinguishable from the instant case. Noyola clearly refers to the Pickering balancing test which balances the employee’s interest in free speech against the government as employer’s interest in discipline and efficiency in the workplace. It is important to note that in Harris the Defendants did not effectively allege that Harris and Martin’s speech disrupted the school environment or affected their work in any way. No balancing was required because one side of the scale sat empty. See Vojvodich v. Lopez, 48 F.3d 879, 887 (5th Cir.1995) (“[s]ince Sheriff Lopez has alleged no disruption of governmental functions as a result of Vojvodich’s activities, we cannot hold he is entitled to qualified immunity”); Boddie v. City of Columbus, Mississippi, 989 F.2d 745, 750 (5th Cir.1993) (<HOLDING>); Click v. Copeland, 970 F.2d 106, 112-13 (5th Holdings: 0: holding that there is no mandatory order of decisionmaking in qualified immunity cases 1: holding that defendants are not entitled to qualified immunity 2: holding qualified immunity unavailable because there was no government interest to balance 3: holding that government entities may not assert qualified immunity 4: holding qualified immunity defense unavailable to the united states in ftca action


Input: taken from the premises, but could not be moved for closer examination.”) Thus, to determine if the field test was a permissible warrantless search, we must determine if the officers could have lawfully seized the white powder residue contained in the plastic baggies. The “plain view” doctrine will justify a warrantless seizure if: (1) the officers lawfully entered the area where the items were located; (2) the items were in plain view; (3) the incriminating nature of the items was “immediately apparent”; and (4) the officers had a lawful right of access to the items. Horton must consider the totality of the circumstances — including the officers’ training and experience as well as their knowledge of the situation at hand. See United States v. Buchner, 7 F.3d 1149, 1154 (5th Cir.1993) (<HOLDING>), cert. denied, — U.S. -, 114 S.Ct. 1331, 127 Holdings: 0: holding that a probable cause determination must be viewed in light of the observations knowledge and training of the law enforcement officers involved in the warrantless search 1: holding that the question of whether the police had reasonable suspicion and probable cause to make a warrantless search should be reviewed de novo 2: holding that the police officers had probable cause to make a warrantless entry 3: holding warrantless search of defendants automobile four days after impoundment was permissible under requirements of fourth amendment and state constitution where officers had probable cause to search vehicle when it was impounded and that probable cause continued between the time of the impoundment and the search 4: holding that eyewitness accounts and an officers observations established probable cause


Input: 475 U.S. 673, 678, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986); Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000). While admitting that the goal of the Confrontation Clause' is reliability of evidence, *‘[i]t commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Crawford v. Washington, 541 U.S. 36, 61, 124 S.Ct. 1354, 1370, 158 L.Ed.2d 177 (2004); see also Henley v. State, 493 S.W.3d 77, 95 (Tex. Crim. App. 2016) (summarizing the interaction of the Confrontation Clause and the Texas Rules of Evidence) (upholding Lopez v. State, 18 S.W.3d 220, 225 (Tex., Crim. App. 2000)). “[S]tate and federal rulemak-ers have broad latitude under the Constitution to estab 12-14 (Tex. Crim. App. 1992) (<HOLDING>). Appellant, argues that his inability to copy Holdings: 0: holding in camera review by trial court to determine whether crime stoppers information contained brady information would meet the balance of defendants constitutional rights against the states interest in fostering law enforcement 1: holding that in a military criminal trial the governments use of classified information without permitting the defendant or his lawyers to view the information did not violate the defendants due process rights 2: holding actual possession of or access to information by the irs is not an absolute bar to enforcement of a summons for that information 3: holding that the information contained in the police files with regard to other possible suspects was not brady material 4: holding that even if information in an affidavit was provided in reckless disregard of the truth appropriate course of action is to sever that information from the affidavit and determine whether sufficient information remained in order for the magistrate to find probable cause


Input: was neither made to nor addressed by Judge Coogler in Earnest. The question is seemingly answered against Andalusia and Hughes by the Eleventh Circuit in Fortson v. St. Paul Fire and Marine Ins. Co., 751 F.2d 1157, 1159 (11th Cir.1985), where the Eleventh Circuit held: Plaintiffs action is not a “direct action” within the meaning of 28 U.S.C.A. § 1332(c) ... That section was enacted by Congress in order to eliminate the basis for diversity jurisdiction in states that allow an injured third-party claimant to sue an insurance company for payment of a claim without joining the company’s insured as a party, where the insured would be a nondiverse party, even though the party insurance company would otherwise by diverse. See Hernandez v. Travelers Insurance Co., 489 F.2d 721, 723 (5th Cir.) (<HOLDING>), cert. denied, 419 U.S. 844, 95 S.Ct. 78, 42 Holdings: 0: holding action by judgment creditor of insured against insurer for bad faith failure to settle claim against insured not a direct action within section 1332c proviso 1: holding that a limited liability company is a citizen of any state of which a member of the company is a citizen 2: holding workers compensation insurer deemed by section 1332c to be citizen of state of which insured is citizen in suit brought by insureds injured employee 3: holding action by insured against his own insurer under uninsured motorist provisions of policy not a direct action within section 1332c proviso 4: holding that police may approach citizen and ask that he roll down the window as long as the officers do not detain the citizen or create the impression that the citizen may not leave


Input: could conclude that the action was within the scope of the employment.” Boykin v. District of Columbia, 484 A.2d 560, 562 (D.C.1984). In this case, the facts establish as a matter of law that Sullivan was acting outside of the scope of his employment at the time of the accident. First, by driving under the influence of alcohol, Sullivan engaged in conduct far removed from “the kind he Court otherwise. Third, Sullivan admitted in a sworn statement that he was off duty and was driving home at the time of the accident. Under such circumstances, Sullivan’s conduct could not be viewed by a reasonable finder of fact to have served the activities, interests, or objectives of the United States or of the District of Columbia. See Smith v. United States, 762 F.Supp. 1511, 1513 (D.D.C.1991) (<HOLDING>), aff'd, 957 F.2d 912 (D.C.Cir.1992). See also Holdings: 0: holding as a matter of law that a police officer was not acting within the scope of his employment when assaulting an acquaintance of a woman he had detained 1: holding as a matter of law that an offduty government agent was not acting within the scope of his employment when he was driving home intoxicated after completing his tour of duty because on no basis would the court conclude that drinking and driving after work hours fell within the scope of the dea agents employment   2: holding that the employers party was a social event thus the employee was not acting within the scope of her employment when drinking at a party or when she was driving home afterwards 3: holding that both agent and principal will be liable when the agent acts within the scope of his employment but for his own purposes 4: holding that even when employee was driving employers vehicle employee was not acting within the scope of his employment absent evidence that he had undertaken a special mission at his employers direction


Input: couriers, required him to travel to Jamaica himself. Because the district court’s relevancy determination was not “arbitrary or irrational,” we find no abuse of discretion. See United States v. Amuso, 21 F.3d 1251, 1263 (2d Cir.1994). Also unavailing is Williams’s assertion that the district court violated the law of the case by reconsidering, at the second trial several of the evidentiary rulings it had made at the first. Specifically, Williams challenges certain modifications by the district court of its prior rulings on evidence of other crimes and innocent trips to Jamaica. Assuming, without deciding, that the law of the case doctrine even applies to mere evidentiary rulings in a second trial of the same case, but see United States v. Akers, 702 F.2d 1145, 1147-48 (D.C.Cir.1983) (<HOLDING>), we find no abuse of discretion in the Holdings: 0: recognizing doctrine 1: holding that doctrine does not violate due process 2: holding that the doctrine does not apply in such circumstancesi 3: holding that doctrine does not violate right of confrontation 4: holding that doctrine does not violate equal protection


Input: genuinely disputes Koons’s contention that Clarity’s misconduct was sufficient to constitute an “extraordinary circumstance,” and I conclude that, as a matter of law, Clarity’s misconduct was an “extraordinary circumstance.” Here, Clarity assured Koons on more than one occasion — in his March 30, 2012, letter and his June 15, 2012, letter — that he would make sure that her § 2255 Motion was timely filed, either by him or by Ms. Wingert. Indeed, in his June 15, 2012, letter, Clarity did not simply suggest that Koons find another attorney to file her § 2255 Motion, but stated that he had “turned over [Koons’s] file” to Ms. Wingert and represented that Ms. Wingert “[wa]s going to handle the file while [he] [was] gone.” Petitioner’s Appendix at 3-4 (Exhibit C). Cf. Martin, 408 F.3d at 1093 (<HOLDING>); and compare Muhammad, 735 F.3d at 816 (noting Holdings: 0: holding that equitable tolling may be available where the attorneys behavior was outrageous or the attorneys incompetence was extraordinary 1: holding that disbarment was the appropriate sanction for an attorneys repeated material misrepresentations 2: holding in review of a downward departure that an extraordinary reduction must be supported by extraordinary circumstances 3: holding that an injunction is an extraordinary remedy 4: holding that an attorneys repeated lies and deceptions about the status of the prisoners case were extraordinary circumstances


Input: sentence is illegal under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) , and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) , because the district court may have enhanced her sentence based on facts not found by a jury. Defendant’s argument is patently without merit. A sentence is illegal if it “is ambiguous with respect to the time and manner in which it is to be served, is internally contradictory, omits a term required to be imposed by statute, is uncertain as to the substance of the sentence, or is a sentence which the judgment of conviction did not authorize.” United States v. Dougherty, 106 F.3d 1514, 1515 (10th Cir.1997) (quotation omitted); see also United States v. Gonzalez-Huerta, 403 F.3d 727, 739 n. 10 (10th Cir.) (<HOLDING>), cert. denied, 546 U.S. 967, 126 S.Ct. 495, Holdings: 0: recognizing a claim that the sentence exceeded the statutory maximum 1: holding that if a criminal defendant alleges that his sentence is illegal or exceeds statutory mandates this court will review the sentence even if the defendant failed to make a timely objection in the district court 2: holding that a sentence imposed for a violation of supervised release will be upheld where 1 the district court considered the applicable policy statements 2 the sentence is within the statutory maximum and 3 the sentence is reasonable 3: holding term illegal sentence is reserved for instances where sentence exceeds statutory maximum 4: holding where the statutory minimum sentence exceeds the guidelines sentence a substantialassistance downward departure begins at the mandatory minimum sentence


Input: tolling. We consider each argument in turn. II The district court dismissed without discussion Johnson’s § 1981 claim. Nevertheless, we may affirm the district court’s determination on any ground supported by the record. Papa v. United States, 281 F.3d 1004, 1009 (9th Cir.2002) (citing Vestar Dev. II v. Gen. Dynamics Corp., 249 F.3d 958, 960 (9th Cir.2001)). A Rule 12(b)(6) dismissal may be based on either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1988) (citation omitted). In reviewing the district court’s decision, we view Johnson’s complaint in the light most favorable to him, accepting all well- na Islands, 107 F.3d 1436, 1446-47 (9th Cir.1997) (<HOLDING>). Thus, although Johnson’s complaint alleges Holdings: 0: holding that a claim of retaliation for filing eeoc charges is cognizable under  1981 1: holding that plaintiffs claim that she was filipino was a sufficient basis for  1981 relief 2: holding that  1981 was appropriate as a basis of a claim by nonjapanese employees of a japanese corporation 3: holding that american indian plaintiffs had appropriately pled a claim under section 1981 4: holding that the plaintiffs contention that she was shocked and upset after her unexpected termination was sufficient to survive motion to dismiss claim for intentional infliction of emotional distress nonetheless claim was dismissed for failure to show that conduct was outrageous


Input: violations made to appropriate governmental bodies. Finally, the Board concluded that the Report did not constitute a “disloyal” statement like that found to fall outside of the protection of § 7 in NLRB v. Local 1229, International Brotherhood of Electrical Workers (Jefferson Standard), 346 U.S. 464, 74 S.Ct. 172, 98 L.Ed. 195 (1953). We cannot say that the Board erred in determining that preparation of the Report constituted § 7 activity. The record supports the Board’s finding that the Report raised issues that related not only to patient welfare but to the working conditions of the employees; indeed, in the health care field such issues often appear to be inextricably intertwined. See, e. g., Community Hospital of Roanoke Valley, Inc. v. NLRB, 538 F.2d 607, 610 (4th Cir. 1976) (<HOLDING>); Reading Hospital and Medical Center, 226 NLRB Holdings: 0: holding that tort claims were arbitrable because they arose out of and were related to contract 1: holding that a hospital can conspire with members of its medical staff 2: holding that a nurse practitioners opinion constituted an acceptable medical source where the nurse worked closely under the supervision of the doctor such that the nurse was acting as an agent of the doctor 3: holding jury was warranted in finding hospital negligent in its selection and retention of a nurse after the nurse violated hospital rules and had been repeatedly reprimanded but not fired 4: holding protected a television interview in which a nurse complained of hospital staff shortages and suggested that they were related to low pay


Input: running, jumping, and bending limitations, as well as his inability to work more than eight hours a day. Aside from this single reference to these restricted activities in his deposition, William has proffered no other evidence that his leg and foot movements were so severe as to limit a major life activity. The only activity that seems to be limited is his ability to run and play sports. We have no idea as to the extent to which his running and jumping are major life activities for William, nor is there any indication as to how substantially his participation in sports is affected. A single conelusory statement about an alleged substantial limitation is not enough to avoid summary judgment sought by the employer. See Penny v. United Parcel Serv., 128 F.3d 408, 415 (6th Cir.1997) (<HOLDING>). The only other activity that could possibly Holdings: 0: holding summary judgment for the employer was warranted because the only evidence in support of plaintiffs claims was solomons own testimony 1: holding that the court could not conclude that the plaintiffs deposition testimony was so contradictory of the statements contained in plaintiffs affidavit as to foreclose the affidavits use for summary judgment purposes 2: holding that a plaintiffs selfserving deposition testimony was not enough for her fdcpa claim to survive summary judgment but that a consumer survey may have been sufficient 3: holding that plaintiffs knee injury was considered an impairment because it prevented poleclimbing 4: holding that a plaintiffs bare allegation of a walking impairment was not sufficient to avoid summary judgment because the plaintiffs deposition testimony provides little support for the claim that his impairment rises to the level of a disability


Input: that Denton “maintained a claim” for the unlawful entry and search of his home. Denton moved to dismiss the appeal for lack of jurisdiction. We took Denton’s motion with the case. II. ANALYSIS A. Fourth Amendment violation Rievley argues that the district court erred in denying him summary judgment on the claim that he arrested Denton inside his home without a warrant in violation of the Fourth Amendment. He claims that, even construing the facts in the light most favorable to Denton, the arrest occurred outside of Denton’s home. We lack jurisdiction to review the issue because the district court’s decision to proceed to trial is not a “final judgment” but rather a ruling on “evidence sufficiency.” Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (<HOLDING>). B. Qualified immunity Rievley seeks to avoid Holdings: 0: holding that it may not 1: holding an order denying a motion for summary judgment is interlocutory and not appealable 2: holding that a summary judgment order determining only a question of evidence sufficiency ie which facts a party may or may not be able to prove at trial is not immediately appealable 3: holding that a defendant entitled to invoke a qualified immunity defense may not appeal a district courts summary judgment order insofar as that order determines whether or not the pretrial record sets forth a genuine issue of fact for trial 4: holding that a portion of a district courts summary judgment order that determines which facts a party may or may not be able to prove at trial is not appealable


Input: in existence after discharge in bankruptcy, although divested of its character as a personal obligation that is legally enforceable. See In re Cassi, 24 B.R. 619, 626 (Bankr.N.D.Ind.1982). Thus, a bankruptcy does not discharge a debt for all purposes. Id. For example, a debt will continue to exist for the purpose of proceeding against the debtor in order to impose liability on accommodation parties. Id. A landlord can still avail itself of statutory remedies to recover possession of premises for nonpayment of rent. In re Hepburn, 27 B.R. at 136 (citing 1A Collier on Bankruptcy § 17.27, n. 4 (James W. Moore ed.,14th ed.1978)). In addition, the federal approach seems to enjoy substantial acceptance among the states. See, e.g., Stewart v. Underwood, 146 Ariz. 145, 704 P.2d 275, 278 (1985) (<HOLDING>); Hollanger v. Hollander Rice Farms, Inc., 445 Holdings: 0: holding that although the plan cannot discharge the debt  the claimant may otherwise subject the debt to the provisions of a confirmed plan 1: holding that extinguishment of the debt entitles the mortgagor to a surrender of the note and a discharge of the mortgage 2: holding that a debt collectors filing of a lawsuit on a debt that appears to be timebarred  is an unfair and unconscionable means of collecting the debt 3: holding that effect of bankruptcy discharge under arizona law is not an extinguishment of the debt but only a bar to enforcement of the debt as a personal obligation of the debtor 4: holding that bankruptcy discharge eliminates only a debtors personal liability and not the debt itself and that a bankruptcy trustee stands in the shoes of the debtor and can bring a legal malpractice claim as trustee


Input: the right-of-way, a copy of the State’s application and stipulation, and reference to a tribal resolution waiving payment for the land. The Red Lake Band General Council’s unanimously approved resolution, dated April 1955, shows that the Red Lake Band considered the State’s application for a right-of-way, consented to waive damages to tribal land in light of the benefit conferred by the road improvement, and required the State to pay damages to individual tribal members in exchange for the right-of-way. In September 2001, Kelly sued the Nords in Tribal Court, seeking damages for personal injuries sustained in the accident. The non-Indian Nords filed a motion to dismiss for lack of jurisdiction, citing Strate v. A-1 Contractors, 520 U.S. 438, 442, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997) (<HOLDING>). The Tribal Court did not rule on the motion Holdings: 0: holding that a tribe had the inherent authority to prosecute a nonmember indian for assaulting a tribal member while on the reservation and that federal assault charges stemming from the same incident and filed after the nonmembers tribal assault conviction were based on a separate power source and therefore  did not violate the double jeopardy clause 1: holding that state could require indian tribe to affix tax stamps purchased from the state to individual packages of cigarettes prior to the time of sale to nonmembers of the tribe and that state has power off the reservation to seize unstamped cigarettes as contraband 2: holding tribal courts may not entertain claims against nonmembers arising out of accidents on state highways absent a statute or treaty authorizing the tribe to govern the conduct of nonmembers on the highway in question 3: holding that neither the tribe or its tribal court was necessary to the determination of the tribal courts jurisdiction given that the district courts judgment would be binding on the absent party and they did not have a legally protected interest at issue noting that the tribe was not a party to a relevant agreement or treaty with any party to the suit 4: holding that states have authority to tax sales of cigarettes to nonmembers of the tribe


Input: renders a board capable of defending the corporation in court. Id. Further, boards are able to purchase liability insurance. See N.C. Gen. Stat. § 115C-42. This purchase would waive the Board’s immunity “but such immunity is waived only to the extent that said board of education is indemnified by insurance for such negligence or tort.” Id. Despite their classification as a body corporate, courts have held that boards are generally immune from punitive damages. See Barrett v. Bd. of Educ. of Johnston Cty., N.C., 13 F.Supp.3d 502, 515 (E.D.N.C.2014) (determining that “[n]o statutory exception permits an award against the Board ... so the Board is immune from punitive damages here”); J.W. v. Johnston Cty. Bd. of Educ., No. 5:11-CV707-D, 2012 WL 4425439, at *17 (E.D.N.C. Sept. 24, 2012) (<HOLDING>); N.C. Motorcoach Ass’n v. Guilford Cty. Bd. of Holdings: 0: holding that the board cannot be liable for punitive damages citations omitted 1: holding that absent explicit statutory authority a municipality cannot be held liable for punitive damages 2: holding a court may not award punitive damages 3: holding without discussion of the punitive damages issue that judgment for embezzlement which included actual and punitive damages was nondischargeable 4: holding that punitive damages are not fines


Input: district court did not err by enhancing Kelly’s sentence for obstruction of justice pursuant to U.S.S.G. § 3C1.1. The district court heard testimony that several shipping labels for packages sent in the conspiracy were not found in the post office where Kelly worked, even though corresponding labels for those packages were found in another post office. Kelly also told a co-conspirator he destroyed shipping labels, and Kelly confirmed this statement when questioned by a postal inspector. Substantial evidence therefore supported the conclusion Kelly destroyed shipping labels after he knew about the postal investigation, and the district court did not clearly err in concluding an obstruction of justice enhancement was warranted. See United States v. Doe, 661 F.3d 550, 566 (11th Cir.2011) (<HOLDING>). The district court did not err in denying a Holdings: 0: holding that a district court may not impose a sentencing enhancement based on conduct of which the jury acquitted the defendant 1: holding that the district court erred in imposing an enhancement under the  5k20 departure provision where an enhancement under the separate guidelines provision for restraining a victim during the course of an offense would have been appropriate 2: holding that although the investigation of the traffic offense that served as the basis for the stop was complete when the officer issued the citation the officers continued detention of the appellant thereafter for a canine search was lawful because during the investigation of the traffic offense the officer had developed a reasonable suspicion that the appellant had committed a drugrelated offense 3: holding that the actual innocence exception applies to a sentencing enhancement in a noncapital sentence 4: holding enhancement applies when the obstructive conduct occurred during the course of the investigation prosecution or sentencing of the offense quotation omitted


Input: appeal, we do not discuss them. 11 . BLM misses this point when it argues that it has no NEPA obligation because that statute contains no provision that makes explicit mention of "wilderness characteristics.” It is true that NEPA does not mention "wilderness characteristics.” It would be surprising if it did so. NEPA is designed to apply broadly, to all sorts of federal activities. It is not a laundry list of factors to be considered and could not be. Instead, the factors to be considered are derived from the statute the major federal action is implementing, as well as from the nature of the action itself. It is, consequently, not at all unusual to review EIS’s with regard to consideration of factors not specifically mentioned in NEPA. See, e.g., Earth Island Inst., 442 F.3d at 1160-67 (<HOLDING>); Hells Canyon Alliance v. U.S. Forest Serv., Holdings: 0: holding that settlement notice that failed to detail a distribution plan was not inadequate 1: holding that bias decision was inadequate because it failed to offer even a cursory review of the record 2: holding after consideration of a single significance factor that an eis was required 3: holding that the rod and eis for a program were final agency action 4: holding an eis for a forest project inadequate because it failed properly to consider tree mortality


Input: other than payees named in the statute, see the following post-BAPCPA decisions: In re Johnson, 397 B.R. 289, 296 (Bankr.M.D.N.C.2008)(stating that debtor’s obligation to pay bank on second deed of trust obligation was nondischargeable debt owed to former spouse because if debtor failed to pay and former spouse paid, former spouse could then recover payment amount from debtor under hold harmless agreement); In re Poole, 383 B.R. at 313 (stating in dicta that debts owed to third parties that are in the nature of support may still be domestic support obligations if enforceable and recoverable by the spouse; however, the debt at issue was a property settlement obligation and not support debt). See also Kassicieh v. Battisti (In re Kassicieh), 425 B.R. 467, 476-77 (Bankr.S.D.Ohio 2010)(<HOLDING>)(citing Levin v. Greco, 415 B.R. 663, 666-67 Holdings: 0: holding that a creditor objecting to the dischargeability of a debt under  523a must prove its case by a preponderance of the evidence 1: holding that debts for a guardian ad litem and a psychologist were nondischargeable under  523a5 because the emphasis is to be placed on the determination of whether a debt is in the nature of support rather than on the identity of the payee 2: holding that the party challenging the dischargeability of a debt bears the burden of proving the debt nondischargeable by a preponderance of the evidence 3: recognizing that several postbapcpa decisions have continued to hold that in analyzing the dischargeability of debts payable to a third party it is the nature of the debt rather than the identity of the creditor that controls 4: holding that the code excepts from discharge debts resulting from agreements by the debtor to hold the debtors spouse harmless on joint debts to the extent those debts are in the nature of alimony maintenance or support


Input: held that “in the circumstances (an essential qualification), there was also no excuse for the lawyer’s failure to consult experts on hair, DNA, treadmarks, and footprints.” Id. Miller therefore supports petitioner’s contention that in some cases, experts are so crucial to the defense that a failure to seek their advice is unreasonable. Accord Duncan v. Ornoski, 528 F.3d 1222, 1235 (9th Cir.2008) (“Although it may not be necessary in every instance to consult with or present the testimony of an expert, when the prosecutor’s expert witness testifies about pivotal evidence or directly contradicts the defense theory, defense counsel’s failure to present expert testimony on that matter may constitute deficient performance.”) (citing Caro v. Woodford, 280 F.3d 1247, 1254-56 (9th Cir.2002) (<HOLDING>)). Two Second Circuit cases emphasize that Holdings: 0: holding frye test was not implicated by proposed testimony of employees expert that cause of birth defect of her son was exposure to toxic solvents 1: holding that counsel was not deficient in failing to present a meritless argument 2: holding that trial counsels performance was not deficient for failing to give a mental health expert additional information because the expert testified at the evidentiary hearing that the collateral data would not have changed his testimony 3: holding that counsel was deficient for failfing to consult or call an expert on the psychology of child sexual abuse or to educate himself sufficiently on the scientific issues 4: holding that counsel was deficient for failing to consult an expert and present expert testimony about the physiological effect of toxic chemical exposure on defendants brain


Input: of 87 months or less. See United States v. Roque, 421 F.3d 118, 121-23 (2d Cir.2005) (explaining that waivers of right to appeal sentence, entered into knowingly and voluntarily, are enforceable). Second, even if the waiver were ineffective, a district court’s refusal to downwardly depart is not reviewable on appeal unless the case fits within certain narrow exceptions, none of which are present here. See United States v. D’Oliveira, 402 F.3d 130, 133 (2d Cir.2005). Third, it was not unreasonable for the district court to impose the statutorily mandated minimum sentence of five years. See United States v. Fuller, 426 F.3d 556, 560 (2d Cir.2005) (“[T]he proper standard of review for sentences is ‘reasonableness.’ ”); United States v. Sharpley, 399 F.3d 123, 127 (2d Cir.2005) (<HOLDING>). For the first time on appeal, Martin asserts Holdings: 0: holding unconstitutional the mandatory application of the federal sentencing guidelines 1: holding that even in the absence of a sixth amendment violation the imposition of a sentence under the former mandatory guidelines regime rather than under the advisory regime outlined in booker is plain error 2: holding that a sentence based on a mandatory minimum was unaffected by amendment 706 to the sentencing guidelines 3: holding that the mere mandatory application of the guidelines  the district courts belief that it was required to impose a guidelines sentence  constitutes error 4: holding that the district courts use of the sentencing guidelines as a mandatory regime was harmless error because appellant could not receive a lesser sentence than the mandatory minimum required by  2251d


Input: licensed or registered professional in providing the professional services, including any error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual basis for each such claim.” Tex. Civ. Prac. & Rem. Code § 150.002(b). The purpose of the certificate of merit is to provide a basis for the trial court to conclude that the plaintiffs claims against a licensed or registered professional are not frivolous. Dunham Eng’g, 404 S.W.3d at 795-96; Morrison Seifert Murphy, Inc., 384 S.W.3d at 425. The plaintiffs failure to file the affidavit in an appropriate case “shall result in dismissal of the complaint against the defendant” and the dismissal may be with prejudice. Id. § 150.002(e); see Crosstex Energy Servs., 430 S.W.3d at 393 (<HOLDING>). 2. Plaintiffs’ Wrongful Death Claims Are Not Holdings: 0: holding that this time requirement is mandatory and jurisdictional 1: holding rule 15as attorneys certificate requirement is not jurisdictional 2: holding requirement nonjurisdictional and remanding for a possible eeoc waiver of that requirement 3: holding that certificate of merit is a mandatory but nonjurisdictional filing requirement 4: holding copyright statutes registration requirement a nonjurisdictional condition although previously held to be jurisdictional


Input: entirely on Gallagher's holding that the State could use both the child declarant’s live testimony and past statements. We agree and hold that the trial court did not err in admitting recorded statements to buttress T.S.’s live testimony. ¶ 17. Defendant argues, however, that the recorded statements were not admissible under Rule 804a, apparently believing that the rule requires that a witness to the statements testify to their content. In fact, the rule makes the statements admissible and does not impose any restriction on how they will be introduced. Thus, we have previously held that recorded statements made by a victim are admissible under Rule 804a. State v. LaBounty, 168 Vt. 129, 136-38, 761 A.2d 1, 6-8 (1998); see also State v. Blackburn, 162 Vt. 21, 25, 643 A.2d 224, 226 (1993) (<HOLDING>). In LaBounty, social workers tape-recorded Holdings: 0: holding that the victims prior videotaped testimony from a preliminary hearing was admissible as testimony at trial where the victim was unavailable to testify 1: holding that it was error to admit a videotaped interview of an alleged child victim of sexual abuse because the defendant was deprived of the right to crossexamine the child 2: holding that even if videotaped interview of child violated sparkmans constitutional right to confront this witness the evidence was harmless beyond a reasonable doubt where appellant admitted engaging in inappropriate sexual conduct with child among other evidence of direct accusation of criminal sexual conduct 3: holding that a videotaped interview between the child and an investigator was admissible 4: holding that since petitioner made specific request for counsel before interview policeinitiated interview was impermissible


Input: or Heretofore Forming the United States of America 1688). Even then, there were no "just compensation” provisions, but the property could not be taken without the consent of the owner or the Legislature. Id. at 698. Vermont was the first state to require "just compensation” in its 1777 constitution. Id. at 701. 8 . Two judges dissented, pointing out that the Act's "chief purposes” was to promote tourism and to create an environmentally attractive “habitat for indigenous flora and fauna,” not to prevent harmful or noxious uses. — U.S. at — , 112 S.Ct. at 2890 (quoting Lucas v. South Carolina Coastal Council, 304 S.C. 376, 396, 404 S.E.2d 895, 906 (1991)). 9 . Mugler was, in part, based on Pumpelly v. Green Bay & Mississippi Canal Co., 80 U.S. (13 Wall.) 166, 177-81, 20 L.Ed. 557 (1871) (<HOLDING>). Its progeny included Reinman v. City of Holdings: 0: holding that a landowner could recover for placement of a median strip that could not have occurred but for the taking of the landowners property because the inquiry is how much has the particular public improvement decreased the fair market value of the property taking into consideration the use for which the land was taken and all the reasonably probable effects of its devotion to that use 1: holding that a taking occurred where flooding of the plaintiffs property amounted to an almost complete destruction of the value of the land 2: holding that the federal government was liable for a taking of property where california officials acting under the authority of a federal order occupied land 3: holding the aggregate value of the land and its improvements is the controlling value 4: holding determination of property value in case to decide if assessed value was excessive is not a liquidated demand where only evidence of property value was the conclusory allegation of value in plaintiffs unsworn petition


Input: the second indictment. Again, Connie misses the mark. Any irregularity in an original indictment has no effect on a subsequent indictment. See id. (citing United States v. Senak, 477 F.2d 304, 306 (7th Cir.1973) (“[a] federal grand jury may return a second indictment for the same offense when the first indictment has been dismissed or otherwise found defective”)). C. 18 U.S.C. § 201(c) George argues that his conviction should be vacated on the basis that law enforcement agents impermissibly promised witnesses leniency and paid their expenses in exchange for their testimony against him. George filed such a motion in the district court approximately five months after his trial, based on the Tenth Circuit’s panel decision in United States v. Singleton, 144 F.3d 1343 (10th Cir.1998) (<HOLDING>), vacated, 165 F.3d 1297 (10th Cir.) (en banc), Holdings: 0: holding that 18 usc  1919 did not implicitly repeal 18 usc  1001 1: holding that a voluntary and knowing plea agreement is equivalent to a contract and the promises stated within must be fulfilled by the parties 2: holding a party breaches a plea agreement by acting in a manner not specifically prohibited by the agreement but still incompatible with explicit promises made in the agreement 3: holding that promises made in a plea agreement could violate 18 usc  201c 4: holding that a merger clause normally prevents a criminal defendant who has entered into a plea agreement from asserting that the government made oral promises to him not contained in the plea agreement itself


Input: required more than just consistency between her oral testimony and her written application. It required corroborative evidence for virtually every significant instance of persecution to which Petitioner testified. We now turn to her second argument regarding the BIA corroboration rule. If we agree with the BIA, we do not need to reach the first issue; we need only determine whether the BIA’s corroboration requirement is correct. Petitioner asks this Court to adopt the Ninth Circuit’s view on corroboration, which expressly rejects the BIA corroboration rule in cases in which testimony of an applicant is credible although it would permit the application of the rule where the applicant’s credibility is questioned or adversely determined. See Ladha v. INS, 215 F.3d 889, 901 (9th Cir.2000) (<HOLDING>). We are not persuaded by the Ninth Circuit Holdings: 0: holding that when the ij has reason to question an aliens credibility material and easily available corroboration may be required 1: recognizing that consistent detailed and credible testimony may be sufficient to carry the aliens burden 2: holding that the burden is on the plaintiff to allege facts sufficient to establish jurisdiction 3: holding that an aliens testimony if unrefuted and credible direct and specific is sufficient to establish the facts testified without the need for any corroboration 4: holding the question of whether an accomplice is credible and the weight to be given to the testimony are issues for the jury to determine


Input: of an alleged party “is a question of fact”). The trial court correctly noted that the mere signing of an agreement as a corporate officer does not impose personal liability on that officer, citing Delta Air Lines, Inc. v. Wilson, 210 So.2d 761, 763 (Fla. 3d DCA 1968) (“It has been established that the signature of a corporate officer placed under the name of the corporation and preceded by the word ‘By’ does not create personal liability.”). Unlike the situation in Wilson in which the “parties to the contract are clearly set out in the body of the contract,” id., the agreement at issue states at the outset that it is “between BugWare, Inc. ... and Michael J. Williams of Williams Environmental & Geological Services, LLC,” thereby creati Inc., 763 So.2d 508, 509 (Fla. 4th DCA 2000) Holdings: 0: holding officer personally liable because he agreed to personally guarantee payment on an account 1: holding company president personally liable pursuant to language in contract stating that if companys net worth is reduced in excess of ten percent 10  then it is agreed that the company president shall guarantee the shortfall 2: holding that plaintiffs failure to mention vice president of thirdparty company in initial disclosures was harmless because plaintiffs mentioned president of company and defendants conducted no discovery of company 3: holding company president personally liable after he gave a personal guarantee that 250000 will be paid 4: holding that president of company who breached fiduciary duty in purchasing stock was properly required to pay damages rather than transfer shares back to company


Input: the merits, rejecting the defendants’ argument that those claims were jurisdictionally barred by the exclusivity provisions of ORS 34.020. Id. at 383. On appeal, we addressed the defendants’ cross-assignment of error that the trial court lacked jurisdiction to adjudicate the merits of the state law claims for declaratory and related injunctive relief. We began by determining that the predicate disciplinary decision was quasi-judicial. Id. at 384. We then stated: “[T]his case is not one in which review under ORS 34.010 to ORS 34.102 was unavailable had it been timely filed, or a case in which another specific statutory or a common-law remedy exists for which there is jurisdiction over the cause. See Shockey v. City of Portland, 313 Or 414, 837 P2d 505 (1992), cert den 507 US 1017 (1993) (<HOLDING>); see also Ettner v. City of Medford, 155 Or Holdings: 0: holding that court had no supplemental jurisdiction over claim by shareholder for breach of merger agreement that was the subject of the dispute between the merger partners over which the district court had subject matter jurisdiction 1: holding that the trial court had subject matter jurisdiction over a commonlaw wrongful discharge claim 2: recognizing cause of action for wrongful discharge 3: holding that the information must establish that the court has jurisdiction over both the subject matter and the parties 4: recognizing tort of wrongful discharge


Input: form when it enacted §§ 537.600 to 537.650, RSMo.1978. Section 537.600 “expressly waived immunity for (1) torts arising out of governmental operation of motor vehicles; and (2) dangerous condition S.W.2d 2, 11-12 (Mo.App.1983) (finding no dangerous condition in absence of security guard from his post in hospital parking lot where plaintiff was raped; no allegation of physical defect of property was made). In the second line of cases, Missouri courts began relaxing the physical defect standard holding that the physical deficiency in a public entity’s property could constitute a dangerous condition if the dangerous condition was created by positioning various objects on the property and not by intrinsic defects in the property. See Alexander v. State, 756 S.W.2d 539, 542 (Mo. banc 1988) (<HOLDING>); Jones v. St. Louis Housing Auth., 726 S.W.2d Holdings: 0: holding that where notice of deficiency fails adequately to describe the basis on which the commissioner relies for his deficiency determination burden shifts to the commissioner to prove the accuracy of the deficiency determination 1: holding construction company had actual notice of dangerous condition that its employees created 2: holding that a second deficiency notice issued for a taxable year was valid where it determined a deficiency in a different type of tax than did the earlier deficiency notice 3: holding that contractor owed general negligence duty to thirdparty by dangerous condition contractor created on road 4: holding that the negligent placement of a folding room partition at the foot of a ladder on which plaintiff was working created a physical deficiency which constituted a dangerous condition


Input: of Oklahoma could pay off whenever it wishes. See Glenpool, 861 F.2d at 1216. In addition to this argument, Logan-1 offers an alternative argument in support of its claimed § 1926(b) protection from competition. Logan-1 asserts that, even if its loans incorporating the § 1926(b) protection are contrary to Okla. Const, art. 5, § 51, Oklahoma recognizes exceptions to that state constitutional prohibition that would apply in this case. In Glenpool, for instance, this court noted that “Oklahoma case law contains clear reference to exemptions from article 5, § 51 on the basis of police power needed for the public interest, and on the basis of status as a state ‘agency.’ ” 861 F.2d at 1216 n. 2 (citations omitted); see also Kimery v. Pub. Serv. Co. of Okla., 622 P.2d 1066, 1071 (Okla.1980) (<HOLDING>); Estate of Cabelka ex rel. Cabelka v. Comanche Holdings: 0: holding that  841bls mandatory minimum provisions were rationally related to the objectives of protecting public health and welfare 1: holding that a police sergeants testimony in a class action discrimination lawsuit addressed a matter of public concern regardless of the specific content of the testimony or its impact on the outcome of the suit 2: holding the illinois statute unconstitutional as violating a special legislation proscription 3: holding in applying okla const art 5  51 that where a statute touches upon the public health and welfare the statute cannot be deemed unconstitutional class legislation even though a specific class of persons or businesses is singled out where the legislation in its impact is free of caprice and discrimination and is rationally related to the public good 4: holding that where an ambiguity exists in fact or by construction it is proper to consider the history of the legislation


Input: with the reasoning of the Minnesota Supreme Court in Shriner. Dale's case, likewise, is not about a routine arrest for driving under the influence. Alaska Statute 28.35.031(g) only authorizes law enforcement to obtain a blood sample in cireumstances that involve a motor-vehicle accident that causes death or serious physical injury. We believe that the Minnesota Supreme Court in Shriner made a strong argument for concluding that, when a case involves death or serious physical injury, exigent circumstances exist as a matter of law. Conclusion We accordingly conclude that Judge Smith correctly ruled that exigent cireumstances authorized the police to obtain a nonconsen-sual, warrantless sample of Dale's blood. Judge Smith did not err in denying Dale's motion to suppress. The ju 9 (1993) (<HOLDING>). 10 . See, e.g., People v. Shepherd, 906 P.2d Holdings: 0: holding that independent of the implied consent law the fourth amendment requires an arrestees consent to be voluntary to justify a warrantless blood draw 1: holding that the dissipation of alcohol from a persons blood stream constitutes a sufficient exigency to justify a warrantless blood draw 2: holding that blood alcohol dissipation was not sufficient by itself to create an exigent circumstances exception to virginia statutory requirement that the driver be arrested within three hours of the offense 3: holding that in drunkdriving investigations the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant 4: holding that warrantless blood draw did not violate the defendants constitutional rights and citing as only exigency the fact that alcohol in blood is quickly consumed and the evidence would be lost forever


Input: not err in granting the defendants’ motion. C. Lastly, Kibwika contends that the district court erred in dismissing his state law claims. He argue, for the first time on appeal, that violations of the Florida Constitution and the Florida Model Jail Standards give rise to a § 1983 claim because the violations deprive him of liberty interests protected by the Due Process Clause of the Fourteenth Amendment. But in his complaint, Kibwika clearly invoked the court’s “pendent jurisdiction” when asserting his state-law claims. Because Kibwika makes his § 1983 claim based on alleged state-law violations for the first time on appeal, we will not consider it absent special circumstances, which Kbwika does not allege exist in this case. See Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994) (<HOLDING>). Accordingly, the district court properly Holdings: 0: recognizing its discretionary authority to depart from the general practice of refusing to consider an issue raised for the first time on appeal such as  where the interest of substantial justice is at stake  or  where the proper resolution is beyond doubt  1: holding that this court will not consider a theory or issue that was not pleaded or raised in the trial court 2: holding that the court will not consider an issue not raised in the district court unless 1 it involves a pure question of law and refusal to consider it would result in a miscarriage of justice 2 the party raising the issue had no opportunity to do so before the district court 3 the interest of substantial justice is at stake 4 the proper resolution is beyond any doubt or 5 the issue presents significant questions of general impact or great public concern 3: holding that our court will not consider an issue of whether a defendant has standing to seek suppression of evidence if the issue was not raised in the lower court 4: recognizing the general rule that a court of appeals will not consider an issue raised for the first time on appeal


Input: of the mobile home. Grand Manor contracted with Better Cents to manufacture a mobile home for the Dykeses according to their specifications. Therefore, because it was foreseeable that the Dykes-es would be injured if Grand Manor negligently performed its contractual obligations, Grand Manor owed a duty to the Dykeses to manufacture the home with reasonable care. Grand Manor also argues that the Dykeses cannot recover against Grand Manor for negligent manufacture because, it says, the only “injury” was to the mobile home itself. Grand Manor is correct in stating the rule of Alabama law that one cannot recover in tort for negligent manufacture of a product where the only injury is to the product itself. See Dairyland Ins. Co. v. General Motors Corp., 549 So.2d 44, 46 (Ala.1989) (<HOLDING>). Grañd Manor asserts that the Dykeses made no Holdings: 0: holding that the trial court correctly entered summary judgment in favor of defendant and denied plaintiffs motion for summary judgment where plaintiff failed to establish by clear and convincing evidence that defendant breached its duty to act in good faith 1: holding that a grant of summary judgment in favor of one party creates a final judgment allowing appellate review of denial of opposing partys summary judgment motion 2: holding that a summary judgment in favor of the manu facturer and the dealer was proper as to a van buyers negligentmanufacture claims because under alabama law one cannot recover in tort for damage to the product itself 3: holding that summary judgment in favor of the defendant was appropriate because the plaintiff failed to designate evidence that demonstrates that the defendant abused the qualified privilege 4: holding that the time of discovery of fraud is not a proper matter for summary judgment


Input: felony murder, the more likely he acted with reckless indifference to human life.”). 18 . Tison, 481 U.S. at 148, 107 S.Ct. 1676. 19 . Id. at 157, 107 S.Ct. 1676. 20 . 18 U.S.C. § 3596(a). 21 . Tex. Crim Proc. Code § 43.14 (Vernon 2005). 22 . Jones, 527 U.S. at 381, 119 S.Ct. 2090. 23 . Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994). 24 . Id. See also Jones, 527 U.S. at 402, 119 S.Ct. 2090 (noting that an aggravating factor is unconstitutionally overbroad if a jury could consider it to apply to every defendant who is eligible for the death penalty). 25 . See Tuilaepa, 512 U.S. at 973, 114 S.Ct. 2630 (noting that the underlying principle in making the cap at a victim vulnerability aggravator that provided that the adult victim was esp 4 (10th Cir.1997) (<HOLDING>). 37 . 428 U.S. 262, 277, 96 S.Ct. 2950, 49 Holdings: 0: holding that a statute must burden a substantial amount of protected speech to be unconstitutionally overbroad 1: holding that washingtons harassment statute was unconstitutionally overbroad because it covered constitutionally protected speech 2: holding with little discussion that the oklahoma future dangerousness aggravator was not applicable to every murderer and therefore was not unconstitutionally overbroad 3: holding new yorks disclosure law unconstitutionally overbroad 4: holding that shank possession combined with threats was sufficient to show future dangerousness under virginia law and therefore petitioner did not demonstrate prejudice for strickland purposes


Input: for injuries caused by defective repairs. Tuomey Regional mentions some of the above cases and argues they are distinguishable because in this case it is the independent-contractor physician — not the hospital — who controls a patient’s medical treatment. Tuomey Regional also contends regulations promulgated by the state Department of Health and Environmental Control do not impose such a duty. We find Tuomey Regional’s arguments unpersuasive. The cited cases clearly illustrate that a person or entity entrusted with important duties in certain circumstances may not assign those duties to someone else and then expect to walk away unscathed when things go wrong. A principle that applies in case (2000); Irving v. Doctors Hosp. of Lake Worth, Inc., 415 So.2d 55, 59 (Fla.Dist.Ct.App.1982) (<HOLDING>); Martell v. St. Charles Hosp., 137 Misc.2d Holdings: 0: holding that the special duty doctrine as an exception to the public duty doctrine was a concept distinct from immunity and did not serve to resurrect an otherwise immune claim 1: holding that jury should have been instructed on nondelegable duty doctrine as well as apparent agency doctrine when patient alleges malpractice by emergency room physician 2: recognizing doctrine 3: recognizing the doctrine of collateral estoppel in agency proceedings 4: holding that no structural error occurs where a jury is instructed on alternative theories of guilt and the defendant alleges that the jury relied on an invalid theory


Input: the House of Correction, in October 1997 while the harassment was ongoing. Feeney testified at trial that “there are some officers that are reluctant to report things, and when they do, they’re evasive and vague in their reports.” Baron’s attorney then asked Feeney to read from his earlier deposition, in which the following exchange took place: Q: Are you aware of any code of silence between fellow officers reporting violations on each other? A: Yes. Q: What is it, the code of silence? A: Lack of reporting to protect each other. Q: When Officer Baron reported Sergeant Curtis, did he violate that? A: Yes. Feeney was then asked if there would be consequences if ah officer were to report another officer. He answered, “There could be.” Cf. Sharp v. Houston, 164 F.3d 923, 935 (5th Cir.1999) (<HOLDING>). Feeney also testified that Baron had Holdings: 0: recognizing that a code of silence can be perpetuated only if there is retaliation for violations of it 1: holding that there can be only one final appealable order 2: recognizing first amendment retaliation right 3: holding that interference and retaliation are two separate theories that can be advanced under the fmla and that termination is evidence of retaliation 4: recognizing that code is speech


Input: from liability for the alleged fabrication of evidence because they did not have probable cause to arrest or to initiate judicial proceedings. Id. at -, 113 S.Ct. at 2616. “Their mission at that time was entirely investigative in character. A prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.” Id. The Court emphasized that the alleged fabrication occurred before a grand jury was convened and that when the grand jury eventually was convened, “its immediate purpose was to conduct a more thorough investigation of the crime — not to return an indictment against a suspect whom there was already probable cause to arrest.” Id. The Court also held that a prosecutor is not absolutely immune from liability for maki ) (<HOLDING>). Valder, however, has not met his burden of Holdings: 0: holding the prosecutor is required to present exculpatory evidence to the grand jury 1: holding that prosecutors are absolutely immune from liability for their knowing or inadvertent failure to disclose materially exculpatory evidence 2: holding absolute immunity protects prosecutor from liability for withholding exculpatory evidence from grand jury 3: holding that a prosecutors decision whether or not to give defense counsel evidence alleged to be materially exculpatory which was either discovered after the  1983 plaintiffs arrest but before his conviction or while the prosecutor was still functioning as an advocate for the state in posttrial motions and preparations for appeal is clearly part of the presentation of the states case and therefore a prosecutor is absolutely immune from liability for failure to turn over evidence 4: holding absolute immunity protects prosecutor from liability for failing to give defense counsel materially exculpatory evidence


Input: or the proffered extra-record evidence before the court.”). The threshold showing made by the protestor must be “strong,” Pitney Bowes Gov’t Sols., Inc., 93 Fed.Cl. at 332, “based on hard evidence,” Int’l Res. Recovery, Inc., 61 Fed.Cl. at 43, and “well grounded,” id. See also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (remarking that “there must be a strong showing of bad faith or improper behavior before” a court can permit “the administrative officials who participated in the decision to give testimony explaining their action”), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1323 n.2 (Fed. Cir. 2003) (<HOLDING>); Impresa Construzioni Geom. Domenico Garufi v. Holdings: 0: holding the trial court abused its discretion by refusing to allow a question seeking to determine bias or prejudice in favor of the victim because she was a nun 1: holding evidence insufficient to overcome presumption of correctness 2: holding that the district court did not err by refusing to allow the defendant to absent himself from the trial at which his identification would be an integral issue 3: holding that the trial court did not err in refusing to allow discovery on the issue of bias because there was no evidence in the administrative record showing bias and because allegations of error in the evaluation of proposals are insufficient to overcome the presumption that the contracting officer acted in good faith 4: holding that where the record is insufficient to show that the alleged error occurred the presumption that the trial court acted without error must prevail


Input: these and other prosecutions where the only evidence of the defendant’s guilt is circumstantial. In addition to the infirmities in the substance of the “reasonable speculation” rule, the panel’s use of another circuit court’s precedent to grant habeas relief is troubling given AEDPA’s requirement that the state court’s error be measured against “clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1) (emphasis added). Indeed, the Supreme Court has repeatedly cautioned that if it has not recognized a particular circuit court legal standard, a state court’s failure to follow that standard cannot compel the grant of habeas relief. See, e.g., Knowles v. Mirzayance, — U.S. -, -, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251 (2009) (<HOLDING>); Carey v. Musladin, 549 U.S. 70, 76-77, 127 Holdings: 0: holding that federal habeas relief is unavailable based upon the application of a specific legal rule that has not been squarely established by this court 1: holding that federal habeas relief is not available to correct errors of state law 2: holding that the federal habeas courts task is to determine if the state courts decision was contrary to or involved an unreasonable application of clearly established federal law as determined by the supreme court of the united states 3: holding that when a state court adjudication is contrary to clearly established supreme court precedent this court must review de novo whether petitioner is entitled to habeas relief 4: holding that habeas is unavailable where the court of appeals could have heard the claims presented through another avenue of relief


Input: in light of Padilla ... the distinction in Pennsylvania between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland ... is appropriate?" 8 . Certainly, there are numerous instances when the Pennsylvania appellate courts have found counsel to be ineffective under the ambit of Strickland. See, e.g., Commonwealth v. Flanagan, 578 Pa. 587, 854 A.2d 489 (2004) (guilty plea counsel was ineffective in failing to object to a patently defective guilty plea colloquy); Commonwealth v. Brooks, 576 Pa. 332, 839 A.2d 245 (2003) (under Strickland, counsel's failure to meet in person with the defendant before trial constituted ineffective assistance of counsel); Commonwealth v. McClellan, 887 A.2d 291 (Pa.Super.2005) (<HOLDING>); Commonwealth v. Corley, 816 A.2d 1109 Holdings: 0: recognizing that strickland applies to ineffective assistance of appellate counsel claims 1: holding that the prejudice prong of strickland was not met in a claim of ineffective assistance of counsel for failing to object to the prosecutors misstatement of law where the trial court properly instructed the jury 2: holding that in order to state a claim for ineffective assistance of counsel based on the failure to call a witness to testify the claimant must allege 1 the identity of the potential witness 2 that the witness was available to testify at trial 3 the substance of the witnesss testimony and 4 an explanation of how the omission of the testimony prejudiced the case 3: holding that the strickland test applies to claims  that counsel was constitutionally ineffective for failing to file a notice of appeal 4: holding that under the ambit of strickland counsel was ineffective in failing to provide in a timely manner the identity and opinion of an expert witness who tended to prove the defendants alibi defense


Input: Complaint in this Court. Defendant now moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) as barred by the doctrine of res judicata. For the reasons stated below, Defendant’s motion is GRANTED. I. BACKGROUND A. FACTS AND PROCEDURAL HISTORY The facts summarized below are taken primarily from the Complaint dated October 18, 2007, which the Court accepts as true for the purpose of ruling on the motion to dismiss. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002) (citing Gregory v. Daly, 243 F.3d 687, 691 (2d Cir.2001)). Falardo, who is disabled, was a police officer with the NYPD- from Jun 639 N.E.2d 417 (N.Y.1994); see also McDonough v. City of New York, No. 99 Civ. 12307, 2000 WL 1804137, at *5 (S.D.N.Y. Nov. 26, 2000) (<HOLDING>); Ryan v. Board of Tr. of the Police Officer’s Holdings: 0: holding that claims to the vsf benefits under various theories were barred by the res judicata effect of the state court judgment in castellano iii 1: holding that the plaintiffs due process claims were completely barred by res judicata because the underlying factual predicate for each of these claims  is substantially identical to the allegations presented in state court 2: holding that lender liability claims are noncore and thus not barred by res judicata effect of bankruptcy proceedings 3: holding that plaintiffs could not relitigate their claim that they were entitled to vsf benefits and that while plaintiffs could have raised additional claims in one or more of the foregoing actions they opted not to do so and they are barred by res judicata from doing so now 4: holding that the plaintiffs claims were barred by res judicata when the federal courts judgment was finalized by denial of his petition for certiorari


Input: the Anti-Drug Abuse Act of 1986, which includes § 841 and its maximum lifetime term of supervised release for drug offenses. In addition, as the government contends, whether Mr. Handley faces a lifetime of supervised release depends on his own conduct and any future violations of the conditions of his supervised release. In other words, compliance is a means to avoid “the infinitely reoccurring prison and supervised release terms” of which Mr. Handley comp 9th Cir.1997) (adopting reasoning drug offenses under § 841 are an exception to terms of supervised release listed in § 3583(b)); United States v. Eng, 14 F.3d 165, 172-73 (2d Cir.1994) (stating § 841(b)(1)(A), which deals with drug offenses, is exception to § 3583(b)); United States v. LeMay, 952 F.2d 995, 998 (8th Cir. 1991) Holdings: 0: holding that prior drug convictions that were four ten and eleven years old were not so remote from the charged drug offenses as to render them inadmissible 1: recognizing conflict 2: recognizing the conflict 3: holding phrase except as otherwise provided was added to  3583b so it would not conflict with the drug offenses in  841b1a 4: holding that drug offenses and taxevasion offenses were properly joined for trial because the likely source of income for which defendant had evaded taxes was drug distribution


Input: encourages "the reduction to writing of certain types of agreements which are particularly ephemeral of proof, or into which a party is particularly likely to enter in a thoughtless or perfunctory manner.” Thompson v. Stuckey, 171 W.Va. 483, 485, 300 S.E.2d 295, 297 (1983). The statute provides that "[n]o action shall be brought ... [u]pon any agreement that is not to be performed within a year; [ujnless the promise, contract, agreement, representation, assurance, or ratification, 'or some memorandum or note thereof, be in writing and signed by the party to be charged or his agent.” W. Va.Code § 55-1-1; see also Fry Racing Enters., Inc. v. Chapman, 201 W.Va. 391, 393, 497 S.E.2d 541, 543 (1997) (enforcement of oral contract barred by statute of frauds requirement 8, 365 at 667 (<HOLDING>). 20 . The City has not submitted this issue as Holdings: 0: holding that city is permitted to unilaterally modify its longheld policy concerning overtime pay provided it notifies its employees of the change 1: holding that an agreement was procedurally unconscionable because job applicants were not permitted to modify the agreements terms  they had to take the contract or leave it 2: holding that an agreement to arbitrate is illusory if as here the employer can unilaterally modify the contract 3: holding that a court is without authority to modify its spousal support decree retroactively and relieve a party of the obligation to pay past due installments 4: holding that there is no common law duty of a carrier or its agents to advise an insured concerning the possible need for higher policy limits upon renewal of the policy absent a special relationship


Input: 115 S.Ct. 1624. This is not to say that the Supreme Court foreclosed all economic reasoning done in the aggregate. In fact, the Supreme Court made it clear that it was not adopting a “categorical rule against aggregating the effects of any non-economic activity.” Id. at 613, 115 S.Ct. 1624. Instead, the Court noted that its precedent has upheld Commerce Clause regulation of intrastate activity “only where that activity is economic in nature.” Id. (citing Lopez, 514 U.S. at 559-60, 115 S.Ct. 1624). The regulation at issue here is “economic in nature.” Section 3631 was passed as part of the Fair Housing Act, the Fair Housing Act applies to the housing market, and the housing market is both commercial and interstate. See Oxford House-C v. City of St. Louis, 77 F.3d 249, 251 (8th Cir.1996)(<HOLDING>); Seniors Civil Liberties Assoc., Inc. v. Kemp, Holdings: 0: holding that the government can satisfy the hobbs act interstate commerce requirement by showing that the robbery resulted in the closure of a business engaged in interstate commerce 1: holding that housing discrimination has a substantial effect on interstate commerce 2: holding that commerce clause authorizes congress to punish any particular criminal action even without proof of a relation to interstate commerce when the activity is part of a class of activities determined by congress to affect interstate commerce 3: holding that statute which prohibited gun possession near a school zone exceeded congresss authority under the commerce clause because the statute did not regulate activity that had a substantial effect on interstate commerce 4: recognizing that  the interstate nexus requirement is satisfied by proof of a probable or potential impact on interstate commerce