Short Form: 3/11

Second Circuit:

United States of America v. Foreste -- 4A: Successive investigatory stops should be considered together where the probable cause for the stop and the basis for extending the stop are the same.  Where the reason for extending the duration of the stop is different (as here), they may be considered separately;  field performance reports of canine units are relevant and susceptible to discovery requests.

Stryker v. Securities and Exchange Commission -- Administrative Law: Chevron deference to SEC holding that a pre-statute tip is ineligible for a reward under the statute.  Alternative holding: statute not ambiguous.  

Rivas v. Fischer -- Habeas ordered on remand, as no reasonable finder of fact could determine that counsel was not ineffective.


Third Circuit:

Ashley McMaster v. Eastern Armored Services Inc -- FLSA -- Employee is subject to the Act and therefore eligible for overtime, as she is within the small-truck correction to the truck driver carve-out in the Act.

Fourth Circuit:

Fraternal Order of Police v. WMATA -- Subsequent unrelated dismissal of employee ordered reinstated by arbitration does not violate the arbitration order; Grievances should first be addressed by the mechanism in the collective bargaining agreement.

Alfredo Prieto v. Harold Clarke  --  Due Process: Prisoner does not have liberty interest sufficient to challenge harsh and atypical conditions on "Death Row," as there is no valid expectation of avoiding these conditions when sentenced for a capital crime.


Sixth Circuit:

USA v. Manuel Soto 

 USA v. Hector Santana 

 USA v. Christopher Espinoza

USA v. Juan Respardo-Ramirez


Seventh Circuit:


Scott Reeder v.  Michael Madigan


Saley Souley v. Eric Holder, Jr.


Eighth Circuit (Summaries from Court):

131748P.pdf  03/11/2015  United States  v.  Arthur Chappell
   U.S. Court of Appeals Case No:   13-1748
   U.S. District Court for the District of Minnesota - St. Paul   
   [PUBLISHED] [Riley, Author, with Smith and Shepherd, Circuit Judges] 
   Criminal case - Criminal law. For the court's prior opinion remanding the 
   case for a new trial based on an error in the jury instructions, see U.S. 
   v. Chappell, 665 F.3d 1012 (8th Cir. 2012). On remand, the district court 
   did not abuse its discretion by denying defendant's motion to reopen the 
   record on the issue of probable cause for defendant's arrest; police had 
   probable cause to arrest defendant even if the issue were reopened; claim 
   of vindictive prosecution rejected, as the new charges added after remand 
   concern different criminal acts against mostly difference victims. 

141619P.pdf  03/11/2015  St. Jude Medical S.C., Inc.  v.  Thomas Tormey, Jr.
   U.S. Court of Appeals Case No:   14-1619
   U.S. District Court for the District of Minnesota - Minneapolis   
   [PUBLISHED] [Bye, Author, with Riley, Chief Judge, and Wollman, Circuit 
   Judge] 
   Civil case - Contracts. Because plaintiff failed to present evidence that 
   a claimed "walk-away"agreement releasing him from liability to repay a 
   loan was in writing as required by Minn. Stat. Sec. 513.33, the district 
   court did not err in granting defendant judgment as a matter of law on 
   this defense or on its collection claim; plaintiff's counterclaims were 
   time-barred; plaintiff failed to object under Fed. R. Civ. P. 72(a)to the 
   magistrate's order denying certain of his discovery requests, and the 
   court was without jurisdiction to review the issue. 




Ninth Circuit:


CPR FOR SKID ROW V. CITY OF LOS ANGELES


AIRCRAFT SERVICE INT'L V. WORKING WASHINGTON


MARGARET RUDIN V. CAROLYN MYLES


NRDC V. USEPA


CHRIS TAYLOR V. JOHN CHIANG



Federal Circuit:


AMERGEN ENERGY COMPANY, LLC v. US 



DC Circuit:




Stone & Webster, Inc. v. Georgia Power Company


Airlines for America v. TSA


Meina Xie v. John Kerry

Fifith Circuit: Thomas Loden, Jr. v. Rick McCarty

Ineffective Assistance / AEDPA

Lower court findings get AEDPA deference when higher state courts don't review the question.

Deft waiver of mitigation phase need not be informed and knowing.

Thomas Loden, Jr. v. Rick McCarty

[Death penalty is wrong.  -MB]

Fourth Circuit: Jerome Gordon v. Daniel Braxton

Ineffective Assistance

District Court abused discretion in giving AEDPA deference to state court proceeding that made only a cursory review of the record in response to Petitioner claims that he was never consulted about an appeal.

Jerome Gordon v. Daniel Braxton

Second Circuit: Johnson v. United States

Subsequent vacatur of on-point predicate conviction count doesn't bar the subsequent ACCA sentencing bump, as the statute merely requires that the offense be committed, not that the deft be convicted of it, and the other (non-vacated) counts can encompass the valid predicate offense.

No Ineffective Assistance as to that sort of stuff.

Johnson v. United States

Ninth Circuit: JAVIER MARTINEZ-HERNANDEZ V. ERIC HOLDER, JR.

Immigration: No Ineffective Assistance where Petitioner didn't make showing of likely relief.

JAVIER MARTINEZ-HERNANDEZ V. ERIC HOLDER, JR.

First Circuit -- US v. LaPlante

Fraudulent misrepresentation theory of mail fraud does not add an element of misrepresentation to the common-law elements of mail fraud.

No need for unanimity jury  instruction as to which statement in particular was fraudulent.

No ineffective assistance claim based on deft's introduction of prior bad acts, as other evidence was overwhelming.

US v. LaPlante 

Fifth Circuit -- Ray Miller v. Rick Thaler, Director

Habeas / AEDPA --

Denial of attempt to go pro se / Ineffective Assistance.

Ray Miller v. Rick Thaler, Director

Seventh Circuit -- Solomon Monroe v. Randy J. Davis

Denial of Habeas --

As appellate holding was consistent with time of arrest stipulated to by the parties, the state courts gave the question a full and fair adjudication, despite error by trial court.

No ineffective assistance, as the putative additional witness wouldn't have done much for the case.

Conviction of murder on accountability theory upheld, as the deft's gang had a preexisting common plan to harm the victim.

Solomon Monroe v.   Randy J. Davis

Second Circuit -- Gallagher v. United States

New Scotus holdings on plea-stage Ineffective Assistance were not made retroactive to cases pending on collateral appeal.

Gallagher v. United States

Eleventh Circuit - Seburt Nelson Connor v. Secretary, Florida Department of Corrections, et al

No error in denial of competency hearing, as the challenge is entirely record-based, and the underlying claims were reviewed in state Habeas with an implicit determination of sufficient competence.  No statutory right to establishment of competency for collateral challenges.  AEDPA deference.

Ineffective Assistance claim properly denied, as not presenting cumulative evidence in mitigation doesn't establish Ineffective Assistance, and there was no showing of outcome-determinancy.

Seburt Nelson Connor v. Secretary, Florida Department of Corrections, et al

[thou shalt not kill.  -MB]

Sixth Circuit -- Henry Hodges v. Roland Colson

Denial of Habeas upheld.

Trial court had discretion to bar voir dire question asking about defts with murder priors, as deft had murder priors.

Claim that juror voted because of arthritis pain procedurally defaulted, as no there was cause for omission of claim in state Habeas.

Plea-stage ineffective assistance (deft pled to qualifying offense) defaulted as to facial invalidity; as to Strickland, pleading could have been a strategic choice.  No prejudice.

No error in denial of hearing on competency and ineffective assistance.

Henry Hodges v. Roland Colson 

[Thou shalt not kill.  -MB]

Ninth Circuit -- KEVIN MILES V. CHARLES RYAN

Habeas denial upheld, as omission of addiction evidence might have been a strategic choice, as it would undercut the clean-cut image.

Dissent: Lack of investigation of deft's history.

KEVIN MILES V. CHARLES RYAN

[thou shalt not kill.  -MB]

Seventh Circuit -- USA v. Guy Westmoreland

No 6A violation in 8 year delay in FRCrimP Rule 33 motion -- no prejudice, and no chance of being freed sooner on reversal, given unchallenged counts.

No violation of right to counsel for collateral challenge filed simultaneously with (represented) direct appeal, as counsel was free to decline to help with unwise motion.

USA v.   Guy Westmoreland

Ninth Circuit -- GULBRANDSON V. RYAN

Denial of Habeas upheld.

Not calling a certain guilt-stage witness was possibly a strategic call, as it might have caused prejudice against deft -- therefore not an unreasonable application of Strickland.

Not recalling medical expert at penalty phase -- same.

Not recalling medical expert in penalty phase was waived in state Habeas -- raising another issue from the same affidavit was not enough to trigger state review.

No error in denial of evidentiary hearings for Federal Habeas.

Victim impact evidence not unduly prejudicial.

Second/successive denied as (1) not new; (2) reasonable factfinders can disagree.

DISSENT: Further exploration on not recalling the medical expert.



GULBRANDSON V. RYAN

Sixth Circuit -- Karen Howell v. Reuben Hodge

Denial of habeas for ineffective assistance, as no prejudice, given bias of state law against diversion to mental health system.

Concur: State record is well developed.  [Maybe.  Quick skim.]

 Karen Howell v. Reuben Hodge 

Ninth Circuit -- MARVIN WALKER V. MICHAEL MARTEL

Reverasal of Habeas grant for Ineffective Assistance -- shackling under clothing was visible to jury, but insufficient prejudice.

Dissent -- Should redo the penalty phase.

MARVIN WALKER V. MICHAEL MARTEL

Third Circuit -- Taibu Grant v. Melvin Lockett

No Brady claim on Habeas, as opposing witness' priors could have been discovered with reasonable diligence.

Granted for Ineffective Assistance on same grounds, though.

Taibu Grant v. Melvin Lockett

Fourth Circuit -- US v. Michael Bernard

Standard for mentally trouble deft to go pro se is whether they have the wits to waive counsle, not the wits to  represent themselves.

Dissent -- Trial court understood this to be a mandatory rule, and didn't look to see whether further, permissive scrutiny should have been applied.

US v. Michael Bernard

Seventh Circuit -- Dishon McNary v. Marcus Hardy

Denial of ineffective assistance Habeas claims -- (1) no prejudice; (2) state court assessment of counsel's strategic choices was reasonable; (3) specific situation underlying the claim wasn't raised in state collateral challenge ; (4) (Appellate) Strategic choice call by state review was reasonable.

Dishon McNary v. Marcus Hardy

Sixth Circuit -- Lee Moore v. Betty Mitchell

Reversal of Habeas grants as - more or less - (1) procedurally defaulted, since state court holding that there was no prejudice is upheld under 'AEDPA deference'; (2) Habeas record here can't look beyond trial record.

[There's more here, but we're in a hurry.  As always, entertainment value only.  MB]

Lee Moore v. Betty Mitchell