U.S. Eleventh Circuit - The FindLaw 11th Circuit Court of Appeals Opinion Summaries Blog

June 2010 Archives

Randall v. Scott, No. 09-12862, involved a 42 U.S.C. section 1983 First Amendment retaliation claim by a terminated law enforcement officer.  The Eleventh Circuit affirmed in part the dismissal of the complaint on the ground that the right to run for office was not clearly established at the time of the complaint.  However, the court reversed in part on the ground that the district court erred in applying a heightened pleading standard to plaintiff's First Amendment claim.

Thompson v. RelationServe Media, Inc., No. 07-13225, involved an action claiming that defendants failed to disclose, before their company went public, that $2,000,000 in stock had been privately offered for sale by unregistered brokers in ten different states.  The court of appeals affirmed the dismissal of the complaint on the ground that the complaint failed to satisfy the standard for pleading scienter.  However, the court vacated the denial of defendant's motion for sanctions, to allow the district court to make findings in accordance with the Private Securities Litigation Reform Act.

In US v. Garcia-Cordero, No. 09-10292, the court of appeals affirmed defendant's alien smuggling convictions where, as applied to a defendant smuggling aliens, the "bring and present" requirement of 8 U.S.C. section 1324(a)(2)(B)(iii) did not violate the Fifth Amendment's privilege against self-incrimination.

In US v. Rothenberg, No. 08-17106, the court of appeals affirmed defendant's sentence for sexual exploitation of a minor and possession of child pornography, holding that there was no clear error in the district court's finding that defendant's chats crossed the line between sexual banter and criminal persuasion, inducement or enticement, and that he engaged in a pattern of activity involving prohibited sexual conduct justifying application of the enhancements provided for in U.S.S.G. sections 2G 2.2(b)(5) and 4B 1.5(b)(1).

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T.W. v. Sch. Bd. of Seminole Cty., Fla., No. 09-12623, involved an action claiming that defendant school board violated a disabled student's constitutional right to be free from excessive corporal punishment or discriminated against the student solely by reason of his disability, in violation of a federal statute, due to a teacher's physical and verbal abuse of the student on several occasions.  The Eleventh Circuit affirmed summary judgment for defendants, on the ground that the evidence overwhelmingly established that the teacher's use of force during the incidents at issue was related to the student's disruptive or self-injurious conduct and was for the purpose of discipline.

As the court wrote:  "This appeal presents the questions whether a teacher violated a disabled student's constitutional right to be free from excessive corporal punishment or discriminated against the student solely by reason of his disability, in violation of a federal statute, when the teacher physically and verbally abused the student on several occasions. The student, T.W., was enrolled for several months in Kathleen Garrett's autism class at a middle school in Seminole County, Florida. On a few occasions, Garrett physically restrained T.W. in response to his disruptive conduct. Garrett also occasionally called T.W. names, provoked him, and used profanity around him. There is evidence that Garrett's actions aggravated T.W.'s developmental disability, but there is no evidence that Garrett caused T.W. to suffer any serious physical injuries. T.W., by and through his mother, complained that Garrett and the School Board of Seminole County violated his rights under the Due Process Clause of the Fourteenth Amendment, 42 U.S.C. § 1983, and that the School Board discriminated against him because of his disability in violation of section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). The district court granted summary judgment in favor of Garrett and the School Board. Although the events that allegedly transpired in Garrett's classroom are troubling, we conclude that T.W.'s complaint that Garrett and the School Board violated his constitutional and federal statutory rights fails as a matter of law. We affirm the summary judgment in favor of Garrett and the School Board."

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Capital Habeas Matters

In Marshall v. Sec'y., Dept. of Corrs., No. 09-15419, a capital habeas matter, the court of appeals affirmed the denial of petitioner's habeas petition, holding that nothing in the record suggested that the state courts' application of the jury-override procedure was arbitrary or discriminatory or that such application produced an arbitrary or discriminatory death sentence.

In Vining v. Sec'y., Dept. of Corrs., No. 07-15681, a capital habeas matter, the court of appeals affirmed the denial of petitioner's petition, on the grounds that 1) no extra-record materials that the trial judge viewed were presented to the jury during the guilt or penalty phases; 2) the trial judge's experience with hypnosis, conversations with a psychologist, or familiarity with a book on the subject did not influence the jury or prejudice the petitioner because, according to Florida's law, the witnesses' testimony would have been admissible in any event; and 3) petitioner failed to demonstrate either deficient performance or prejudice in his ineffective assistance claims.

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In US v. Huff, No. 08-16272, the court of appeals affirmed in part defendant's convictions and sentences for bribery and conspiracy to commit wire fraud and bribery, holding that 1) the evidence was sufficient to establish a single conspiracy in this case, and there was no material variance between the indictment and the evidence presented at trial; and 2) the district court did not err in basing the loss amount on defendant's substantive counts of conviction only.  However, the court vacated in part, holding that the record did not explain how the district court reached its restitution figure.

Flava Works, Inc. v. City of Miami, No. 09-11264, involved an action challenging the Miami Code Enforcement Board's final administrative ruling that plaintiffs were engaged in "adult entertainment" in an inappropriate zone and "illegally operating a business in a residential zone."  The court of appeals reversed judgment for plaintiffs, on the ground that the activities taking place at the residence at issue were a clear violation of the prohibition against operating a business in a residential zone.

In US v. Alexander, No. 08-17062, the court of appeals affirmed defendant's sentence for being a felon in possession of a firearm, on the grounds that 1) a conviction under Fla. Stat. section 790.15(2) involved conduct that was "similar in kind and degree of risk posed" to burglary, arson, extortion, and crimes involving the use of explosives -- the crimes enumerated in the Guidelines' definition of crime of violence; and 2) the district court did not have authority to award credit for time served in state custody.

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In Suggs v. McNeil, No. 09-12718, a capital habeas matter, the court of appeals affirmed the denial of petitioner's petition, holding that the decision of the Florida Supreme Court that petitioner failed to prove prejudice due to allegedly ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), was neither contrary to nor an unreasonable application of clearly established federal law.

As the court wrote:  "This appeal from the denial of a petition for a writ of habeas corpus presents the question whether the attorneys who represented Ernest Suggs, a Florida prisoner sentenced to death, deprived Suggs of effective assistance by failing to investigate and present a defense of mental health mitigation for the penalty phase of his trial. In 1992, a jury found Suggs guilty of robbery, kidnapping, and murder. The state proved that Suggs in 1990 kidnapped Pauline Casey, who was working alone at the Teddy Bear Bar in Walton County, Florida; Suggs drove Casey several miles from the bar, and stabbed her multiple times in the neck and back, nearly decapitating her; and Suggs stole about $200. During the penalty phase, Suggs's attorneys presented evidence of his good character, but the jury recommended, by a seven-to-five vote, a sentence of death, which the trial court accepted. In a collateral attack of his conviction and sentence in state court, Suggs argued that his attorneys should have investigated and presented evidence of his "intellectual inefficiency." The Florida Supreme Court ruled that the attorneys' failure to investigate and present a defense about Suggs's mental health did not undermine confidence in the result of the penalty phase. Because we conclude that the decision of the Florida Supreme Court that Suggs failed to prove prejudice under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), was neither contrary to nor an unreasonable application of clearly established federal law, we
affirm."

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In US v. Williams, No. 08-10185, the court of appeals vacated defendant's life sentence as a career offender under U.S.S.G. section 4B1.1 following his conviction for possession of crack cocaine, holding that, in light of the Supreme Court's ruling in Johnson, the fact of a conviction for felony battery on a law enforcement officer in Florida, standing alone, no longer satisfied the "crime of violence" enhancement criteria as defined under the "physical force" subdivision of section 4B1.2(a)(1).

In Gilbert v. US, No. 09-12513, the court of appeals vacated defendant's sentence for possession with intent to distribute both crack cocaine and marijuana, holding that defendant's sentence was enhanced based upon a nonexistent offense - being a career offender with only one prior violent felony.

In Bowles v. Sec'y., Dept. of Corrs., No. 10-10284, a capital habeas matter, the court of appeals affirmed the denial of petitioner's habeas petition, holding that petitioner did not cite any decision of any court anywhere that established any of the rights he was claiming in connection with the prosecutor's use of peremptory strikes to remove jurors who had reservations about the death penalty but were not removable for cause under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770 (1968).

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In Hill v. Schofield, No. 08-15444, a capital habeas matter, the court of appeals reversed the denial of petitioner's habeas petition, holding that Georgia's requirement of proof of mental retardation beyond a reasonable doubt necessarily would result in the execution of the mentally retarded, and thus the Georgia Supreme Court's decision was contrary to the clearly established rule of Atkins.

Guevara v. Repub. of Peru, No. 08-17213, involved an action claiming that the Republic of Peru owed plaintiff $5 million in reward money for information that lead to the arrest of Peru's former spy chief, Vladimiro Lenin Montesinos Torres.  The court of appeals reversed summary judgment for plaintiff, on the ground that the district court should have recognized Peru's sovereign immunity and therefore dismissed plaintiff's claim for lack of subject matter jurisdiction.

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Harrell v. Fla. Bar, No. 09-11910, involved a First Amendment action by a lawyer who advertised the services of his firm extensively, claiming in a broad facial challenge that nine advertising-related provisions of the Rules Regulating the Florida Bar were so vague as to violate his due process rights.  The court of appeals affirmed summary judgment for defendants, holding that plaintiff did not give any substantial reason to believe that submitting a bare script or outline of the advertisements he proposed would constitute a hardship. However, the court reversed in part on the grounds that: 1) plaintiff satisfied the injury-in-fact requirement with respect to five of the challenged rules; 2) plaintiff made an adequate threshold showing of vagueness in the application of the rules to his proposed advertisements; and 3) the bar did not bear its heavy burden of showing that it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur."

Xia v. U.S. Atty. Gen., No. 08-13849, concerned a petition for review of the BIA's decision affirming the denial, by an Immigration Judge (IJ), of petitioner's claims for asylum, withholding of removal, and relief under the United Nations Convention Against Torture, and ordering her removal.  The court denied the petition on the ground that the totality of the record provided ample support for the IJ's specifically stated finding that petitioner's testimony regarding the critical events at issue was not credible.

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Pretka v. Kolter City Plaza II, Inc., No. 10-11471, concerned a class action alleging violations of the Florida Condominium Act as well as breach of contract.  The court of appeals reversed order remanding the action to state court, holding that 1) defendant established by more than a preponderance of the evidence that the amount in controversy exceeded $5 million; and 2) the jurisdictional evidence that defendant attached to its opposition to remand should not have been excluded merely because it was submitted in response to the plaintiffs' motion to remand.

Childers v. Floyd, No. 08-15590, involved a habeas petition challenging petitioner's convictions for money laundering, bribery, and unlawful compensation or reward for official behavior.  The court of appeals reversed the denial of the petition, on the grounds that 1) the trial court's failure to permit cross-examination of a witness's motive for changing his testimony deprived petitioner of a full opportunity to probe and expose the witness's testimonial infirmities; and 2) it was reasonable to infer that, had petitioner been able to cross-examine the witness fully, the witness's credibility could have been completely eviscerated.

Danner Const. Co. v. Hillsborough Cty. Fla., No. 09-13951, involved an antitrust action concerning Hillsborough County, Florida's establishment of a franchise system for waste collection.  The court of appeals reversed the district court's denial of defendants' motion to dismiss on state action immunity grounds, holding that, even if the Sherman Act preempted a state practice, if it was undertaken by state actors pursuant to an expressed anticompetitive state policy, then those actors were immune from liability.

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Appeal in Civil Rights Action Claiming Excessive Force By Police

Brown v. City of Huntsville, No. 09-12965, involved an action bringing federal and state claims for false arrest and excessive force by the police.  The court of appeals affirmed in part the district court's grant of summary judgment to defendants on the basis of qualified immunity and state-law immunity, holding that: 1) plaintiff's actions in playing loud music, stopping her car, and rolling her window down could have indicated to an objectively reasonable officer at the scene that plaintiff was making unreasonable noise with intent to create public annoyance; and 2) the district court did not err in granting qualified immunity to certain defendants because they did not participate in plaintiff's arrest and were not defendant-officer's supervisors.  However, the Eleventh Circuit reversed in part, on the ground that a reasonable jury could conclude that defendant's actions in effecting the arrest constituted excessive force.

As the court wrote:  "In this 42 U.S.C. § 1983 action, Plaintiffs-Appellants Joi Brown and Shaun Sonia bring federal and state claims for false arrest and excessive force. Plaintiffs appeal the district court's grant of summary judgment to the Defendants-Appellees - the City of Huntsville, Alabama (the "City"), and two police officers - on the basis of qualified immunity and state-law immunity. After review and oral argument, we affirm in part and reverse in part."

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McCullough v. US, No. 09-13724, involved an action claiming medical malpractice by a Veteran's Administration hospital.  The court of appeals affirmed summary judgment for defendant, on the ground that plaintiff's administrative claim was filed more than two years after he knew that his paralysis was caused by a spinal abscess that may have resulted from an operation performed at the hospital.

As the court wrote:  "Days before routine scheduled hernia surgery, Samuel McCullough ("Mr. McCullough") went to a Veterans Affairs hospital complaining about neck pain. Ten days after the surgery, he was quadriplegic. The district court granted summary judgment for the United States because Mr. McCullough's administrative claim was filed more than two years after Mr. McCullough knew that his paralysis was caused by a spinal abscess. We feel sympathy for Mr. McCullough in light of his misfortune. Nonetheless, the statute of limitations requires us to affirm."

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Ward v. U.S. Atty. Gen., No. 09-11349, concerned an action seeking declaratory relief and a writ of mandamus requiring defendants to allow plaintiff to file a DS-230 application for immigrant visa status.  The court of appeals affirmed summary judgment for defendants, holding that the death of a primary-beneficiary parent extinguishes his child's right to his immigrant visa status.

In US v. Farley, No. 08-15882, the court of appeals affirmed defendant's conviction and sentence for knowingly crossing "a State line" with intent to engage in a sexual act with a person under the age of twelve, on the grounds that 1) the First Amendment did not protect his sexually explicit conversations with an undercover officer who pretended to be offering her daughter for sex; 2) defendant's conviction turned on the criminal intent with which he acted, not on the existence of an actual child; 3) even if the FBI did trick defendant into thinking their investigation was about terrorism, there was no evidence they made any promise that questioning would be limited to that subject, or gave him any assurance that statements relating to other crimes would not be used against him; and 4) there was evidence sufficient for a reasonable factfinder to find guilt beyond a reasonable doubt.  However, the court vacated defendant's sentence, holding that the thirty-year statutory mandatory minimum sentence imposed on defendant was not constitutionally disproportionate.

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In Jones v. Sec'y., Dept. of Corrs., No. 10-11497, a capital habeas matter, the court of appeals affirmed the denial of petitioner's application for a certificate of appealability, holding that 1) the record supported the finding that petitioner's attorneys made the tactical decision described by the Florida Supreme Court, and it was not debatable that the ruling of that court was a reasonable application of clearly established federal law; 2) the record supports the description of the evidence by the Florida Supreme Court; 3) petitioner did not explain how the introduction of this evidence violated his constitutional rights; and 4) petitioner's attorneys investigated his mental health, and they presented expert testimony regarding his mental functioning and drug addiction.

As the court wrote:  "David Wyatt Jones is a Florida inmate sentenced to death who seeks a
certificate of appealability to appeal the denial of his petition for a writ of habeas corpus. 28 U.S.C. § 2254. Jones has failed to make a substantial showing of the denial of a constitutional right. We deny his application for a certificate of appealability."

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