U.S. Fifth Circuit: April 2010 Archives
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April 2010 Archives

Successive Motion to Vacate in Capital Murder Case Denied

In re: Webster, No. 09-11039, involved petitioner's motion for an order authorizing the district court to consider a successive motion to vacate his federal death sentence.  The Fifth Circuit denied the motion, holding that there was no reason to believe that Congress intended the language "guilty of the offense" in 28 U.S.C. section 2255 to mean "eligible for a death sentence."

As the court wrote:  "Bruce Webster moves for an order authorizing the district court to consider a successive motion to vacate his federal death sentence under 28 U.S.C. § 2255, as amended by section 105 of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Because he does not meet the procedural requirements of § 2255(h), we deny the motion."

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No Jurisdiction to Review Claim Regarding I-485 Application

Bian v. Clinton, No. 09-10568, concerned an action seeking to compel the United States Department of Homeland Security, Citizenship and Immigration Services ("USCIS") to adjudicate plaintiff's I-485 application for adjustment of immigration status.  The court of appeals affirmed the dismissal of the action, on the ground that, because plaintiff contested the USCIS's decision to adjudicate her application in compliance with regulations that were clearly within the agency's discretion to establish, the federal courts were without jurisdiction to entertain her claim.

As the court wrote:  "Appellant Fei Bian ("Bian"), a Chinese national residing lawfully in the United States since 1999, appeals the district court's dismissal of her complaint seeking to compel the United States Department of Homeland Security, Citizenship and Immigration Services ("USCIS") to adjudicate her I-485 application for adjustment of immigration status. Agreeing with the appellees that, under these facts, we lack jurisdiction to review the pace of the USCIS's adjudication process, we affirm."

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Product Liability and Worker's Compensation Issues

Chevron USA Inc. v. Aker Maritime Inc., No. 07-31117, involved an action by Chevron to recover its costs resulting from the replacement of failed bolts in an oil production facility.  The court of appeals affirmed judgment for plaintiff, holding that the evidence was sufficient for the jury to find defendant liable as an apparent manufacturer.  However, the court vacated in part on the ground that the cost of repairing a spar in the facility was not an "economic loss" under the Louisiana Products Liability Act, and thus plaintiff was not entitled to attorney's fees.

Craven v. Director, Office of Wkrs. Comp. Programs, No. 09-60361, concerned a petition for review of the Benefits Review Board's denial of petitioner's appeal to the Board.  The court of appeals dismissed the petition on the ground that, a result of petitioner's failure to exhaust his administrative remedies, the court of appeals had no final order from the Board to review.

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Double Jeopardy Claims Rejected in Enron Related Appeal

US v. Shelby, No. 10-20148, involved the government's motion to dismiss defendant's appeal from the denial of his motion to dismiss, on double jeopardy grounds, a superseding indictment for insider trading and related charges.  The court of appeals granted the motion, holding that 1) even if the district court and the court of appeals did not adhere, in a companion case, to the "points in controversy" test that defendant urged, there was no basis to conclude that the companion case created an intervening change or "correction" in the applicable law; and 2) the district court's and the court of appeals' conclusions as to certain Summer 2000 acquitted counts did not depend on any reference to certain Early 2000 hung counts.

As the court wrote:  "The defendant, Rex T. Shelby, filed a pretrial appeal from an order by the district court that denied his motion to dismiss, on double jeopardy grounds, a Seventh Superseding Indictment filed against him on November 9, 2005. Presently before this court is the Government's motion to dismiss Shelby's appeal. The Government contends that we lack subject-matter jurisdiction over the appeal because Shelby's double jeopardy claims are "not colorable" and "frivolous." For the reasons discussed below, we agree and dismiss the appeal."

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Offshore Drilling Co. v. Gulf Copper & Mfg. Corp., No. 08-40885, concerned a declaratory judgment action claiming that an indemnity provision in plaintiff's contract with defendant released plaintiff from liability for the destruction of a ship in plaintiff's shipyard.  The court of appeals affirmed summary judgment for plaintiff, on the ground that the parties' factual disagreements did not create a material issue of fact concerning control of the vessel.  However, the court reversed the denial of attorney's fees where, because plaintiff's indemnity claim arose under the contract, it was entitled to the costs of its defense under the indemnity provision.

Carmona v. Southwest Airlines Co., No. 08-51175, involved an action claiming that the termination of plaintiff's employment violated Title VII and the Americans with Disabilities Act (ADA).  The court of appeals reversed judgment as a matter of law for defendant, holding that 1) plaintiff presented sufficient evidence that he was substantially limited in the major life activity of walking; and 2) there was no dispute that plaintiff was able to perform the essential functions of his job as a flight attendant when he showed up to work.  Additionally, the court of appeals vacated the district court's order denying reinstatement in light of the Fifth Circuit's holding that it was error to grant defendant's motion for judgment as a matter of law.

Nunez v. Allstate Ins. Co., No. 09-30034, concerned an action against an insurer based on Hurricane Katrina-related damage to plaintiffs' home.  The court of appeals affirmed summary judgment for defendant, on the grounds that 1) according to the plain meaning of the term "replace," plaintiffs' purchase of their Houston home did not constitute a substitute or replacement under the policy; and 2) rulings of other judges in the Eastern District of Louisiana and the facts propounded by defendant demonstrated that a determination to exclude plaintiffs' expert testimony under Fed. R. Evid. 702 did not amount to an abuse of discretion.

Bollinger Shipyards Inc. v. Director, Office of Wkrs. Comp. Programs, No. 09-60095, concerned a petition for review of an order of the Benefits Review Board awarding benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA) to claimant, an undocumented immigrant who fell and injured himself while employed by petitioner.  The court of appeals denied the petition on the grounds that 1) claimant was an employee within the intendment of the statute and was thus eligible for workers' compensation benefits; 2) awarding workers' compensation benefits under the LHWCA was a non-discretionary remedy; and 3) the LHWCA expressly provided for the award of benefits to nonresident aliens.

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Capital Habeas Matter in Pierce v. Thaler

Pierce v. Thaler, No. 08-70042, involved a capital habeas matter.  The Fifth Circuit affirmed the district court's order requiring petitioner to be resentenced, holding that an additional instruction on mitigating evidence was required because: 1) under clearly established federal law, the future dangerousness special issue provided a meaningful basis for the jury to consider and give effect to petitioner's youth (he had just turned 18 at the time of the killing) and his good behavior in prison; and 2) petitioner's evidence of being led astray by older boys and being locked up for a significant period of time had mitigating relevance beyond the special issues and therefore required an additional instruction.  Additionally, the court of appeals affirmed the district court's order denying all other relief, holding that the state habeas court was not unreasonable in determining that petitioner did not meet the Texas definition of a mentally retarded person.

As the court wrote:  "The petitioner-appellee, Anthony L. Pierce, was sentenced to death in 1986 in Texas state court for a murder committed during the course of a robbery in 1977. After exhausting his state-court avenues for postconviction relief in 2007, he sought habeas relief under 28 U.S.C. § 2254 in federal district court. The district court vacated Pierce's death sentence and ordered resentencing, finding that the statutory special issues presented to the jury at Pierce's sentencing did not permit the jury to give meaningful consideration and effect to all of Pierce's mitigating evidence, as Penry v. Lynaugh, 492 U.S. 302 (1989), requires. The district court denied Pierce's other asserted bases for habeas relief and denied a certificate of appealability (COA). The State appealed the resentencing. Pierce, in turn, sought a COA from this court on six of the issues raised before the district court. We granted a COA as to two of those issues:  Whether Pierce received ineffective assistance of counsel at sentencing, and whether Pierce was mentally retarded and therefore ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002)."

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Rulings in Drug Convictions Affirmed

In US v. Garcia, No. 09-40575, the court of appeals affirmed defendant's cocaine possession conviction, on the grounds of 1) defendant did not qualify his consent to the police, who therefore had general consent to search defendant's truck; and 2) when the officers requested permission to search the truck after asking defendant whether he was carrying "anything illegal," it was natural to conclude that they might look for hidden compartments or containers.  However, the court remanded defendant's sentence for correction of a clerical error in the judgment.

In US v. Santillana, No. 09-50298, the Fifth Circuit affirmed defendant's conviction for distributing methadone resulting in another's death, on the grounds that 1) although the evidence did not provide an airtight chain-of-custody account of the methadone tablets defendant sold to the victim, there was ample support for a reasonable jury to infer that the victim ingested those tablets before slipping into his fatal coma; and 2) there was sufficient evidence for a reasonable jury to conclude that the victim's death resulted from his use of methadone under a heightened standard of causation.

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In US v. Davis, No. 08-20844, the Fifth Circuit affirmed defendant's conviction for aiding and assisting in the preparation of false tax returns, holding that 1) the IRS did not reject the Forms 1040 defendant prepared based on the language he added to them, and thus the Forms 1040 were valid, though fraudulent, tax returns; and 2) defendant failed to demonstrate how the district court's failure to give him accommodations that were never requested affected his substantial rights.

As the court wrote:  "Defendant-Appellant Richard Duane Davis appeals from a judgment of conviction on multiple counts of aiding and assisting in the preparation of false tax returns in violation of 26 U.S.C. § 7206(2) and 18 U.S.C. § 2. Davis argues on appeal that the government failed to prove beyond a reasonable doubt that he aided and assisted with the preparation of false tax returns and that the district court failed to accommodate his special need for hearing assistance in violation of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. For the following reasons, we affirm."

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Stroman v. Thaler, No. 07-20198

Stroman v. Thaler, No. 07-20198, involved a cocaine possession prosecution.  The Fifth Circuit affirmed the dismissal of petitioner's habeas petition, holding that petitioner's petition was untimely, and he failed to show the due diligence required for equitable tolling.

As the court wrote:  "The district court granted the respondent's motion for summary judgment, holding that the petition was barred by the one year statute of limitations and that Stroman was not entitled to equitable tolling. The court noted that Stroman had waited nearly seven months after his state conviction had become final on direct appeal before filing his state habeas, and he knew that he would only have some five months after any denial thereof within which to file for federal habeas relief. Yet, after being informed in response to his first inquiry, some ten months after its filing, that the state petition was still pending, he waited an additional eighteen months before making his second inquiry. After hearing that the writ had been denied in October 2004, he waited another seven weeks before filing his federal habeas petition. The federal district court concluded that Stroman had not shown the due diligence required for equitable tolling. We affirm."

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Civil Procedure and Insurance Matters

Berik Stiftung v. Plains Mktg., L.P., No. 09-20631, involved an action alleging that defendants purchased assets in a Canadian pipeline without the consent of its true owner.  The court of appeals affirmed the dismissal of the complaint, on the ground that plaintiff was the only named plaintiff and alleged in its complaint that it was a foreign corporation organized and existing under the laws of the country of Liechtenstein, and thus it was a foreign citizen for purposes of 28 U.S.C. section 1332(a) and there was not complete diversity among the parties.

Halmekangas v. State Farm Fire & Cas. Co., No. 09-31060, concerned an action seeking home insurance proceeds arising out of Hurricane Katrina.  The Fifth Circuit vacated the district court's denial of plaintiff's motion to remand to state court, holding that no federal court had original jurisdiction  over the action, and 28 U.S.C. section 1367, the supplemental jurisdiction statute, by its own terms, could not fill the void.

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Toora v. Holder, No. 09-60073

Toora v. Holder, No. 09-60073, involved a petition for review of the BIA's denial of petitioner's motion to reopen his deportation hearing.  The court of appeals denied the petition on the ground that the departure bar, 8 C.F.R. section 1003.23(b)(1), applied to an alien who departed the U.S. after receiving notice of his deportation proceeding, but before the proceeding was completed and the Immigration Judge entered a deportation order.

As the court wrote:  "Petitioner, Dhanvir Toora, proceeding pro se, raises on appeal the question of whether the departure bar, 8 C.F.R. § 1003.23(b)(1), applies to an alien who departs the United States after receiving notice of his deportation proceeding, but before the proceeding is completed and the Immigration Judge ("IJ") enters a deportation order. We find the departure bar does apply in this situation and divests the IJ of jurisdiction to hear the alien's motion to reopen his deportation proceeding."

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Criminal Cases

US v. Bishop, No. 09-20172, involved a prosecution for aggravated identity theft and fraud in connection with access devices.  The Fifth Circuit affirmed a condition of defendant's supervised release requiring her to participate in a mental health program as deemed necessary and approved by the probation officer, holding that any error by the district court in delegating authority to a probation officer to determine the length of a defendant's treatment was not plain or obvious because the court had not previously addressed the issue.

US v. Longstreet, No. 09-60051, the court of appeals affirmed in part defendant's sentence for trafficking firearms and for making a false statement in connection with the purchase of firearms, holding that 1) defendant was not permitted to collaterally attack a prior state court conviction; 2) there was considerable evidence that defendant knew the guns would be used in other felony offenses; and 3) it was proper for the district court to have considered acts beyond defendant's actual purchases, so long as those acts were in furtherance of the same course of conduct or common scheme or plan as the conspiracy.  However, the court vacated in part where, absent particularized findings that defendant was actually involved in a co-conspirator's activities prior to 2001 or that defendant was otherwise responsible for more than 200 firearms from 2001 through 2005, the present record provided no justifiable basis for the district court's assessment of a ten-level increase.

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Civil Procedure, Civil Rights and Criminal Matters

In US v. Hughes, No. 08-60870, the Fifth Circuit affirmed defendant's firearm possession conviction and sentence, holding that 1) faced with contradictory testimony regarding what officers saw in defendants' car, the district court was entitled to decide whom to believe when both presented "reasonable views of the evidence"; 2) there was not enough in this record to rule on whether defendant's counsel was ineffective, so he was required to follow the usual route of collateral attack; and 3) defendant's third prior conviction for violating the federal escape statute, 18 U.S.C. section 751(a), was a violent felony, as the district court held, which qualified defendant for enhanced sentencing under the Armed Career Criminal Act.

Del Prado v. B.N. Dev. Co., No. 09-10581, concerned proceedings arising out of a class action brought against Ferdinand Marcos, the former President of the Philippines, to enforce an Illinois registered judgment in the U.S. District Court for the Northern District of Texas.  The court of appeals reversed the dismissal of the complaint on the ground that a judgment entered in one federal court and then registered in a second federal court pursuant to 28 U.S.C. section 1963, may be re-registered and enforced in a third federal court, a process termed "successive registration."

In US v. Davis, No. 09-10731, the Fifth Circuit affirmed defendant's sentence following the revocation of his supervised release, holding that 1) defendant failed to meet his burden of establishing a reasonable probability that the district court's consideration of an incorrect advisory range affected his sentence; and 2) the court of appeals declined to exercise its discretion to remand for resentencing.

Jennings v. Owens, No. 09-50047, involved an action claiming that officials from the Texas Board of Pardons and Paroles and the Texas Department of Criminal Justice committed procedural due process violations after the Board of Pardons and Paroles imposed sex offender special conditions on plaintiff's parole.  The court of appeals reversed summary judgment for defendant, holding that because plaintiff was indeed a sex offender, he failed to show that he had a liberty interest that was infringed when the parole board imposed sex offender special conditions on his parole.

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Administrative and Insurance Law Cases

Travelers Lloyds Ins. Co. v. Pacific Employers Ins. Co., No. 07-20157, involved an action by an insurer seeking a declaration that defendant-insurer was required to defend and indemnify a shopping mall against claims in an underlying personal injury action.  The Fifth Circuit reversed summary judgment for plaintiff, holding that 1) the district court properly concluded that the contractual provision requiring defendant-store to include the mall as an additional insured under the policy procured from defendant was enforceable, but 2) the mall had coverage under both plaintiff's and defendant's insurance policies, and because the "other insurance" provisions conflicted, each insurer needed to share in the costs of underlying litigation against the mall.

Medina Cty. Envt'l. Action Ass'n., No. 09-60108, concerned a petition for review of a Construction and Operation Exemption Decision (the Decision) entered by one of the respondents, the Surface Transportation Board (STB).  The court of appeals denied the petition on the grounds that 1) STB's refusal to consider the proposed development of the entire tract at issue as an "interrelated action" did not render the Decision arbitrary and capricious; 2) petitioner did not show that the future phrases of the quarry were free from regulatory and financial contingencies such that their occurrence would be reasonably foreseeable, much less reasonably certain; and 3) petitioner did not show that respondents' reliance on certain mitigation measures in support of their conclusions as to jeopardy rendered the Decision arbitrary and capricious.

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Constitutional and Criminal Matters

United Healthcare Ins. Co. v. Davis, No. 08-30001, involved both parties' appeal from the district court's order enjoining the implementation of La. R.S. section 42:802.1 (the Act), on the basis that it violated the dormant Commerce Clause because it effectively favored Louisiana insurance companies in bidding for health insurance coverage for state employees, but holding that the Act did not violate the Commerce or Due Process Clauses.

In US v. Alexander, No. 09-50200, the Fifth Circuit affirmed defendant's drug possession sentence, holding that 1) obstruction of a state investigation based on the same facts as the eventual federal conviction qualifies for enhancement even if the obstructive conduct occurred before federal authorities commenced their investigation; and 2) defendant's direction to hide the firearms was sufficiently related to his offense of conviction, possession of cocaine base.

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