U.S. Fifth Circuit: June 2010 Archives
U.S. Fifth Circuit - The FindLaw 5th Circuit Court of Appeals Opinion Summaries Blog

June 2010 Archives

Denial of Habeas Petition in Murder Case Reversed

In White v. Thaler, No. 06-20736, a murder prosecution, the court of appeals reversed the denial of petitioner's habeas petition, on the ground that defense counsel rendered ineffective assistance by 1) cross examining petitioner regarding his post-arrest silence, which allowed the prosecutor to impeach him with his failure to tell the police his exculpatory version of the events, and 2) failing to file a motion in limine or object to evidence of the murder victim's pregnancy.

As the court wrote:  "Petitioner-Appellant, Wendell Keith White (White), was convicted of murder and aggravated assault in Harris County, Texas. White appeals the district court's denial of federal habeas relief as to both convictions, arguing that counsel rendered ineffective assistance. We find that counsel rendered ineffective assistance by (1) cross examining White regarding his post-arrest silence, which allowed the prosecutor to impeach him with his failure to tell the police his exculpatory version of the events, and (2) failing to file a motion in limine or object to evidence of the murder victim's pregnancy. We therefore reverse the district court's denial of habeas relief and remand with instructions to grant the writ in accordance with this opinion."

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Denial of Petition for Review of Order of Removal

Ogunfuye v. Holder, No. 09-60074, involved a petition for review of a final order of removal entered by the Board of Immigration Appeals (BIA).  The court of appeals denied the petition, on the grounds that 1) because petitioner was an aggravated felon, the court had no jurisdiction to reach her argument that the lack of notice constituted "good cause" warranting a continuance; and 2) the immigration judge did not err in determining that it could not adjudicate petitioner's prima facie eligibility for naturalization.

As the court wrote:  "Juliana Adenike Ogunfuye petitions for review of a final order of removal
entered by the Board of Immigration Appeals ("BIA"). The BIA's order affirmed the Immigration Judge's ("IJ") decision to deny her motion for a continuance and dismiss Ogunfuye's claims for relief from removal as abandoned because she failed to supply biometric information in compliance with the IJ's order. On appeal, Ogunfuye argues that the IJ did not give her proper notice that she needed to submit biometrics as required by 8 C.F.R. § 1003.47(d). She asserts that the lack of notice resulted in the dismissal of her applications for relief in violation of her due process rights. She further contends that the IJ erred by not granting her a continuance to submit biometrics. Finally, Ogunfuye argues that the IJ erroneously determined that it could not make a prima facie adjudication of her naturalization eligibility. We affirm."

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In US v. Williams, No. 07-20689, the Fifth Circuit affirmed defendant's murder convictions, on the grounds that 1) the Government's articulated reasons for striking a veniremember were supported by the voir dire transcripts; and 2) it was not clear error for the district court to include defendant's first trip, during which he transported approximately 60 unlawful aliens, as part of the relevant conduct.  However, the court vacated in part, holding that the district court erred in its definition of "act of violence" under the Federal Death Penalty Act and, under the correct definition, the evidence at trial cannot support a finding that the requisite threshold intent was met.

Woodfox v. Cain, No. 08-30958, involved the state's appeal from the grant of petitioner's habeas petition in a murder prosecution.  The court of appeals reversed, holding that 1) petitioner failed to exhaust his Confrontation Clause claim in state court; 2) there was no indication in the state court adjudication that suggested a reliance on any procedural vehicle rather than the merits to deny relief; 3) it was not unreasonable to conclude that defense counsel did not render constitutionally deficient performance by failing to pursue a confrontation objection; and 4) the absence of a fingerprint expert did not cause petitioner prejudice that warrants habeas relief.

In Bailey v. Cain, No. 08-31222, a murder prosecution, the court of appeals dismissed petitioner's appeal of the denial of his petition, and affirmed the denial of petitioner's Fed. R. Crim. P. 60 motion, on the grounds that 1) omitted from petitioner's motion for a certificate of appealability was a specific reference to the judgment or order from which appeal was taken; and 2) petitioner made no attempt to show that he could not have obtained a transcription sooner if it were necessary to make his case before the district court.

Dale v. Holder, No. 08-60661, involved a petition for review of a decision by the Board of Immigration Appeals (BIA) upholding petitioner's order of removal under 8 U.S.C. section 1101(a)(43)(F) for being convicted of an aggravated felony.  The court of appeals granted the petition, on the grounds that 1) although the argument petitioner presented to the BIA was not identical to that which he raised in his petition for review, the arguments were sufficiently related to establish that he presented his ground for relief to the administrative agency in the first instance; and 2) the BIA erred as a matter of law in concluding that petitioner could not legally plead guilty to an attempted violation of N.Y. Penal Law 120.10(3) or (4).

Rice v. Astrue, No. 09-10589, concerned plaintiff's appeal from the district court's order requiring her attorney to remit a portion of her Equal Access to Justice Act (EAJA) award if she won attorney's fees at the administrative level.  The Fifth Circuit reversed, holding that a federal court may not condition the amount of its EAJA award of attorney's fees on a future grant of attorney's fees by the Commissioner of Social Security.

Bagby Elevator Co. v. Schindler Elevator Corp., No. 09-10804, involved an action for tortious interference with contract.  The court of appeals affirmed judgment for plaintiff, holding that 1) under the court's highly deferential standard of review, there was no reversible error in the district court's decision to use the pattern jury instruction; 2) there was sufficient evidence of both malice and gross negligence to support an award of exemplary damages; and 3) there was ample evidence of causation to support the verdict.

Hershey v. Engy. Transfer Ptnrs., L.P., No. 09-20651, concerned a putative class action under the Commodities Exchange Act ("CEA"), alleging manipulation of natural gas futures and options prices.  The Fifth Circuit affirmed the dismissal of the complaint, holding that plaintiffs did not allege facts tending to show that defendants had specifically intended to manipulate the cost of natural gas.

Crescent Towing & Salvage Co. v. Chios Beauty MV, No. 09-30055, an action for damages sustained when defendant's ship collided with plaintiffs' barges and tugboats during Hurricane Katrina.  The Fifth Circuit partially affirmed partial judgment for plaintiff, holding that the district court did not clearly err in its finding of a predicted "direct hit" on New Orleans by the hurricane, its factual findings based on this finding, and the ultimate finding of negligence to the extent that it relied upon this finding.  However, the court of appeals remanded on the ground that the district court needed to enter an order setting the total amount of recovery plaintiffs could recover in rem.

Kemp v. Holder, No. 09-30255, involved an action for violations of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act arising from the termination of plaintiff's employment as a federal court security officer.  The court of appeals affirmed summary judgment for defendant, holding that plaintiff failed to show a genuine issue of material fact regarding whether he had a "disability," as that term is defined under the ADA.

Rathborne Land Co. v. Ascent Engy., Inc., No. 09-30499, concerned an action for breach of defendant's obligations to reasonably develop and explore a leased parcel of oil, gas, and mineral land.  The Fifth Circuit affirmed judgment for plaintiff in part, holding that 1) plaintiff's letter to defendant met the La. Rev. Stat. Ann. section 31:136 demand requirement; and 2) district court did not clearly err in concluding that plaintiff would have been able to lease the disputed acreage more than once if it had been able to seismically survey the parcel prior to 2006.  However, the court vacated in part, on the ground that neither the district court nor plaintiff could show adequate ground -- indeed, any relevant precedent -- for awarding consequential damages for lost leasing and seismic revenues on the entire parcel.

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Terry v. Hubert, No. 09-30559, involved an action alleging violations of plaintiff's First Amendment right to access the courts and Fourteenth Amendment right to due process.  The court of appeals reversed the denial of summary judgment based on qualified immunity, holding that the undisputed evidence showed that defendant-warden neither violated plaintiff's right of access to the courts nor violated any clearly established law in connection with the detention.

As the court wrote:  "In the aftermath of Hurricane Katrina, Appellee James Allen Terry, Jr.,
was arrested for looting and detained at Elayn Hunt Correctional Center (EHCC) for approximately seven months. Upon his release, Terry brought a 28 U.S.C. § 1983 action against EHCC's Warden, Cornel Hubert, alleging violations of his First Amendment right to access the courts and Fourteenth Amendment right to due process. The magistrate judge denied the Warden's motion for summary judgment, finding issues of fact as to whether the Warden was entitled to qualified immunity. Because the undisputed evidence shows that the Warden neither violated Terry's right of access to the courts nor violated any clearly established law in connection with the detention, he was entitled to immunity from suit. We REVERSE and REMAND for entry of judgment in the Warden's favor."

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In re: Wilborn, No. 09-20415, involved an interlocutory appeal from the bankruptcy court's certification of a class action in an adversary proceeding.  The Fifth Circuit vacated the order, on the ground that a bankruptcy judge may certify a class of debtors under appropriate circumstances but that the proposed class in this case did not satisfy the requirements of Federal Rule of Civil Procedure 23 and Federal Bankruptcy Rule of Procedure 7023.

In US v. Velasquez-Torres, No. 09-40646, the court of appeals affirmed defendant's sentence for illegal reentry by a deported alien, holding that, having admitted the fact of his deportation as stated in the presentence report, defendant could not argue that the district court improperly relied on that deportation.

Balentine v. Thaler, No. 09-70026, involved a capital habeas petitioner's appeal from the denial of his motion to set aside the judgment that a year earlier had denied him habeas relief.  The court of appeals vacated, on the grounds that 1) petitioner's application stated a Sixth Amendment ineffective assistance of counsel claim, and the Fed. R. Crim. P. 60(b) motion did not present a new habeas claim barred by the Antiterrorism and Effective Death Penalty Act; 2) the Texas Court of Criminal Appeals' ruling was not clearly based on an adequate state ground independent of the merits; and 3) the equities for Rule 60(b)(6) relief were compelling when the failure to investigate and present available mitigation evidence had already been found in the Section 2254 proceedings to be a substantial issue.

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Bailey v. Shell Western E&P Inc., No. 08-20313, involved an action by Shell Western E&P Inc. seeking a declaration regarding the proper calculation method for royalties on carbon dioxide in the McElmo Dome.  The court of appeals affirmed summary judgment for defendant, on the grounds that 1) Fed. R. Civ. P. 41(a) dismissal only applies to the dismissal of an entire action, not particular claims; 2) because the parties only disputed Shell's obligations under a contract related to real property, the local action rule did not control; and 3) plaintiff did not carry his burden to prove that the allegations in his False Claims Act claims were not based upon prior, public disclosures--or, if they were, that he was an original source of the information.

Lopez-Dubon v. Holder, No. 08-60478, concerned a petition for review of the BIA's order denying petitioner's motion to reopen his case in order to seek adjustment of his immigration status.  The court of appeals denied the petition, on the grounds that 1) the court of appeals had jurisdiction over the question of whether the notice provided to petitioner was insufficient because of his age at the time of his detention; 2) notice must be served on an adult only for aliens under 14 years of age; and 3) the BIA's factual finding that notice was properly served on petitioner was supported by substantial evidence.

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Lyondell Chem. Co. v. Occidental Chem. Co., No. 08-40060, concerned "apportionment" actions under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) section 107 and "contribution" actions under CERCLA section 113 regarding the allocation of costs for the cleanup of a hazardous waste dump.  The Fifth Circuit affirmed in part the district court's order allocating liability among the parties, holding that 1) the use of Monte Carlo analysis to measure waste volume in this case did not differ meaningfully from any other Monte Carlo application; and 2) there was sufficient evidence that defendant dumped waste in the locations at issue.  However, the court reversed in part, on the ground that the district court erred by admitting an expert report that relied on evidence submitted solely for the purposes of settlement.

In US v. Andino-Ortega, No. 09-40498, the Fifth Circuit vacated defendant's sentence for being unlawfully present in the United States following deportation, where, because defendant's prior conviction for the offense of injury to a child, even where committed by an intentional act, did not require the use or attempted use of physical force, the offense did not meet the definition of a "crime of violence" necessary for imposition of the 16-level enhancement under U.S.S.G. section 2L1.2(b)(1)(A)(ii).

Startran, Inc. v. Occupational Safety & Health Comm., No. 09-60263, concerned a petition for review of a determination by the Occupational Safety and Health Commission (the Commission) that petitioner was not exempt from the Occupational Safety and Health Act (OSHA) under the provision of 29 U.S.C. section 652(5) stating that for purposes of the Act "'employer' . . . does not include . . . any . . . political subdivision of a State."  The court of appeals granted the petition, on the ground that, under 29 C.F.R. section 1975.5(b)(2), petitioner was administered by individuals who are controlled by public officials and responsible to such officials" and was thus exempt from OSHA.

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Appeal from Equitable Lien on Defendant's Condominium

Crawford v. Silette, No. 09-40641, involved defendant's appeal from the district court's order granting a receiver's petition imposing an equitable lien on defendant's condominium and ordering defendant to transfer it to the receiver.  The Fifth Circuit affirmed, holding that 1) federal law created subject matter jurisdiction for federal receivers, under 28 U.S.C. section 754; 2) in Florida, an equitable lien can be imposed on a homestead where an innocent party used fraudulently obtained funds to invest in the homestead; and 3) defendant was no worse off from the imposition of the equitable lien than she was as a mortgagor.

As the court wrote:  "Wendy Silette retired her Florida condominium's mortgage with $328,000 given her by George Hudgins. Unbeknownst to Silette, Hudgins obtained this money by defrauding investors through a Ponzi scheme. A court-appointed receiver in Hudgins's case petitioned the court to take control of Silette's condominium in order to sell it and redistribute the funds to Hudgins's victims. The district court granted the petition, imposed an equitable lien, and ordered Silette to transfer the condominium to the receiver. Silette appeals, arguing that the Florida Constitution's homestead exemption prevented the court from imposing an equitable lien and that the transfer order was improper. We affirm."

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Plus Rulings in Administrative, Bankruptcy and Civil Rights Cases

Castro v. US, No. 07-40416, concerned an action under the Federal Tort Claims Act (FTCA) alleging that the government's negligence caused the wrongful deportation of plaintiff's son.  The court of appeals affirmed the dismissal of the action on the ground that the government was protected from suit by 28 U.S.C. section 2680(a), the discretionary function exception of the FTCA.

In re: Velocita Worldwide Logistics Inc., No. 09-10416, involved an appeal from the district court's judgment affirming the bankruptcy court and declining to imply a right of contribution among defendants who agreed to be jointly and individually liable for a payment as part of the settlement agreement for a state tort action.  The court of appeals affirmed, on the ground that the obligations in the instant settlement agreement were not analogous to the obligations in surety and guaranty agreements, the contractual arrangements in which Texas courts had allowed contribution claims against co-obligors.

In re: Moore, No. 09-10604, concerned a creditor's appeal of the district court's affirmance of the bankruptcy court's approval of a settlement of estate claims over creditor's objection and despite its offer to purchase the claims for higher value.  The court of appeals reversed, holding that the claims at issue could be sold as well as compromised, and the bankruptcy court's failure to consider the effect of such a sale was an abuse of discretion.

Amazing Spaces, Inc. v. Metro Mini Storage, No. 09-20702, involved an action alleging infringement of a star design that plaintiff claimed as a service mark.  The court of appeals affirmed summary judgment for defendant, on the grounds that 1) the record evidence was replete with similar or identical five-pointed stars, both raised and set in circles, and used in similar manners, such that--notwithstanding the residual evidence of the presumption of validity--no reasonable jury could find that the star symbol was even a mere refinement of this commonly adopted and well-known form of ornamentation; and 2) plaintiff failed to raise a fact issue regarding the existence of secondary meaning with respect to the symbol.  However, the court reversed in part, on the ground that plaintiff had not yet had the opportunity to introduce evidence relating to its trade dress claims.

La Union Del Pueblo Entero v. Fed. Emergency Mgmt. Agency, No. 09-40948, concerned the Federal Emergency Management Agency's (FEMA) appeal from the district court's preliminary injunction requiring FEMA to publish standards that complied with 42 U.S.C. section 5174(j).  The court of appeals vacated the injunction, holding that plaintiffs merely complained that the regulations lacked specificity, not that FEMA wholly abdicated its responsibility to promulgate regulations, or promulgated regulations that directly contravened the statutory language.

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Challenge to City Ordinance Regulating Natural Gas Pipelines

Texas Midstream Gulf Servs. LLC v. Grand Prairie, No. 08-11200, involved an action seeking a declaration that a city ordinance regulating natural gas pipelines was preempted by the Pipeline Safety Act (PSA), 49 U.S.C. sections 60101-60137, and that the ordinance impinged on plaintiff's state-conferred eminent domain powers.  The court of appeals partially affirmed the district court's partial grant of injunctive relief for plaintiff, holding that 1) the city's zoning power was not subservient to plaintiff's eminent domain power; 2) the PSA did not preempt the setback requirement of the ordinance; and 3) the ordinance's preempted security fence requirement was severable from the remainder of the ordinance.

As the court wrote:  "This appeal concerns municipal regulation of the siting, construction, and operation of a natural gas compressor station. We weigh jurisdictional and jurisprudential concerns before addressing the merits, which implicate federalism and the interplay between state and local authority under Texas law. We affirm the judgment of the district court denying injunctive relief in part and granting relief in part."

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