U.S. Sixth Circuit: January 2010 Archives
U.S. Sixth Circuit - The FindLaw 6th Circuit Court of Appeals Opinion Summaries Blog

January 2010 Archives

US v. McFalls, No. 08-5839

District court's classification of defendant as a career offender under U.S.S.G. section 4B1.1 based on his prior convictions in South Carolina for four counts of second degree burglary of a dwelling and one count of assault and battery of a high and aggravated nature is reversed and remanded where: 1) defendant's four prior convictions for violating South Carolina's second degree burglary statute should have been counted as a single sentence under the Sentencing Guidelines because the four convictions were sentenced on the same day and the four offenses were not separated by an intervening arrest; and 2) defendant's prior sentence for second degree burglary of a dwelling does not qualify categorically as a crime of violence for purposes of U.S.S.G. section 4B1.1.     

Read US v. McFalls, No. 08-5839

Appellate Information

Argued: December 1, 2009

Decided and Filed: January 28, 2010

Judges

Opinion by Circuit Judge  Rogers

Counsel

For Appellant:  C. Douglas Thorensen, Federal Public Defender's Office

For Appellee:   Jimmie Lynn Ramsaur, Assistant US Attorney

Fritz v. Charter Township of Comstock, No. 08-2578

In plaintiff's retaliation claim under 42 U.S.C. section 1983 against a town and one of its supervisors, partial grant of defendant's motion for summary judgment regarding the First Amendment retaliation claim is reversed and remanded where plaintiff's factual allegations were sufficient to raise more than a mere possibility of unlawful First Amendment retaliation on the part of the defendants, and thus, the district court erred in granting the motion to dismiss on the pleadings as to that part of the complaint. 

Read Fritz v. Charter Township of Comstock, No. 08-2578

Appellate Information

Argued: October 9, 2009

Decided and Filed: January 28, 2010

Judges

Opinion by Circuit Judge  Clay

Counsel

For Appellant:  William Frank Piper, William F. Piper PLC

For Appellee:   James R. Nelson, Scholten Fant PC

Robinson v. Mills, No. 09-5243

District court's grant of conditional habeas relief to a defendant convicted of first degree murder is affirmed as withholding impeachment evidence regarding a witness's status as a confidential informer was material under Brady because there was a reasonable probability that disclosure of the evidence would have resulted in a different outcome for the proceeding. 

Read Robinson v. Mills, No. 09-5243

Appellate Information

Argued: October 8, 2009

Decided and Filed: January 28, 2010

Judges

Opinion by Circuit Judge  Clay

Counsel

For Appellant:  John H. Bledsoe, Office of the Attorney General

For Appellee:  Henry A. Martin, Federal Public Defender's Office

Kellermann v. Holder, No. 08-3927

A petition for review of BIA's final order of removal of a German citizen is denied as, petitioner's convictions under 18 U.S.C. sections 371 and 1001 (making false statements to an agency of the U.S. and conspiracy for failure to provide accurate financial records in connection with a grant he received from the government) constituted aggravated felonies as defined at INA section 101(a)(43)(M)(i), rendering him ineligible for cancellation of removal. 

Read Kellermann v. Holder, No. 08-3927

Appellate Information

Argued: July 30, 2009

Decided and Filed: January 25, 2010

Judges

Opinion by District Judge, Adams

Counsel

For Appellant:  Cynthia A. Moyer, Frederikson & Byron, PA

For Appellee:   Sunah Lee, US Department of Justice

B-Line, LLC v. Wingerter, No. 08-4455

In Chapter 13 proceedings, the decision of the bankruptcy court in holding that plaintiff's purchase of a creditor's claim against the debtors was not valid is reversed where: 1) the bankruptcy court clearly erred in finding that the purchase agreement between the plaintiff and the intermediary did not contain representations about the validity of the claims purchased by plaintiff; and 2) the bankruptcy court abused its discretion in determining that plaintiff's actions violated Rule 9011(b) and were therefore sanctionable. 

Read B-Line, LLC v. Wingerter, No. 08-4455

Appellate Information

Argued: December 4, 2009

Decided and Filed: January 25, 2010

Judges

Opinion by Circuit Judge  Gilman

Counsel

For Appellant:  Linh K. Tran, Louis H. Treiger

For Appellee:   N/A

Smith v. Bradshaw, No. 07-4305

A denial of a request for habeas relief by a defendant convicted and sentenced to death for raping and murdering a six-month-old baby is affirmed where: 1) defendant's claim that the prosecutor improperly commented on his failure to testify during the guilt phase is procedurally defaulted and defendant cannot excuse the default through the ineffectiveness of counsel because he cannot show that counsel's failure to object to this one comment -- thereby drawing attention to it -- was deficient; 2) defendant's claim that the penalty instructions violated Caldwell v. Mississippi is procedurally defaulted; 3) defendant's counsel was not ineffective for failing to object to the penalty instructions; and 4) a state court's analysis under Beck was reasonable as it is well established that a lesser-included offense instruction is not required where the facts of a murder so strongly indicate intent to kill that the jury could not rationally have a reasonable doubt as to the defendant's intent.     

Read Smith v. Bradshaw, No. 07-4305

Appellate Information

Argued: July 29, 2009

Decided and Filed: January 15, 2010

Judges

Opinion by Circuit Judge Boggs

Counsel

For Appellant:  Joseph E. Wilhelm, Federal Public Defender's Office

For Appellee:  Charles L. Wille, Office of the Ohio Attorney General

US v. Gillis, No. 07-3754

District court's imposition of a sentence of 262 months' imprisonment followed by six years of supervised release on a defendant convicted of possession and sale of crack cocaine within 1000 feet of a public school is affirmed in part and reversed in part and remanded where: 1) the government has not met its burden of showing that an error by the district court was harmless because it cannot be concluded that the court would have imposed the same sentence had it known that the career offender Guidelines were advisory; and 2) a denial of defendant's motion for a reduced sentence is affirmed as his career offender status disqualified him from receiving a reduced sentence under Guidelines Amendment 706 for crack cocaine offenses under Guideline 2D1.1. 

Read US v. Gillis, No. 07-3754

Appellate Information

Argued: October 15, 2009

Decided and Filed: January 15, 2010

Judges

Opinion by Circuit Judge Martin

Counsel

For Appellant:  Gary W. Crim, Law Office

For Appellee:  Edward F. Ferran, Assistant United States Attorney

Am. Civil Liberties Union of Kentucky v. Grayson County, No. 08-5548

In an action by the ACLU against a county challenging a display of the Ten Commandments in a County Fiscal Court, district court's finding that the hanging of the display was shown to have been motivated by a predominantly religious purpose in holding that the inclusion of the Ten Commandments in the display violated the Establishment Clause is reversed, and the permanent injunction vacated, as the district court erred in its assessment of the record as plaintiffs failed to present sufficient evidence to prove that the Fiscal Court had an impermissible purpose or that the display endorses religion. 

Read Am. Civil Liberties Union of Kentucky v. Grayson County, No. 08-5548

Appellate Information

Argued: April 23, 2009

Decided and Filed: January 14, 2010

Judges

Opinion by Circuit Judge  McKeague

Counsel

For Appellant:  Mathew D. Staver, Liberty Counsel

For Appellee:  William E. Sharp, General Counsel, ACLU of Kentucky

Jaradat v. Williams, No. 09-3193

District court's denial of a petition for habeas relief by a defendant convicted of rape and kidnapping is affirmed as the physical evidence supporting a vaginal rape charge was sufficiently weighty that the prosecution's conduct, while highly inappropriate, did not have a substantial and injurious effect on the jury's verdict. 

Read Jaradat v. Williams, No. 09-3193

Appellate Information

Argued: November 17, 2009

Decided and Filed: January 14, 2010

Judges

Opinion by Circuit Judge  Merritt

Counsel

For Appellant:  Kenneth J. Rexford, Kenneth J. Rexford & Co., LLC

For Appellee:   M. Scott Criss, Office of teh Ohio Attorney General

US v. Camiscione, No. 08-4294

Re-imposition of a sentence upon remand on a defendant convicted of possessing child pornography is vacated and remanded as the district court imposed its original sentence on defendant without considering general deterrence to the population at large and articulating how it avoids unwarranted sentence disparities under 18 U.S.C. section 3553(a).    

Read US v. Camiscione, No. 08-4294

Appellate Information

Argued: December 1, 2009

Decided and Filed: January 13, 2010

Judges

Opinion by Circuit Judge  Griffin

Counsel

For Appellant:  Daniel R. Ranke, Assistant US Attorney

For Appellee:   Anthony J. Vegh

Guilmette v. Howes, No. 08-2256

In habeas proceedings brought by a defendant convicted of first-degree home invasion claiming ineffective assistance of counsel, grant of a conditional writ is reversed and remanded where: 1) defendant has not shown that his trial counsel were ineffective and he cannot establish that he was prejudiced by the alleged ineffectiveness; 2) defendant's appellate counsel was therefore also not ineffective, for appellate counsel cannot be ineffective for a failure to raise an issue that lacks merit; and 3) defendant failed to establish cause and prejudice for his procedural default of an ineffective assistance claim, and is barred from raising the issue on habeas review. 

Read Guilmette v. Howes, No. 08-2256

Appellate Information

Argued: October 16, 2009

Decided and Filed: January 12, 2010

Judges

Opinion by Circuit Judge  Rogers

Counsel

For Appellant:  Janet A. Van Cleve, Michigan Attorney General's Office

For Appellee:   Kimberly Thomas, University of Michigan, Michigan Clinical Law Program

US v. Benson, No. 08-1131

Convictions and sentences of two defendants for drug conspiracy are affirmed where: 1) the trial court did not commit plain error in admitting prior currency seizure evidence against a defendant; 2) the trial court did not commit plain error in giving limiting instruction with regard to the co-defendant's testimony of their guilty pleas; 3) the prosecutor's remarks, even if improper, were not plain error; 4) the district court utilized the correct sentencing procedures and did not place an unreasonable amount of weight on impermissible factors in sentencing a defendant; 5) the evidence was sufficient to conclude that co-defendant intended to join the conspiracy and his conviction was not a miscarriage of justice; 6) the district court did not plainly err in admitting the co-conspirators' statements against the co-defendant; 7) the drug quantities used in sentencing the co-defendant were supported by a preponderance of the evidence; 8) use of "acquitted conduct" in calculating the co-defendant's Guidelines range was not a violation of the Sixth Amendment; 9) the assignment of the two-level enhancement for possessing a firearm during commission of the drug conspiracy was reasonable; and 10) co-defendant's argument that his sentence is unreasonable as compared to his co-defendant's must fail as many of his co-defendants accepted responsibility and pled guilty, and some had a less substantial criminal history. 

Read US v. Benson, No. 08-1131

Appellate Information

Argued: August 6, 2009

Decided and Filed: January 12, 2010

Judges

Opinion by Circuit Judge  Siler

Counsel

For Appellant:  Brian R. Laxton, Mertens Laxton & Clement, PLLC

For Appellee:   Kenneth P. Tableman, Kenneth P. Tableman, PC

US v. Fayette County Neighborhood Council, No. 08-6296

In a Clean Water Act civil enforcement action against a county brought by the United States and the Commonwealth of Kentucky for violations involving the county's sanitary and storm sewer systems, district court's refusal to approve a civil penalty is remanded where the district court's finding that the proposed civil penalty of $425,000 could be better directed toward alleviating the conditions that violated the Clean Water Act cannot, by itself, support rejection of an otherwise proper settlement in light of the express provision for civil penalties in the Clean Water Act.  

Read US v. Fayette County Neighborhood Council, No. 08-6296

Appellate Information

Argued: December 3, 2009

Decided and Filed: January 7, 2010

Judges

Opinion by Circuit Judge  Rogers

Counsel

For Appellant:  Michael T. Gray, US Department of Justice

For Appellee:   Scott White, Morgan & Pottinger, PSC

Mingus v. Butler, No. 08-2286

In an inmate's action under 42 U.S.C. section 1983 and the ADA against a registered nurse at the Correctional Facility, judgment of the district court is affirmed in part, reversed in part, and remanded where: 1) district court's denial of summary judgment on plaintiff's Eighth Amendment claim is reversed as defendant's decision was based on her understanding of the prison policies specified in the Guidelines and did not evince deliberate indifference to the risks plaintiff faced from other prisoners; 2) district court's denial of a claim of sovereign immunity is affirmed on the a different ground that the third prong of Georgia requires that it not be determined whether sovereign immunity is at issue because plaintiff has alleged conduct that violates the ADA and the Fourteenth Amendment independently; 3) district court's denial of defendant's summary judgment on plaintiff's Fourteenth Amendment claim is affirmed; and 4) plaintiff's motion for appointment of counsel pursuant to 6th Cir. R. 34(j)(2)(C) is denied as plaintiff has more than adequately represented himself.   

Read Mingus v. Butler, No. 08-2286

Appellate Information

Argued: October 13, 2009

Decided and Filed: January 5, 2010

Judges

Opinion by Circuit Judge  Gibbons

Counsel

For Appellant:  John L. Thurber, Office of the Michigan Attorney General

For Appellee:   Ned Mingus, pro se