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

April 2010 Archives

Nullification of 1978 First-Degree Murder Conviction Upheld

In Gall v. Scroggy, No. 08-6553, the Sixth Circuit dealt with a defendant's petition for habeas relief seeking an order mandating that the Commonwealth of Kentucky vacate his 1978 murder conviction and sentence of death.

In affirming the district court's judgment declaring the conviction nullified, the court first resolved the issue of whether proper jurisdiction existed by concluding that the district court retained jurisdiction to consider and grant defendant's motion as the option provided by the Commonwealth by the conditional writ was to initiate involuntary commitment proceedings and when it failed to exercise that option, the writ became absolute.

The court also held that the venue was proper in the U.S. District Court for the Eastern District of Kentucky, that defendant adequately alleged injury, and that he has not waived or procedurally defaulted on his right to request nullification and expungement of the conviction. 

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La Quinta Corp. v. Heartland Properties LLC, No. 08-6368, concerned a challenge to the district court's judgment in favor of plaintiff in an action for breach of a hotel franchise agreement and federal trademark infringement.  In affriming the district court's judgment, the court held that there was no abuse of discretion in denying defendant's belated discovery motion, and in the award of treble damages given the abundant evidence that defendant willfully infringed upon plaintiff's trademarks.  The court also held that the district court did not err in granting plaintiff's motion for summary judgment and denying defendant's motion for same with respect to the breack of contract claims. 

In Reed-Bey v. Pramstaller, No.08-1774, the Sixth Circuit faced a challenge to district court's dismissal of an inmate's section 1983 suit against Michigan prison officials claiming he was denied adequate medical care in violation of his Eight and Fourteenth Amendment rights.  In reversing the dismissal, the court held that the inmate exhausted his claim because the Michigan Department of Corrections opted to dismiss the grievances on the merits rather than invoke its procedural bar.

Fieger v. Corrigan, No. 08-1122 involved a suit brought by a trial attorney and politician, regarding an ongoing feud with several justices of the Michigan Supreme Court, seeking a declaration that the state's recusal rules deny him his constitutional right to a fair tribunal in which to be heard.  However, the case is dismissed as moot because this case substantially mirrors the claims of plaintiff's 2004 case, so too should the result.

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Decisions in Criminal Cases Involving Sentencing Issues

In Hooks v. Sheets, No. 08-4549, the Sixth Circuit faced a challenge to the district court's imposition of the same sentence, following a remand for resentencing in light of State v. Foster, 845 N.E.2d 470 (Ohio 2006).  Because defendant was always subject to consecutive rather than concurrent sentences in the discretion of the trial court, his resentencing under Foster did not raise ex post facto or due process concerns, and as such, defendant's sentence is affirmed.

US v. Woods, No. 07-5463, concerned a challenge to the district court's imposition of a 108-months' imprisonment for a conviction on one count of manufacturing methamphetamine.  In vacating the sentence and remanding for resentencing, the court held that although the district court correctly applied an enhancement under the guidelines for reckless endangerment during flight, its finding that the possession of a firearm by a co-conspirator was reasonably foreseeable is without evidentiary support and clearly erroneous as it relied on an inference that if a drug conspiracy involves substantial amount of drugs, a defendant should foresee that a co-conspirator is likely to possess firearms. 

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Stanley v. Vining, No. 08-2634, concerned a pro se prisoner's 28 U.S.C. section 1983 suit claiming that a prison gaurd violated his constitutional rights by reading his "legal mail" and for issuing a prison misconduct charge against him in retaliation for making the complaint.

As the court wrote: "Although Stanley has a First Amendment right to be free from unreasonable mail censorship, he has not First Amendment right that prevents a guard from opening his mail in his presence and reading it with an eye to determining if illegal conduct is afoot.  The law has not established that reading properly marked legal mail in inmates' presence violates constitutional rights in and of itself."

In affirming the district court's dismissal for failure to state a claim, the court held that defendant's have provided the prisoner with a post-deprivation hearing and have not violated procedural due process and his substantive due process claim under the First Amendment for denial of access to the courts by interfering with his "legal mail" fails as there must be some allegation that the prison official's conduct amounted to denial of access to the courts or some form of censorship of speech.  Lastly, with respect to the Sixth Amendment claim for deprivation of the right to counsel through the guard's interferences with the prisoner's mail, he fails to allege that the guard's conduct created any barrier to his relationship with counsel.

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Civil Rights Case Against a City and Officers for Fatal Shooting

Estate of Smithers v. City of Flint, No. 09-1164, involved a 42 U.S.C. sections 1983 and 1985(2) & (3) suit against a city and two police officers in connection with the fatal shooting of an individual and the injury of two other plaintiffs, by the deceased individual's girlfriend shortly after being released from custody for trespassing.

In rejecting the plaintiffs' main contention that the officers are liable because they arrested the girlfriend for trespassing rather than for domestic violence, which would have kept her in custody longer, the court affirmed the dismissal of the claims in holding that the district court did not err in granting defendants' summary judgment on the procedural due process claim.  The court also held that the plaintiffs failed to establish a substantive due process claim as the officers' actions could not have been interpreted by a reasonable jury to have created or increased the danger to plaintiffs.  Lastly, district court did not err in dismissing the civil conspiracy claim and in granting defendants' motion for summary judgment on plaintiffs' equal protection claim. 

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Sanctions Imposed in Misappropriation of Trade Secrets Suit Vacated

BDT Prod., Inc. v. Lexmark Int'l, Inc., No. 08-6140, involved a challenge to the district court's grant of defendants' motion for attorney fees and imposition of sanctions to the extent of those fees, arising from a grant of summary judgment in favor of defendant in a suit brought by its one-time partners claiming that defendant had misappropriated trade secrets in developing a printer tray that substantially resembled a tray developed by plaintiff.

First, because sanctions under 28 U.S.C. section 1927 may be imposed only on individual attorneys, and not law firms, the imposition of sanctions, insofar as they are imposed upon the law firm Meisenheimer, is vacated.  Second, the district court did not abuse its discretion in determining that Meisenheimer pursued a meritless lawsuit, and that it knew or should have known that it was pursuing a meritless suit.  However, because the district court relied in part on a misstatement of Sixth Circuit law and without sufficient evidence imputed plaintiff-company's and the other law firm's improper purpose to Meisenheimer in finding that it had acted in bad faith, the judgment is vacated and remanded. 

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US v. Tristan-Madrigal, No. 09-1003, involved a challenge to the district court's imposition of a thirty-six month, above guidelines, sentence in a conviction for unauthorized entry from Mexico for the fourth time.  In rejecting defendant's claim that the sentence is substantively unreasonable, the court held that the consideration of defendant's past drunk-driving convictions and unauthorized reentries was proper as they were directly related and the district court did not abuse its discretion by relying on defendant's need for rehabilitation.

In Binay v. Bettendorf, No. 09-1249, the Sixth Circuit faced a challenge to the district court's denial of defendants' motion for summary judgment on the ground that they were not entitled to qualified immunity under federal law or governmental immunity under Michigan law, in plaintiffs' 42 U.S.C. section 1983 suit against police officers in connection with the execution of a search warrant at plaintiffs' apartment for drugs. 

In affirming the denial, the court held that plaintiffs have alleged sufficient facts to show that defendants' conduct violated the Fourth Amendment and also alleged sufficient facts to show that there is a disputed issue of material fact as to whether the two officers were personally involved in the constitutional violations.  Furthermore, the district court did not err in determining that the officers were not entitled to qualified immunity as to plaintiffs' Fourth Amendment claims or entitled to governmental immunity as to assault and battery claims, because if plaintiffs' allegations are true concerning officers' continued force against them, there is a question of fact as to whether the officers believed that they were acting within scope of their authority. 

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Criminal Matters, Including Death Row Inmate's Section 1983 Claim

Durr v. Cordray, No. 10-3463 concerned a death row inmate's 42 U.S.C. section 1983 suit challenging Ohio's denial of access to  certain physical evidence for purposes of DNA testing.  Although district court's determination that the action is second or successive habeas petition was in err, defendant's motion for a temporary restraining order or a preliminary injunction staying his execution is denied as even if he were to prevail on his section 1983 claims, he would not be entitled to a stay of his execution.

US v. Carey, No. 09-3399, involved a challenge to the district court's denial of defendant's petition for an order to expunge his conviction for conducting an illegal gambling business.  In affirming the denial, the court held that because Congress's prohibition on felon possession of firearms is constitutional, it follows that the burdens associated with congressionally-created expungement exception in U.S.C. section 921(a)(20) do not violate the Second Amendment. 

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Conditional Grant of Habeas Relief On Ineffective Assistance Claim

In English v. Romanowski, No. 08-2611, the Sixth Circuit faced a challenge to the district court's decision to grant a conditional habeas relief on the ground that defendant's trial counsel rendered him ineffective assistance. 

Here, the district court erred in granting defendant's habeas relief on the ground that the trial counsel was ineffective for failing to call a witness, as it cannot be said that it was an unreasonable application of Strickland for the state court to find that defendant failed to rebut the presumption of reasonableness with respect to his attorney's decision.  However, district court was correct to grant relief on the ground that the trial counsel's failure to adequately investigate the decision not to call the witness before trial was deficient performance under the first prong of Strickland test and but for counsel's ineffectiveness, there is a reasonable probability that the outcome would have been different. 

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American Booksellers Found. for Free Expression v. Strickland, No. 07-4375 involved a plaintiffs's suit claiming that Ohio Revised Code section 2907.31(D)(1), that criminalizes sending juveniles material that is harmful to them, is unconstitutional under the First Amendment and Commerce Clause. 

As the Ohio Supreme Court held: "Scope of section 2907.31(D) is limited to electronic communications that can be personally directed, because otherwise the sender of matter harmful to juveniles cannot know or have reason to believe that a particular recipient is a juvenile."  The court went on to hold that a person who posts harmful material to juveniles on generally accessible websites and in public chat rooms does not violate the section because such postings do not allow that person to prevent a particular recipient from receiving the information.

Thus, in holding that the statute does not violate the First Amendment or the Commerce Clause as the scope of the statute is limited to personally directed electronic communications, district court's entry of judgment in favor of the plaintiffs is reversed and permanent injunction enjoining enforcement of the statute is vacated. 

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Lee v. Javitch, Block & Rathbone LLP, No. 08-4485 involved a plaintiff's suit against a law firm alleging violation of the Fair Debt Collection Practices Act and the Ohio Consumer Sales Practices Act, claiming that the firm filed a false affidavit in its application for a non-wage garnishment of plaintiff's bank account. 

In reversing the district court's judgment in favor of the plaintiff, the court concluded that plaintiff failed to establish that a reasonable attorney would have conducted additional investigation as the evidence does not support a conclusion that reasonable attorneys would have subpoenaed plaintiff's bank records regarding whether plaintiff's account may have contained nonexempt funds. 

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In US v. Taylor, No. 09-3019, the court faced a challenge to the district court's grant of defendant's motion to suppress evidence in his conviction for being a felon in possession of a firearm and ammunition.  At issue was whether a femal tenant of the apartment, where defendant was found pursuant to a state warrant for his arrest, had apparent authority to consent to the search of a shoebox.

In concluding that there was ambiguity over whether the tenant had mutual use or control of the shoebox and that the officers failed to cure this ambiguity by asking either the tenant or defendant to clarify the situation, the court reversed the district court's denial of motion to suppress as the tenant lacked the apparent authority to consent to the search of the shoebox. 

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Smith v. County of Lenawee, No. 09-1703, concerned an action brought by a deceased plaintiff's estate against a county and various agents of the county sheriff's department and department of corrections for the death of the plaintiff while in custody of the sheriff's department. 

As stated in the decision: "[T]he facts show that Smith had been experiencing DT symptoms for close to forty-eight hours prrior to Moore's arrival at the jail, that a physician had been notified of Smith's condition, that jail officials were told to monitor Smith, and that Moore was present at the jail for a matter of minutes only."

Thus in applying the facts to Michigan's narrow definition of proximate cause for the purposes of governmental immunity, which is defined as "the one most immediate, efficient, and direct cause preceding an injury," the court reversed the district court's denial of defendant-parole agent's motion for summary judgment as his actions were not the proximate cause of plaintiff's death and is thus entitled to governmental immunity.

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Dismissal of RICO Suit Against Health Insurer is Upheld, Plus Criminal Matters

Riverview Health Inst. v. Med. Mut. of Ohio, No. 08-4431, involved an action brought by out-of-network providers of health care services against an insurer and its officers raising claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), ERISA, and state law.

The circuit court upheld the dismissal of plaintiffs claims finding that: 1) plaintiffs' RICO claims are reverse preempted by Ohio state law, pursuant to the McCarran-Ferguson Act; and 2) the district court did not err in denying plaintiffs' request to amend their complaint in order to add a federal estoppel claim.        

In US v. Anglin, No. 08-5018, the circuit court was again faced with a sentence for bank robbery which had been imposed following a prior remand. The circuit again reversed and remanded the matter where intervening decisions by the Supreme Court and the circuit court required re-addressing the question of whether defendant's 18 U.S.C. section 751(a) conviction should be categorized as a crime of violence for purposes of his status as a career offender.         

US v. Smith, No. 08-2345, dealt with defendants' convictions arising from their involvement in a large drug conspiracy.  The circuit court affirmed the convictions as: 1) the district court properly sustained an objection to a former IRS agent's tax return testimony and struck that testimony from the record, and no further response was necessary; 2) allowing agent's testimony that defendant was a "driver" for the conspiracy was not an abuse of discretion because this testimony was part of the agent's expert testimony about the structure of the cocaine conspiracy, a matter not within the ordinary knowledge of jurors; and 3) a failure to instruct the jury about the different forms of witness testimony was an error, but it was not plain error; 4) as to other defendant, evidence from a traffic stop was properly admitted because the vehicle was stopped for speeding and all extensions of the stop were supported by reasonable suspicion; 5) sufficient evidence sustained the jury verdict; and 6) any error resulting from the district court's failure to instruct the jury that "proceeds" means "profits" was not plain because the controlling opinion of the relevant Supreme Court decision expressly stated that a "profits" definition was not appropriate where the laundered money had been acquired from distributing contraband.

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Goff v. Bagley, No. 06-4669, involved a challenge to the district court's denial of defendant's request for habeas relief from his capital murder convictions.  In reversing the denial, the court granted a conditional writ of habeas corpus as defendant's appellate counsel was ineffective as he failed to raise on direct appeal the issue of defendant's right to allocution before sentencing, and the opposite conclusion reached by the Ohio Supreme Court is an unreasonable application of federal law.  Defendant's remaining claims are rejected including, most noteably, the jury instructions regarding "acquit-first" and unanimity in mitigation factors, as the jury instructions and verdict forms utilized at trial are conceptually indistinguishable from those at issue in Spisak III.

US v. Everett, No. 09-5111, concerned a challenge to the district court's denial of defendant's motion to suppress a gunshot found in his vehicle during a traffic stop in convicting defendant for being a felon in possession of a firearm.  At issue was whether the officer's questioning on a subject unrelated to defendant's traffic offense and voluntarily answered by the defendant, violated the  Fourth Amendment.  In affirming district court's denial of the motion, the court held that the questions about whether defendant had weapons, drugs or any illegal items in the vehicle did not render the traffic stop an unreasonable seizure under the Fourth Amendment.

Lastly, Balmert v. Reliance Standard Life Ins. Co., No. 08-4433, involved a plaintiff's ERISA claim challenging the employee benefit plan provider's limited grant of long-term disability benefits for symptoms related to rheumatoid arthritis.  In affirming the district court's judgment upholding the defendant's determination, the court held that there was substantial evidence to support the benefits determination, and as such, it was not arbitrary and capricious.

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In Dorn v. Lafler, No. 08-1594, the Sixth Circuit faced a challenge to a district court's denial of defendant's request for habeas relief claiming ineffective assistance of counsel and denial of an appeal as of right in violation of his constitutional right to access the court. 

As stated in the decision: "Dorn gave prison officials his appeal papers seven days before they had to be received by the court.  This gave the prison a reasonable amount of time within which to mail the papers such that they would be received before his filing deadline." 

Thus, in reversing the district court's denial of habeas relief, the court held that the prison's handling of defendant's papers precluded him from pursuing his statutory right of appeal and under Roe v. Flores-Ortega, 528 U.S. 470 (2000), the defendant is entitled to a presumption of prejudice. 

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Pendley v. Fed. Mine Safety & Health Review Comm'n, No. 09-3213 involved a plaintiff's petition for review of an order of the Federal Mine Safety & Health Reivew Commission, which affirmed the ALJ's ruling against the petitioner in his suit against his former employer claiming wrongful termination. 

In granting in part and denying in part the petititon, the court held that the Commission erred in its analysis of the ALJ's decision with regard to defendant's three-part justification for terminating plaintiff's employment, as at the very least, the Commission departed from its own precedent without articulating a reason for doing so.  In addition, the Commission erred in finding that the plaintiff's post-reinstatement working conditions did not constitute adverse action by the employer.

Estate of Timken v. US, No. 09-3650, involved an issue of whether the incidence of the estate tax can skip a generation when a pre-GST tax irrevocable trust does not mandate a generation-skipping transfer but merely grants discretion to the trustee or others to skip generations in transferring of assets.  In affirming the district court's decision, the court held that the transfers at issue are subject to the GST tax because the grandfathering exemption is ambiguous as applied to this case, the regulation is a reasonable interpretation of the grandfathering exemption, and this case falls within the regulation. 

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Ultimate Appliance CC v. Kirby Co., No. 09-3297, dealt with a district court's denial of plaintiff's motion for a filing extension holding that it had no authority to grant filing extension once the Rule 4 deadline had expired.

Under Fed. Rule of Appellate Proc. 4, a notice of appeal must be filed within 30 days after the judgment or order appealed from is entered, but a party may move for a filing extension within thirty days of the expiration of the initial time period.  Also, a recent decision by the Supreme Court in Bowels v. Russell held that a petitioner's failure to file a notice of appeal in accordance with the statute deprived the court of appeals of jurisdiction. 

Thus, the court affirmed the district court's decision that it lacked authority to grant the plaintiff's untimely motion. 

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