U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog

November 2010 Archives

Curtis v. Chester, No. 09-3338

Parole-Related Habeas Petition

In Curtis v. Chester, No. 09-3338, a habeas petition under 28 U.S.C. section 2241 challenging the U.S. Parole Commission's decision to revoke his parole and set an above-guidelines reconsideration date of 15 years, the court affirmed the denial of the petition where 1) the police report regarding petitioner's offenses, the police officer's testimony, and petitioner's own testimony provided sufficient indicia of reliability under Kell to permit the admission of the victim's statements; and 2) the use of evidence of dismissed charges did not violate petitioner's rights, especially since the board needed only find a violation by a preponderance of the evidence.

  • US v. Sprenger, No. 10-5005

    Conspiracy to Transfer Firearms Conviction Affirmed

    In US v. Sprenger, No. 10-5005, the court affirmed defendant's conviction for conspiracy to willfully transfer firearms to a person residing outside of his state of residence, where 1) there was no requirement that the firearms transferee be a resident of a state in the U.S.; and 2) the government was responsible for the same burden it originally bore--producing sufficient evidence to prove one of the two charged objects.

    Clark v. Wilson, No. 09-6219

    Action Based on Freezing of Prisoner's Trust Account

    In Clark v. Wilson, No. 09-6219, a civil rights action under 42 U.S.C. section 1983 in response to the freezing of plaintiff's prison trust account, the court reversed the denial of summary judgment based on qualified immunity, holding that plaintiff did not have a clearly established right in 2007 to a predeprivation hearing.

    US v. Wampler, No. 09-6229

    Wire Fraud Conviction Affirmed

    In US v. Wampler, No. 09-6229, a wire fraud prosecution, the court dismissed defendants' appeal from the denial of their motion to dismiss the indictment where defendants' prior, unconsummated plea agreement did not confer jurisdiction on the court to entertain an interlocutory appeal.

    US v. Pablo, No. 09-2091

    Rape and Assault Convictions Affirmed

    In US v. Pablo, No. 09-2091, the court affirmed defendant's rape and assault convictions where 1) the admission of a witness's testimony as it related to a DNA report did not constitute plain error; 2) the prosecution did not actively discourage defendant's two witnesses from testifying through threats of prosecution; and 3) there was insufficient evidence that the victim's injuries were caused by persons other than defendant.

    US v. Hall, No. 09-3165

    Bank Robbery Conviction Affirmed

    In US v. Hall, No. 09-3165, the court affirmed Defendant's convictions for robbing a bank and committing the related crimes of brandishing a firearm in relation to a crime of violence and being a felon in possession of a firearm where 1) a denial of the mistrial was harmless error because defendant's 1984 and 1992 bank robberies were admitted into evidence at trial; and 2) even if the district court's error induced defendant to testify, the error was harmless because defendant would undoubtedly have been convicted had he not testified.

    Thomas v. US Disciplinary Barracks, No. 09-3291

    Habeas Petition by Military Prisoner

    In Thomas v. US Disciplinary Barracks, No. 09-3291, a habeas petition by a military prisoner, the court affirmed the dismissal of the petition where the district court correctly applied the court of appeals' precedent in determining that petitioner's claims were not entitled to additional review because the military courts gave them full and fair consideration.

    EnergySolutions, LLC v. Utah, No. 09-4122

    Challenge to Radioactive Waste Compact

    In EnergySolutions, LLC v. Utah, No. 09-4122, an action claiming that the Northwest Interstate Compact on Low-Level Radioactive Waste did not have statutory authority over plaintiff's facility, the court affirmed summary judgment for defendants where the Northwest Compact allowed its member states to exclude low-level radioactive waste from disposal at a Utah site.

    Sampson v. Buescher, No. 08-1389

    First Amendment Challenge to Ballot Expenditure Law

    In Sampson v. Buescher, No. 08-1389, a First Amendment challenge to a Colorado law requiring that any group of two or more persons that had accepted or made contributions or expenditures exceeding $200 to support or oppose a ballot issue must register as an issue committee and report the names and addresses of anyone who contributes $20 or more, the court reversed summary judgment for defendants where there was virtually no proper governmental interest in imposing disclosure requirements on ballot-initiative committees that raised and expended so little money, and that limited interest cannot justify the burden that those requirements imposed on such a committee.

    In re: C.W. Mining Co., No. 10-4028

    Appeal from Bankruptcy Court Contempt Order

    In In re: C.W. Mining Co., No. 10-4028, creditors' appeal from an order of the Bankruptcy Appellate Panel affirming a contempt order of the bankruptcy court, the court affirmed where 1) given a facially plausible motion, creditors were not denied due process because they were afforded adequate notice and a meaningful opportunity to be heard; and 2) creditors' argument that Local Rule 9013-1(c) is unconstitutional was not previously raised; and 3) the bankruptcy court did not exceed its authority by voiding the actions taken by creditors in violation of the automatic stay.

    Garcia-Carbajal v. Holder, No. 09-9558

    Petition for Review of BIA Removal Order

    In Garcia-Carbajal v. Holder, No. 09-9558, a petition for review of a BIA order of removal, the petition is dismissed where petitioner did not raise the ground for review to the BIA, and petitioner did not exhaust his administrative remedies as the BIA did not: 1) clearly identify a claim, issue, or argument not presented by the petitioner; 2) exercise its discretion to entertain that matter; and 3) explicitly decide that matter in a full explanatory opinion or substantive discussion.

    Cavanaugh v. Woods Cross City, No. 10-4017

    Denial of Qualified Immunity in Excessive Force Action Affirmed

    In Cavanaugh v. Woods Cross City, No. 10-4017, an action under 42 U.S.C. section 1983 alleging that defendant-officer's Tasering of plaintiff violated her rights under the Fourth Amendment by using excessive force, the court affirmed the denial of summary judgment based on qualified immunity where 1) although Tasers may not constitute deadly force, their use unquestionably "seizes" the victim in an abrupt and violent manner; 2) plaintiff did not pose an immediate threat to defendant or anyone else at the scene; and 3) a reasonable jury could easily conclude that when the Taser was deployed plaintiff was not fleeing -- she was quickly walking towards her own home -- where defendant could easily arrest her if he so desired.

    US v. Johnson, No. 10-6066

    Armed Career Criminal Act Sentence Affirmed

    In US v. Johnson, No. 10-6066, defendant's conviction and sentence for possession of a firearm after former conviction of a felony are affirmed where 1) the district court did not err in concluding that probable cause supported the search of defendant's automobile; and 2) because Missouri treated defendant's prior offenses of conviction as felony crimes, i.e., treated defendant as an adult, those convictions were properly counted as predicate offenses under the Armed Career Criminal Act.