IMMIGRATION

Rodriguez v. US Attorney General, August 29

Rodriguez, convicted of battery while in the US as a lawful permanent resident, disclosed the conviction in his application for naturalization, the immigration judge ordered him removed back to Mexico. Rodriguez moved to reopen the proceedings claiming that he raised a constitutional challenge to the government's failure to provide him with notice of the deportation hearing. The circuit holds that the immigration judge and board of immigration appeals retain jurisdiction to reopen the proceedings to address whether Rodriguez received sufficient notice of the hearing. Remanded.

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IMMIGRATION

Lakhani v. US Attorney General, August 24  

Three Pakistanis living in the US on expired visas moved for continuances of their removal proceedings while awaiting labor certifications from the Department of Labor. The circuit holds that there is no authority for petitioners' claim that the immigration judge was required to grant a continuance based upon the mere pendency of a labor certificate application that had not yet been approved. Also, there is no support that petitioners' equal protection rights were violated by being required to be registered in the National Security Entry-Exit Registration System.

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CIVIL RIGHTS

Dalrymple v. US, August 16

In April 2000, federal agents used tear gas and pepper spray to clear the protestors and bystanders around a home to remove Elian Gonzalez, a young Cuban boy, from the home and send him back to Cuba. Plaintiffs claimed that the government's use of gas during the execution of the warrants resulted in assault, battery and other violations. The circuit holds that plaintiffs failed to meet the statutory prerequisite to sue under the Federal Tort Claims Act and, within the two-year statute of limitations, did not provide a sum certain or any additional documentation to support the damages they sought. Also, many protestors sought to interfere with the INS officers' ability to execute the warrants and remove Elian from the Gonzalez home which justified the use of either pepper spray or tear gas and was objectively reasonable.

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INEFFECTIVE ASSISTANCE

Williams v. Allen, August 2

The circuit holds that petitioner failed to establish a reasonable probability that the outcome of his capital murder would have been different had defense counsel reviewed a file before the cross-examination of a witness or had counsel brought forth mitigating evidence at the penalty phase. Affirmed.

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INEFFECTIVE ASSISTANCE

Sullivan v. Deloach, August 8

A prisoner serving a life sentence for murder claimed that defense counsel failed to call his five-year old daughter to testify. The circuit holds that defendant's daughter's testimony lacked credibility and thus defendant failed to establish that he was prejudiced by his trial counsel's failure to interview her or call her as a witness at trial. Affirmed.

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DEATH PENALTY

Hallford v. Cullivan, August 11

Defendant committed murder during a robbery and received the death penalty. The circuit holds that defendant did not show prejudice from a Brady violation because the victim's boyfriend was the only witness to testify for the State during the penalty phase. Defendant did not establish ineffective assistance from counsel's failure to introduce mitigating evidence at the penalty phase other than the testimony of defendant's mother, as an objectively reasonable lawyer could try the case this way.

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SENTENCING, DRUG OFFENDER

US v. Pope, August 22

Defendant challenged his concurrent 262-month sentences for his drug convictions. The circuit holds that there was no error in the lower court's calculation of the Guidelines range, including its use of the 100:1 crack-to-cocaine ratio of the Drug Quantity Table. There was no Booker error because the court clearly indicated that it understood the Guidelines system was advisory. Also, the lower court properly rejected defendant's claim that it could disregard the 100:1 crack-to-cocaine ratio as part of its calculation of a reasonable sentence under the Guidelines.

ERISA

Popowski v. Parrott, August 24

After Parrott was injured in a car accident, United Distributors paid her related medical expenses and Parrott agreed in a signed document to reimburse United Distributors any funds later received from any third party. Plaintiffs later sought reimbursement when they learned about Parrott's third-party recovery. The circuit holds that Popowski and the Commerce Group seek relief from an identifiable fund and have specified the portion of that fund over which they assert a claim, and thus they have stated a claim for appropriate equitable relief under ERISA. However, the Mohawk plan fails to specify that recovery come from any identifiable fund or to limit that recovery to any portion thereof.

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IMMIGRATION

Camacho-Salinas v. US Attorney General, August 21

Camacho, a Nicaraguan who was convicted of various crimes while a lawful permanent resident of the US a waiver of inadmissibility under the Immigration and Nationality Act. The circuit holds that jurisdiction exists to review Camacho's equal protection claim because the REAL ID Act of 2005 permits jurisdiction to review constitutional claims or questions of law. As to the substance of Camacho's equal protection claim, because a rational basis exists for the seven-year residency requirement for legal permanent residents, he has failed to state such a claim. Therefore, the immigration judge correctly denied Camacho's petition for withholding of removal, based upon the fact that, at the time of the convictions, he had lawfully resided in the US for a little over five years, two years short of the statutory requirement.

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ERISA

Billings v. UNUM Life Insurance Company of America, August 8

Plaintiff sued for the wrongful denial of disability benefits due to Obsessive Compulsive Disorder. The circuit holds that defendant's group long-term disability policy's mental illness limitation on benefits to twenty-two months, due to mental disorders, is ambiguous. Therefore, the limitation does not apply to limit plaintiff's benefits due to Obsessive Compulsive Disorder. Affirmed.

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PRISONER RIGHTS

Boxer X v. Harris, August 9

[Rehearing denied.] Defendant claimed a female guard at his Georgia prison made him strip and masturbate for her enjoyment. J. Birch finds that Boxer has stated a claim under our privacy jurisprudence and for retaliation under the First Amendment. Reversed.

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MURDER, JURY

Valle v. Department of Corrections, August 11

Defendant received the death penalty on firearms and murder charges. The circuit holds that counsel's presentation of model prisoner evidence was not unreasonable or deficient. Defendant failed to show that the grand jury selection procedure employed resulted in substantial under-representation of his race or of the group to which he belongs.

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MURDER, INEFFECTIVE ASSISTANCE

Henyard v. Department of Corrections, August 11

The circuit holds that none of the evidence casts doubt on the fact that defense counsel diligently and strenuously worked to develop as complete a mitigation case as possible. Also, none of the new testimony counters the overwhelming evidence of the brutal, gruesome, and aggravated nature of Henyard's crimes, in which Henyard carjacked and kidnaped a mother and her two young children, raped the mother in her children's presence, shot her four times, and then executed her children from close range.

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DEATH PENALTY

Hill v. McDonough, August 29

The lower court dismissed for lack of jurisdiction a death row inmate's claim that the execution procedure constituted cruel and unusual punishment, after the court found it was the functional equivalent of a successive habeas petition that the inmate had not been authorized to file. The circuit holds that the equities and the merits of Hill's underlying action have not been determined, and the lower court is the appropriate forum for such a determination. Vacated.

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JURY

Anderson v. Department of Corrections, August 31

The circuit holds that perjured testimony that differed at trial from the same witness's testimony before the grand jury was not material, as it would not have affected the grand jury's decision to indict. Also, Anderson's right to a fair trial was not violated by the single, brief glimpse of him on video in prison garb, as the image was too brief and the jury already knew Anderson was incarcerated at the time of the news report in question because his cell mate testified to that effect.

JURISDICTION

Tmesys v. Eufala Drugs, August 30

Defendant sought permission to appeal the lower court's decision to remand to Alabama state court the case filed against it by plaintiff. The circuit holds that both the lower court and the circuit are without jurisdiction under the 2005 Class Action Fairness Act because the lower court's application of Alabama law established that the action was commenced prior to the effective date of the Act, and the lower court properly applied Alabama law to the undisputed underlying facts.

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IMMIGRATION

Merchant v. US Attorney General, August 25

A Pakistani requested a continuance of his removal proceedings based on the fact that he had obtained an approved labor certification and already filed a petition for visa and for adjustment of status. The circuit holds that, while the mere filing of the labor certification application does not render one eligible for adjustment of status, petitioner already had an approved labor certification and the appropriate form had been filed for an employment-based visa. Also, an alien in petitioner's shoes need only be "eligible" to receive the visa, and he is not required to have the visa in hand. Petition granted.

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BANKRUPTCY, CONTRACT

Daewoo Motor America v. General Motors Corp., August 11

Daewoo America claimed that its exclusive distributorship rights of Daewoo cars in the US were violated after a Korean bankruptcy court approved the sale of parent Daewoo Korea and defendants sold Daewoo automobiles. Daewoo America was a claimant represented by counsel in the Korean bankruptcy proceedings but, after notice, did not object to the sale of the Korean parent. The circuit holds that the lower court properly dismissed the claims of Daewoo America on the ground of comity because the relief sought undermined the orders of the Korean court as to the reorganization of Daewoo Korea. Also, because all the claims of Daewoo America, including the unjust enrichment claim, rely on the existence of a written contract, amendment would be futile and the California bankruptcy court did not err when it dismissed the unjust enrichment claim without leave to amend.

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CONSPIRACY, JURY

US v. Woodard, August 8

Defendants used the U.S. mail to carry out a scheme to defraud Atlanta and the owners of money and property that was held in the custody of the Atlanta Police Department. The circuit holds that defendants knowingly agreed to and knowingly acted in an effort to accomplish the conspiracy's objects and a common purpose, a connection between the conspiracy's objects, and an interdependence among the co-conspirators existed and showed a single conspiracy. Thus the lower court correctly refused to instruct the jury on multiple conspiracies.

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EVIDENCE, DEATH PENALTY

Grayson v. King, August 18

A prisoner sentenced to die sought post-habeas access to biological evidence presented at his capital murder trial so that he can subject the evidence to DNA tests. The circuit holds that Grayson's asserted right at issue is not one to material, exculpatory evidence necessary to ensure a fair trial, and thus he has no valid Brady-based claim to the biological evidence. Also, Grayson has never affirmatively proclaimed his actual, factual innocence, and, even if tested and exculpatory as to Grayson, would not prove complete innocence of the only crime for which he was convicted, capital murder during a burglary.

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MIRANDA, ATTORNEYS

US v. O'Keefe, August 22

The circuit finds that due process is not violated by the use of defendant's silence prior to arrest for impeachment purposes, or after arrest if Miranda warnings are not given. Even if there were Miranda warnings, defense counsel opened the door and the government properly limited its use of defendant's post-Miranda silence to challenge defendant's testimony as to his cooperation with the police. Also defendant failed to show that he was prejudiced by the government's remarks in its closing argument, which undoubtedly cast aspersions on defense counsel's integrity.

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DEATH PENALTY

Cramer v. Department of Corrections, August 28

A Florida prisoner challenged the dismissal of his habeas petition as time-barred under the Antiterrorism and Effective Death Penalty Act. The circuit holds that, because an appeal is part of the state collateral review process, and a claim remains pending until the completion of the process, the lower court should not have ruled that the time in which defendant could have filed an appeal from the denial of his motion to correct sentence did not toll the statute of limitations. Reversed.