Sixth Circuit Cases

News: Sixth Circuit Sets New Attorney Fees for Appeals Under Criminal Justice Act

Sixth Circuit Sets New Attorney Fees for Appeals Under Criminal Justice Act. from Lawreader.com post.

Jun. 18-22, 2007 6th Circuit Published Decisons: NONE!

No published decisions this week!

News: Vacancy Announcements for Circuit Executive and Attorney Staff Position

• The Office of the Staff Attorneys for the United States Court of Appeals for the Sixth Circuit is currently recruiting for a staff attorney position.  Open till filled. More Information

• The Sixth Circuit Judicial Council is currently accepting applications for the position of Circuit Executive. The application period for this announcement has been extended. More Information

News: Sixth Circuit Opinion Shuts Out Cincinnati Offense Against Bengals in Antitrust Stadium suit

Sixth Circuit Opinion Shuts Out Cincinnati Offense Against Bengals in Antitrust Stadium suit from Lawreader.com post.

News: 6th. Cirt. Upholds Privacy of Internet e-mail

6th. Cirt. Upholds Privacy of Internet e-mail from LawReader.com post.

Jun 11-15, 2007: 6th US Cir. PUBLISHED Decisions (NO Ky Cases)

Opinion	Pub Date	Short Title/District
07a0215p.06	2007/06/11	USA v. White USA v. Suhadolnik     Northern District of Ohio at Youngstown CRIMINAL: MEDICARE FRAUD CLAY, Circuit Judge. Defendant Richard B. White appeals his conviction for fourteen separate criminal counts, his sentence of 90-months imprisonment, $7,290,202 in restitution, and two years of supervised release, as well as the district court’s order denying his motion for new trial. Defendant Michael A. Suhadolnik appeals his related conviction for one count of wire fraud, as well as the district court’s order denying his motion for new trial. For the reasons that follow, we AFFIRM Defendants’ convictions; VACATE the district court’s order denying Defendants’ motions for new trial and REMAND for an evidentiary hearing; and VACATE Defendant White’s sentence and REMAND for resentencing.
07a0216p.06	2007/06/11	Geboy v. Brigano     Southern District of Ohio at Columbus HABEAS CORPUS ROSEN, J.:  After exhausting his state remedies, Petitioner commenced the present habeas action under 28 U.S.C. § 2254, advancing five claims of constitutional error. The district court granted the writ as to the first of Petitioner’s claims, but found that his remaining claims lacked merit. The Respondent warden, Anthony Brigano, now appeals this grant of relief to Petitioner, and Petitioner, in turn, challenges the dismissal of his remaining claims. For the reasons set forth below, we reverse the district court’s grant of relief to Petitioner and affirm the district court’s denial of relief as to the two other claims for which Petitioner has secured a certificate of appealability.
07a0217p.06	2007/06/12	Klepsky v. United Parcel Ser     Northern District of Ohio at Cleveland WHISTLEBLOWER BOYCE F. MARTIN, JR., Circuit Judge. Plaintiff Thomas Klepsky claimed that he was terminated from Defendant United Parcel Service (“UPS”) in violation of the Ohio Whistleblower Protection Act and Ohio public policy. The district court granted UPS’s motion for summary judgment. We now affirm that decision for the following reasons.
07b0007p.06	2007/06/13	In re: Robert Fox v.     Northern District of Ohio at Youngstown BANKRUPTCY JAMES D. GREGG, Bankruptcy Appellate Panel Judge. Cash America Financial Services, Inc. (“Appellant”) appeals the bankruptcy court’s judgment holding that Robert R. Fox (“Debtor”) was not personally liable for the debt owed to the Appellant by the Debtor’s corporation, R.R. Fox, Inc. (“R.R. Fox”). In so holding, the bankruptcy court rejected the Appellant’s claim that the debt should be excepted from the Debtor’s discharge under §§ 523(a)(4) or (a)(6) of the Bankruptcy Code. For the reasons that follow, the bankruptcy court’s judgment is AFFIRMED.
07a0218p.06	2007/06/14	Thoroughbred Soft v. Dice Corp     Eastern District of Michigan at Bay City COPYRIGHT SOLOMON OLIVER, JR., District Judge. Plaintiff-Appellant Thoroughbred Software International, Inc. (hereinafter, “Thoroughbred”) appeals the award of damages and attorney’s fees in a case where the district court found Defendants-Appellees Dice Corporation and Clifford V. Dice (hereinafter, collectively, “Dice Corp.”) liable for copyright infringement. Thoroughbred appeals the district court’s denial of: (1) an award of actual damages for infringing software that was not used by Dice Corp.’s customers; (2) profits that Dice Corp. earned as a result of the infringement; and (3) attorney’s fees on the ground that Thoroughbred was not a prevailing party. For the following reasons, we REVERSE the district court’s judgment denying actual damages for the unused infringing software; AFFIRM the denial of profits; and VACATE the district court’s denial of attorney’s fees. We hereby REMAND this action to the district court to enter judgment in favor of Thoroughbred on its claim for actual damages for the unused infringing software in the amount of $183,794.25, and to determine whether Thoroughbred, as the prevailing party, is entitled to an award for attorney’s fees.
07a0219p.06	2007/06/15	Matovski v. Gonzales     Board of Immigration Appeals With this case, Petitioners Ljupco Matovski and Violeta Matovska, his wife, (together, the “Matovskis”) seek review of a decision of the Board of Immigration Appeals (“Board”) that found them deportable. Petitioners say they qualify for employment-based permanent resident status. The Respondent, United States Attorney General Alberto R. Gonzales, disagrees.
07a0220p.06	2007/06/15	Bu v. Gonzales     Board of Immigration Appeals MARTHA CRAIG DAUGHTREY, Circuit Judge. In this asylum case, petitioner Yidong Bu challenges the decision of the Board of Immigration Appeals (BIA) summarily affirming the immigration judge’s denial of Bu’s asylum application. Because we conclude that the immigration judge misapprended the nature of Bu’s claim that he had suffered past persecution in his native China based on political opinion, and because substantial evidence fails to support the denial of asylum, we find it necessary to remand the case to the immigration court for reconsideration.
07a0221p.06	2007/06/15	Walls v. Konteh     Northern District of Ohio at Toledo HABEAS CORPUS: MISTRIAL ALAN E. NORRIS, Circuit Judge. Warden Kelleh Konteh appeals from the judgment of the district court granting petitioner Lawrence Walls a writ of habeas corpus based upon its conclusion that the sua sponte declaration of a mistrial by the judge in his state-court trial violated petitioner’s right not to be placed twice in jeopardy. Walls v. Konteh, 418 F. Supp. 2d 962 (N.D. Ohio 2006). This appeal requires us to balance petitioner’s double jeopardy interest against the determination of the state trial judge that calamitous events occurring outside the courtroom – the September 11, 2001 attacks upon the World Trade Center and Pentagon – created the kind of “manifest necessity” that justified a mistrial. While there are undoubtedly considerations that weigh in favor of the contrary position, we conclude that the trial judge acted within the bounds of his discretion in view of the novel and fluid circumstances that existed at the time of his decision. Specifically, he expressed concern that the jurors would be so distracted by outside events that they would be unable to focus on the trial, thereby compromising petitioner’s right to a verdict based upon the evidence. Because this case comes to us in a habeas posture, a writ may issue only if we conclude that the state-court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). For the reasons that follow, we hold that the Ohio Court of Appeals’ affirmance of the declaration of a mistrial was neither “contrary to,” nor an “unreasonable” application of, federal law. Consequently, the judgment of the district court must be reversed.
07a0222p.06	2007/06/15	Elias v. Gonzales     Board of Immigration Appeals PER CURIAM. In this asylum case, petitioner Najah Gorges Elias, a native of Iraq and Chaldean Christian, seeks reversal of a Board of Immigration Appeals (“BIA”) decision dismissing his appeal from an oral decision of an Immigration Judge (“IJ”). For the following reasons, we grant the petition for review, vacate the decision of the BIA, and remand for a new hearing before another IJ.
07a0223p.06	2007/06/15	USA v. Bailey     Eastern District of Tennessee at Chattanooga CRIMINAL KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Ricky Travis Bailey (“Bailey”) pleaded guilty to conspiracy to distribute in excess of five grams of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B), and aiding and abetting possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2. The district court sentenced Bailey to seventy months in prison. On appeal, Bailey argues that the district court erred in failing to state that the Sentencing Guidelines are advisory, that the sentence imposed is both procedurally and substantively unreasonable, and that the district court erred in denying Bailey’s request for a role reduction. We disagree, and for the following reasons, we AFFIRM the sentence pronounced by the district court.

Jun 4-8, 2007: 6th US Cir. PUBLISHED Decisions (2 Ky Cases)

Opinion	Pub Date	Short Title/District
07a0204p.06	2007/06/04	Marroquin v. Gonzales     Board of Immigration Appeals IMMIGRATION The petitioner seeks judicial review of a decision of the Board of Immigration Appeals (“BIA”) denying his motion to reopen his removal proceedings and rescind an immigration judge’s in absentia order of removal. The petitioner’s proof brief was filed on March 26, 2007. The respondent now moves to remand this case to the BIA to consider the issue of whether the petitioner carried his burden to demonstrate that the in absentia order of removal should be rescinded pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii) because he did not receive notice of the removal hearing. The petitioner does not oppose the motion. The effect of a remand is to render the BIA’s decision nonfinal “and hence not judicially reviewable.” Ren v. Gonzales, 440 F.3d 446, 448 (7th Cir. 2006). A remand will not, however, result in the loss of the petitioner’s right to judicial review. See Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir. 2002). In view of the foregoing circumstances, we find the respondent’s motion to be well taken. The petitioner is cautioned that if the BIA does not rule in his favor, a new timely petition for review must be filed. The motion for remand is GRANTED.
07a0205p.06	2007/06/04	Northland Family v. Cox     Eastern District of Michigan at Detroit ABORTION LAW HELD UNCONSTITUTIONAL BOYCE F. MARTIN, JR., Circuit Judge. The Michigan Attorney General appeals the district court’s decision declaring unconstitutional a state law that regulates abortion methods. Because we find that Michigan’s law fails to comply with the explicit limitations that the Supreme Court has established for statutes regulating abortion, we agree with the district court’s disposition, and affirm.
07a0206p.06	2007/06/06	Fox v. DeSoto     Western District of Kentucky at Louisville RALPH B. GUY, JR., Circuit Judge. Plaintiff Brandon Fox appeals from the judgment entered in favor of defendants Officer Ronald DeSoto and the Louisville Regional Airport Authority on claims arising from his arrest and subsequent prosecution for disorderly conduct and resisting arrest. The district court dismissed plaintiff’s state law claims for false arrest and imprisonment and for assault and battery as time-barred, and granted summary judgment to defendants on the remaining claims. The district court found DeSoto was entitled to qualified immunity on the plaintiff’s Fourth Amendment claims, and concluded that the plaintiff could not prevail on either the claim for malicious prosecution against DeSoto or on the derivative claim against the Airport Authority for negligent hiring, training, and/or retention of DeSoto. After review of the record and the applicable law, we affirm the judgment, albeit on the somewhat different grounds as dictated by the recent decision in Wallace v. Kato, 127 S. Ct. 1091 (2007).
07a0207p.06	2007/06/05	Garza-Moreno, et al. v. Gonzales     Board of Immigration Appeals COOK, Circuit Judge. Porfirio Garza-Moreno and his son Mario Garza-Garcia petition this court to review the Board of Immigration Appeals’ (BIA) order to have them removed from the United States. We dismiss the petition in part and deny it in part.
07a0208p.06	2007/06/05	TransAmerica v. USA, et al.     Western District of Kentucky at Louisville COOK, Circuit Judge. Settlement Capital Corporation (“Settlement Capital”) appeals a district court’s order granting summary judgment in favor of the United States on the basis of federal sovereign immunity. We affirm. This case turns on whether the doctrine of federal sovereign immunity deprives a state court of jurisdiction to approve a transfer of structured-settlement payment rights where the United States nominally owns—but has no beneficial interest in—the annuity funding these payments. If federal sovereign immunity applies, summary judgment should be granted in favor of the government. Cf. Akers v. Alvey, 338 F.3d 491, 497 (6th Cir. 2003).
07a0209p.06	2007/06/05	USA v. Jones     Middle District of Tennessee at Nashville KAREN NELSON MOORE, Circuit Judge. Appellant-Defendant Climmie Jones, Jr. (“Jones”), was convicted by a jury of twenty-one drug and firearms charges. After two prior appeals and remands for resentencing and other proceedings, Jones now appeals his latest sentence of 168 months in prison, six years of supervised release, and a $1,050 special assessment. Jones argues through counsel that the district court erred by applying the preponderance-of-the-evidence standard for judicial fact-finding during sentencing and that his sentence was procedurally and substantively unreasonable. Jones also argues pro se that he was denied the right to represent himself, that the district court erred in calculating the length of two of his twenty-one concurrent six-year terms of supervised release, that his sentence violated the Double Jeopardy Clause, that he was denied access to certain documents, and that he received ineffective assistance of counsel. Because the length of Jones’s two terms of supervised release for his two firearms convictions exceeds the statutory maximum, and because eight of Jones’s convictions subjected him to multiple punishments in violation of the Double Jeopardy Clause, we VACATE the judgment of the district court and REMAND for the limited purpose of entering an amended judgment that remedies these two errors.
07a0210p.06	2007/06/06	Lane v. LaFollette     Eastern District of Tennessee at Knoxville CLAY, Circuit Judge. Plaintiff Landon Lane is the former Recreation Director of the city of LaFollette, Tennessee (the “City”). In the November, 2004 mayoral election, Plaintiff supported Defendant Cliff Jennings’ opponent, Lucy Lobertini. Defendant Jennings won the election. After the election, Defendants Jennings, Robert Fannon and Hansford Hatmaker, all members of City Council, voted to terminate Plaintiff. Plaintiff sued Defendants in their individual and official capacities pursuant to 42 U.S.C. § 1983, alleging, inter alia, that they violated several of his rights secured by the United States Constitution, primarily his First and Fourteenth Amendment right not to be terminated from government employment on account of his political beliefs. Defendants moved for summary judgment, arguing that they did not vote to terminate Plaintiff because of his political beliefs, and, even if they had, the nature of Plaintiff’s position was such that Plaintiff could legally be terminated for political reasons. Defendants also contended that their actions were protected by the doctrine of qualified immunity. The district court denied Defendants’ motion for summary judgment with respect to Plaintiff’s federal constitutional claims, and Defendants brought this interlocutory appeal challenging the district court’s refusal to credit their defense of qualified immunity. In addition, Defendants challenge the district court’s refusal to grant summary judgment in their favor on Plaintiff’s official-capacity claims. For the reasons that follow, we AFFIRM the district court’s denial of qualified immunity, and DISMISS Defendants’ challenge to Plaintiff’s official-capacity claims for want of jurisdiction.
07a0211p.06	2007/06/06	River City Capital v. Bd of County Comm     Southern District of Ohio at Cincinnati BOYCE F. MARTIN, JR., Circuit Judge. This case presents a familiar question in our circuit: whether a plaintiff in Ohio may proceed directly in federal court based on an alleged unconstitutional taking of his private property by a government entity, or whether he must first exhaust Ohio state remedies. We hold that state exhaustion is required, regardless of the nature of the taking, in keeping with this Court’s recent decisions in Coles v. Granville, 448 F.3d 853 (6th Cir. 2006) and McNamara v. Rittman, 473 F.3d 633 (6th Cir. 2007). Because Plaintiff River City Capital has failed to exhaust its state avenues for relief, the case is not ripe for review, and thus we VACATE the order of the district court in all respects, save one minor issue that was collateral to the merits.
07a0212p.06	2007/06/07	USA v. Hunt     Western District of Tennessee at Memphis KAREN NELSON MOORE, Circuit Judge. Appellant-Defendant James Henry Hunt (“Hunt”), also known as Jamon Cameron Jones, pleaded guilty in 1998 to one count of fraudulent use of a social security number and one count of establishment of a controlled substances distribution operation. While released on bail before sentencing, Hunt fled. After being recaptured in 2006, Hunt was sentenced to 188 months in prison, three years of supervised release, and a $200 special assessment. Hunt now appeals his sentence, arguing that he merely allowed cocaine to be stored in his apartment and did not participate in any underlying drug offense, entitling him to a lower advisory Guidelines range pursuant to U.S. Sentencing Guideline § 2D1.8(a)(2). Because the district court did not clearly err in determining that Hunt was responsible for delivering the supply of cocaine found in his apartment and was thus not entitled to the benefit of Guideline § 2D1.8(a)(2), we AFFIRM the judgment of the district court.
07a0213p.06	2007/06/08	Wisecarver v. Moore     Western District of Kentucky at Bowling Green SILER, Circuit Judge. Don Wisecarver, Carol McCamy, and Karen Solomon (collectively, “Plaintiffs”) appeal the district court’s order dismissing their complaint for lack of subject matter jurisdiction based on the probate exception to federal diversity jurisdiction. On appeal, Plaintiffs argue that the Supreme Court’s recent narrowing of the probate exception in Marshall v. Marshall, 126 S.Ct. 1735 (2006), renders the exception inapplicable to this case. We AFFIRM in part and REVERSE in part.
07a0214p.06	2007/06/08	In re: Thom. Barrett v.     Northern District of Ohio at Youngstown GRIFFIN, Circuit Judge. Plaintiff-debtor Thomas Barrett filed a voluntary Chapter 7 bankruptcy petition on December 28, 2001, seeking the discharge of $302,342 in unsecured nonpriority debt. Among those claims are two student loans totaling $94,751. Defendant Educational Credit Management Corporation (“ECMC”) appeals the judgment of the Sixth Circuit Bankruptcy Appellate Panel (“BAP”) affirming the bankruptcy court’s order discharging Barrett’s student loan debts on the basis of “undue hardship” pursuant to 11 U.S.C. § 523(a). ECMC argues that Barrett was required to provide corroborating evidence in the form of expert medical proof to establish that the circumstances underlying his inability to repay the loans will likely continue for a substantial portion of the repayment period. ECMC contends further that Barrett failed to establish that he has made a good faith effort to repay his loans in light of his decision not to participate in the Income Contingent Repayment Plan. For the reasons set forth below, we affirm.

 

May 28-June 1, 2007:: 6th Cir. Published Decisions (2 Ky Decisions)

 

Opinion	Pub Date	Short Title/District
07a0196p.06	2007/05/29	Preferred Capital v. Sarasota Kennel     Northern District of Ohio at Cleveland FORUM SELECTION CLAUSE MERRITT, Circuit Judge. Preferred Capital brought this diversity action to enforce a rental agreement between Norvergence, Preferred Capital’s assignor, and Sarasota Kennel Club. The district court dismissed the claim because of a lack of personal jurisdiction over the defendants, and Preferred Capital appeals, arguing that the district court erred in refusing to enforce the forum selection clause in the Norvergence contract. Since that decision, a clear distinction has emerged between the federal and state (Ohio) law concerning the enforcement of such clauses. We are thus presented with the question of whether federal or state law controls the interpretation of a forum selection clause when the clause is raised as the sole basis for personal jurisdiction over the defendant. For the reasons discussed below, we hold that state law applies to this question and therefore affirm the District Court’s decision to dismiss the case for lack of personal jurisdiction, albeit on different grounds.
07a0197p.06	2007/05/29	Sinkfield v. Brigano     Southern District of Ohio at Dayton HABEAS CORPUS SILER, Circuit Judge. Andre Sinkfield appeals the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He seeks relief from his state court convictions for aggravated robbery, attempted aggravated murder, aggravated murder, and having a weapon while under disability. We AFFIRM the denial of Sinkfield’s habeas petition because the decision of the Ohio courts to exclude the potentially exculpatory testimony of two witnesses was neither contrary to, nor an unreasonable application of, federal law.
07a0198p.06	2007/05/29	MacDermid v. Discover Fin Serv     Middle District of Tennessee at Columbia BOYCE F. MARTIN, JR., Circuit Judge. Donald MacDermid appeals from the magistrate judge’s dismissal of his claims on the pleadings and at summary judgment. See MacDermid v. Discover Fin. Servs., No. 1:03-0111, 2006 WL 1454743 (M.D. Tenn. May 12, 2006). Mr. MacDermid alleges that his wife, who suffered from a severe form of bipolar disorder, committed suicide as a Consequence of Discover Financial’s harassing of the couple over $15,000 worth of purchases that she had made, but not paid for, on a Discover credit card. For the reasons discussed below, we AFFIRM in part and REVERSE in part.
07a0199p.06	2007/05/31	USA v. Eversole     Eastern District of Kentucky at London DAVID M. LAWSON, District Judge. Darrell Eversole, a 44-year-old resident of London, Kentucky, was sentenced to 27-¼ years (327 months) in prison for engaging in the life-endangering enterprise of making methamphetamine. That sentence is at the top end of the calculated Sentencing Guidelines range of 262 to 327 months as determined by the district court. Eversole appeals his sentence raising several technical challenges to the manner of calculating his offense level under the United States Sentencing Guidelines. We reject the hallenges to the offense level calculation. We also conclude that the district court did not rely on impermissible factors in formulating the sentence, which was both procedurally and substantively reasonable. Therefore, we will affirm the district court’s sentencing decision.
07a0200p.06	2007/05/31	In re: Larry Nailor v.     Western District of Tennessee at Memphis KAREN NELSON MOORE, Circuit Judge. Movant Larry Nailor (“Nailor”), a federal prisoner, filed a motion for relief from judgment in the federal district court pursuant to Federal Rule of Civil Procedure 60(b). The district court construed the motion as a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. Nailor required authorization from this court before filing a second or successive § 2255 motion, and, accordingly, the district court transferred the motion to us. We conclude that the district court did not err by construing Nailor’s Rule 60(b) motion as an attempt to file a second or successive § 2255 motion, and we DENY Nailor authorization to file a second or successive § 2255 motion because Nailor has not met the applicable statutory requirements.
07a0201p.06	2007/05/31	Directv Inc v. Revenue Dept     Eastern District of Kentucky at Frankfort BOGGS, Chief Judge. Directv, Inc. and Echostar Satellite L.L.C., collectively “the satellite companies,” appeal from the district court’s dismissal of their claims against Mark Treesh, the Commissioner of the Department of Revenue for the state of Kentucky. The satellite companies seek a permanent injunction against certain provisions recently added to Kentucky’s revenue statutes that afford cable television operators credits and other relief from state taxes assessed against both cable companies and the satellite companies. The satellite companies contend that these credits unconstitutionally discriminate against interstate commerce in violation of the Commerce Clause of Article I of the Constitution. Because we find no constitutional violation, we affirm the judgment of the district court.
07a0202p.06	2007/06/01	Glance v. Carroll     Eastern District of Michigan at Detroit SUTTON, Circuit Judge. Is a security interest in a debtor’s property a “noncontingent, liquidated, secured debt[]” under § 109(e) of the Bankruptcy Code, which at the time of this filing contained a $922,975 debt limit for filing a Chapter 13 petition? It is, we conclude, and accordingly we affirm the dismissal of Patrick Glance’s bankruptcy petition.
07a0203p.06	2007/06/01	Cooey v. Strickland     Southern District of Ohio at Columbus Petition for rehearing en banc denied.