6th Cir. Published Decisions for Sept. 3-7, 2007 (1 Ky)

 

Opinion	Pub Date	Short Title/District
07a0357p.06	2007/09/04	USA v. Brown     MIE - Eastern District of MI at Detroit KAREN K. CALDWELL, District Judge. Defendant-Appellant Freddie Brown, III appeals the district court’s judgment sentencing him to 24 months of imprisonment for violating conditions of his supervised release. Brown argues that the district court did not adequately consider the relevant Sentencing Guidelines policy statements or the sentencing factors listed in 18 U.S.C. § 3553(a). Specifically, Brown argues the district court only considered Brown’s need for drug and alcohol treatment and failed to consider all other relevant factors. For the following reasons, we affirm Brown’s sentence.
07a0358p.06	2007/09/04	Ferensic v. Birkett     MIE - Eastern District of MI at Detroit RONALD LEE GILMAN, Circuit Judge. A Michigan state jury convicted Robert Ferensic in 1999 of armed robbery, home invasion, and possession of a firearm during the commission of a felony. The entirety of the evidence against Ferensic was based upon eyewitness identifications made by the victimized cou ple, Alexander and Angie Kostoff. Ferensic appealed, arguing among other things that (1) the trial court had violated his right to present a defense by preventing two of his witnesses—Dr. Harvey Shulman, an expert on eyewitness identification, and Danny St. John, who had observed the robbers prior to their entering the Kostoffs’ home—from testifying, and (2) his counsel had been constitutionally ineffective in failing to ensure that these two witnesses were allowed to testify. The Michigan Court of Appeals upheld Ferensic’s convictions, essentially reasoning that the nonappearance of both Dr. Shulman and St. John, whether attributable to the actions of the trial judge or of defense counsel, did not prejudice Ferensic. Ferensic subsequently petitioned the federal district court for a writ of habeas corpus, again raising the two grounds mentioned above. Having determined that the Michigan Court of Appeals’s ruling on each ground constituted an unreasonable application of clearly established federal law, the district court conditionally granted Ferensic’s petition. The Warden now appeals. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0359p.06	2007/09/05	Girts v. Yanai     OHN - Northern District of OH at Cleveland CLAY, Circuit Judge. Petitioner Robert Girts appeals the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner argues that his conviction for aggravated murder violated his Fifth and Sixth Amendment rights because the prosecution improperly commented on his right to remain silent during closing argument, and his trial counsel was ineffective in failing to object to the prosecutor’s statements. For the reasons that follow, we REVERSE the district court’s decision, conditionally GRANT the writ of habeas corpus petition, and REMAND this case to the district court.
07a0360p.06	2007/09/05	Daniels v. Lafler     MIE - Eastern District of MI at Detroit BOGGS, Chief Judge. In 1996, Todd Daniels helped a friend to burn down a house in Detroit, killing three children. In 1997, a Michigan state jury convicted him of three counts of second-degree murder and seven counts of assault within intent to commit murder. The trial court sentenced him to twenty to forty years of imprisonment. The district court denied his petition for a writ of habeas corpus; he now appeals. First, he contends that the trial court violated his Sixth Amendment right to counsel by replacing his original court-appointed attorney with a different court-appointed attorney, allegedly without cause. Second, he argues that an instruction given to his jury regarding the mental state required to commit murder as an aider and abettor so gravely misrepresented Michigan law that it violated his Fourteenth Amendment right to due process, and that his trial counsel was ineffective for failing to object to the allegedly erroneous instruction. We affirm. We reject Daniels’s first claim because the Sixth Amendment gives an indigent defendant a right to adequate representation but not to his choice of court-appointed counsel. Because Daniels does not allege that the change in counsel prejudiced his defense, he cannot demonstrate a violation of this adequate-representation right and therefore cannot establish a Sixth Amendment violation. We reject Daniels’s second claim because, even though one sentence of the instructions contained a confusing and arguably misleading statement of the law, the trial court correctly stated the law at several other times. Consequently, Daniels cannot show that “the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,” Cupp v. Naughten, 414 U.S. 141, 147 (1973), or that he was prejudiced by his trial counsel’s failure to object.
07a0361p.06	2007/09/05	Sickles v. Campbell Cnty     KYE - Eastern District of KY at Covington SUTTON, Circuit Judge. May a municipal jail, consistent with the Due Process Clause of the Fourteenth Amendment, withhold a portion of an inmate’s canteen-account funds in order to cover the costs of booking, room and board without providing the inmate with a hearing before it withholds the money? Yes, we hold, and accordingly we affirm the district court’s rejection of this claim and two others.
07a0362p.06	2007/09/06	Coalition to Defend v. Granholm     MIE - Eastern District of MI at Detroit R. GUY COLE, JR., Circuit Judge. Before us are two appeals challenging a district court’s order denying intervention under Federal Rule of Civil Procedure 24(a) and (b) to (1) the Michigan Civil Rights Initiative committee (the “MCRI”), (2) the American Civil Rights Foundation (the “ACRF”), and (3) Toward a Fair Michigan’s (“TAFM,” collectively, the “proposed intervenors”). Each wishes to intervene in an action brought against (1) Jennifer Granholm, the Governor of Michigan, and (2) the Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University (collectively, the “Universities”), seeking to invalidate and permanently enjoin from enforcement a recently enacted amendment to Michigan’s constitution that outlaws, among other things, sex- and race-based preferences in public education, public employment, and public contracting. Mich. Const., art. 1, § 26. The amendment was the result of the Michigan voters’ approval, in November 2006, of Proposal 06-2 (“Proposal 2”), a statewide ballot initiative. For the following reasons, we AFFIRM the district court’s denial of intervention to the proposed intervenors.
07a0363p.06	2007/09/06	Pointer v. Wilkinson     OHS - Southern District of OH at Cincinnati HAROLD A. ACKERMAN, District Judge. This case requires us to resolve a novel question regarding the application of 28 U.S.C. § 1915(g), the “three-strikes” provision added to the in forma pauperis (“IFP”) statute by the Prison Litigation Reform Act (“PLRA”). The three-strikes rule, in an effort to lessen the crush of frivolous prisoner filings in the federal courts, precludes prisoners – unless they face imminent danger of serious physical injury – from proceeding IFP if they have had three prior cases dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. Plaintiff Dennis Pointer appeals the District Court’s denial of his motion to proceed IFP based on the District Court’s counting of one of his prior suits as a “strike.” In this prior suit, six of Pointer’s eight claims were dismissed with prejudice for failure to state a claim, and two were dismissed without prejudice for failure to exhaust administrative remedies. We conclude that the District Court properly characterized this type of dismissal as a strike, and we also reject Pointer’s constitutional challenge to § 1915(g). Therefore, we AFFIRM the judgment of the District Court.
07a0364p.06	2007/09/06	USA v. Community Health Sys     TNM - Middle District of TN at Cookeville CLAY, Circuit Judge. In his second trip before this Court, Relator Sean Bledsoe appeals the district court’s grant of Defendants Community Health Systems, Inc.’s (“CHS”) and Sparta Hospital Corp.’s, d/b/a White County Community Hospital (“White County”) motions to dismiss his second amended complaint. Relator also appeals the district court’s denial of his motion to recognize a settlement agreement (the “Settlement Agreement”) between CHS and the government. Relator brought this action under the False Claims Act, 31 U.S.C. § 3729 et seq., alleging that Defendants engaged in various types of fraud that increased the reimbursements that they received from Medicare and Medicaid. In the separate Settlement Agreement, CHS paid $30,494,749.51 to the United States government in settlement of claims that arguably overlap with Relator’s complaint; Relator contends that he is entitled to a relator’s share of the proceeds. On appeal, Relator argues (1) that the district court erred in concluding that portions of his second amended complaint were not pled with particularity as required by Federal Rule of Civil Procedure 9(b); (2) that the district court erred in dismissing portions of his second amended complaint as barred by the statute of limitations; (3) that the district court erred in dismissing his entire second amended complaint with prejudice, and without explanation, after previously upholding portions of the complaint; and (4) that the district court erred in denying his motion to recognize the settlement. For the reasons that follow, we AFFIRM in part, REVERSE in part, and REMAND for proceedings consistent with this opinion.
07a0365p.06	2007/09/06	USA v. Brock, Gary Michael     TNE - Eastern District of TN at Chattanooga SUTTON, Circuit Judge. May the payor of a bribe to a state official conspire with that official to extort property from himself in violation of the Hobbs Act? We hold that he cannot, and we thus reverse the convictions of Michael and Jerry Brock. Darrin Webb’s unrelated challenges to his conviction and sentence, by contrast, do not have merit, and we thus affirm both of them.
07a0366p.06	2007/09/07	USA v. Fink     OHN - Northern District of OH at Cleveland JULIA SMITH GIBBONS, Circuit Judge. Following a period of FBI surveillance and his subsequent indictment, defendant William A. Fink pled guilty to distribution of child pornography. The district court found the appropriate sentencing range under the Sentencing Guidelines to be 188 to 235 months. The district court sentenced Fink to 70 months imprisonment and five years of supervised release. The government appeals, asserting that the sentence is substantively unreasonable. For the following reasons, we agree and vacate the sentence and remand for resentencing.
07a0367p.06	2007/09/07	USA v. McGinnis     TNW - Western District of TN at Memphis SUTTON, Circuit Judge. At issue in this case is the legality under the Fourth Amendment of the detention and search of a woman (and her luggage) by customs officials after she had entered the country. Because the officials obtained information soon after she passed through customs that gave them an objectively reasonable basis for suspecting that she had smuggled more than $10,000 in cash into the country without declaring it—the arrest of her traveling companion on similar charges, an incriminating statement and suspicious behavior—we uphold the search and reverse the district court’s contrary decision.

NONPUBLISHED KENTUCKY CASES

Opinion	Pub Date	Short Title/District
07a0651n.06	2007/09/04	Clair v. Northern KY Indep     KYE - Eastern District of KY at Covington