Take the Fifth: Oct. 5, 2020 opinions

  • Empower Texans, Inc. v. Geren, 19-50557, appeal from W.D. Tex., designated for publication
    • Southwick, J. (Elrod, Southwick, Haynes), mootness
    • Vacating District Court’s dismissal of suit on grounds of legislative immunity, holding the suit to be moot, and remanding with instructions to dismiss as moot.
    • Plaintiffs had filed suit against the Chairman of the Committee on House Administration of the Texas House of Representatives for his denial of their applications for media passes to cover the floor of the House (plaintiffs’ publication had regularly given the Chairman an “F” rating on their fiscal responsibility scorecard). The District Court had dismissed their suit on the basis of legislative immunity. However, the Court of Appeals noted that Plaintiffs had failed to take advantage of available procedures to move their relief forward more quickly, including by waiting to seek a preliminary injunction for several months after filing suit, then not seeking any sort of injunctive remedy pending appeal. Accordingly, the Fifth Circuit held that, when the Texas Legislature’s regular session had ended, and so much time had passed that a special session in the same term became unlikely, there was no basis to provide extraordinary relief from the operation of the mootness doctrine.
    • The Court held, “In summary, exceptional circumstances justifying a court’s moving beyond actual mootness will be less likely found when the party seeking review failed to utilize the procedures that had been available. A party seeking to continue litigation after time has run out should not be allowed to do so when it failed to use the time it had.”
  • U.S. v. Temetan, 18-20184, appeal from S.D. Tex., unpublished
    • per curiam (Higginbotham, Jones, Higginson), criminal, sentencing
    • Affirming District Court’s imposition of supervised release, but vacating the judgment in part and remanding for the District Court to issue a new judgment conforming the conditions of the supervised release to its oral pronouncements. Panel confirmed that a term of supervised release may be imposed on a deportable alien if it will specifically serve to provide added deterrence or protection. The panel, however, noted that a discrepancy between the District Court’s oral endorsement of the pre-sentencing report’s requirement for a 72-hour period to report to serve sentence and the District Court’s written judgment requiring immediate report time should be remedied by a remand and re-issuance of a new written judgment.
  • U.S. v. Crow, 19-11367, appeal from N.D. Tex., unpublished
    • per curiam (King, Smith, Wilson), criminal, sentencing guidelines
    • Affirming District Court’s reliance on upward enhancements to arrive at an above-Guidelines sentence, finding that “record does not show that the district court failed to account for a factor that should have received significant weight, gave significant weight to an irrelevant or improper factor, or committed a clear error of judgment in balancing the § 3553(a) factors.”
  • U.S. v. Lawrence, 18-60733, appeal from S.D. Miss., unpublished
    • per curiam (Higginbotham, Jones, Costa), criminal, sufficiency of evidence, prosecutorial misconduct, sentencing
    • Affirming conviction and sentence.
    • Court held that defendant’s conviction, based on testimony of two co-conspirators, was supported by sufficient evidence because it is in the province of the jury to ascertain the credibility of the witnesses; “The fact that Haynes and Applewhite received advantages for their testimony does not alone show that their testimony was incredible or impossible.”
    • Court held that the conviction was not impugned by the prosecutor’s statement in closing argument that the defendant had a motive to lie, which was not supported by any evidence, because defendant’s counsel objected and the court ordered the jury to disregard the prosecutor’s statement and instructed the jury that argument was not evidence. “Jurors are presumed to follow instructions.”
    • And the Court held that the District Court’s determination by a preponderance of the evidence of the quantity of marijuana involved for Sentencing Guidelines purposes was not error.
  • U.S. v. Morin, 19-51143, appeal from W.D. Tex., unpublished
    • per curiam (Wiener, Southwick, Duncan), criminal, sentencing
    • Affirming above-Guidelines (but within statutory maximums) sentences for violation of terms of supervised release, based on District Court’s articulations of reasons for sentence.
  • Whetstone v. Brown, 19-60182, appeal from N.D. Miss., unpublished
    • per curiam (Higginbotham, Jones, Costa), prisoner suit
    • Affirming dismissal of prisoner’s suit for failure to provide adequate medical care, holding that prisoner had failed to brief the bases for dismissal of most of his claims, abandoning them, and that prisoner’s conclusory briefing of the issue of exhaustion of administrative remedies failed to show he should be excused from the exhaustion requirement.
  • Poindexter v. Nash, 19-60530, appeal from S.D. Miss., unpublished
    • per curiam (King, Smith, Wilson), habeas corpus
    • Affirming dismissal of petitioner’s federal habeas petition under 28 U.S.C. § 2241, holding that petitioner did not satisfy the standard for meeting the requirements of the savings clause of § 2255. Petitioner had sought relief from his conviction for killing a person in the course of evading arrest for a bank robbery, on the argument that the indictment did not charge and the jury did not find that he had the intent to kill. The Fifth Circuit held that the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), did not not address an intent requirement in the crime for which petitioner was convicted, but in materially different crimes.
  • Santos v. Barr, 19-60634, petition for review of BIA order, unpublished
    • per curiam (Wiener, Southwick, Duncan), immigration
    • Dismissing petition for failure to exhaust administrative remedies because petitioner had not sought reconsideration of BIA’s decision even though she had contested the BIA’s “act of decisionmaking.”
  • Perry v. Currie, 20-10035, appeal from N.D. Tex., unpublished
    • per curiam (Haynes, Willett, Ho), prisoner suit
    • Affirming dismissal of prisoner’s claims for violation of his First Amendment rights and failure to protect him from an unprovoked attack by his cellmate. Court found First Amendment claims to be conclusory, and failure-to-protect claims to have failed to allege deliberate indifference.
  • Russell v. Texas, 20-10252, appeal from N.D. Tex., unpublished
    • per curiam (Clement, Higginson, Engelhardt), sovereign immunity
    • Affirming dismissal of plaintiff’s pro se lawsuit against the State of Texas for various allegedly illegal practices by Child Protective Services on the basis of sovereign immunity under the Eleventh Amendment. Finding that plaintiff’s claim did not fit within a “narrow exception” allowing for suits by private citizens against individuals in federal court on claims for prospective relief against hat individual in their official capacity.