Designated for publication
- U.S. v. Sila, 17-11212, appeal from N.D. Tex.
- Elrod, J. (Higginbotham, Elrod, Haynes), criminal, sentencing, sufficiency of evidence
- Affirming two counts of indictment regarding theft of government funds and aggravated identity theft, vacating one count of indictment regarding theft of government funds for insufficiency of evidence, and remanding for resentencing.
- Defendant had been convicted with regard to selling IRS refund checks issued to Cynthia Short and Dietrich Eipper, and with providing a fake driver’s license to the buyer for use in cashing the check issued to Short.
- The Court first held that the district court did not err in failing to provide a unanimity of theory instruction to the jury requiring the jurors to be unanimous on the specific details regarding where defendant committed the theft of government funds as to Short, because the government had only charged defendant with committing the crime in one location. The Court also held that the government need not prove that defendant’s theft involved either “conversion” or “stealing,” and the jury need not be unanimous as to which of the two types of theft were committed, as long as it was unanimous that he either converted or stole the government funds.
- The Court then held that there was insufficient evidence to support defendant’s conviction for theft of government funds regarding the Eipper tax refund, as the evidence relied on the use of an IP address used by defendant–but registered to a company and also used by a number of other people–and to communications between a government informant and the defendant’s brother (also a user of the IP address). Even drawing all inferences in support of the conviction, the Court held that the evidence was insufficient to support the conviction.
- Accordingly, the Court also held that re-sentencing would be required.
- Reeder v. Vannoy, 17-30351, appeal from E.D. La.
- per curiam (King, Stewart, Southwick), habeas corpus, Brady violation
- Affirming district court’s denial of § 2254 petition on petitioner’s Brady claim that prosecution illegally withheld impeachment evidence on eyewitness’s prior federal conviction for lying on a firearms application.
- The Court first reiterated the standards for federal courts’ § 2254-based review of a state court’s denial of state post-conviction relief, that “'[a] state court’s determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court’s decision.’” Quoting Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016). The Court held that, “[a]ccordingly, ‘a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly.’” Quoting McAfee v. Thaler, 630 F.3d 383, 393 (5th Cir. 2011).
- The Court held that there was no clearly established law at the time of petitioner’s trial that a prior conviction for lying on a firearms application was material to an eyewitness’s testimony, and that the cases relied on by petitioner were distinguishable. In one, Wearry v. Cain, 136 S. Ct. 1002 (2016) (in any event, issued after petitioner’s conviction), the evidence withheld went to the eyewitness’s motive for lying in his testimony and directly contradicted his testimony. In the other, Smith v. Cain, 565 U.S. 73 (2012), the eyewitness’s undisclosed statements directly contradicted his testimony. Here, the Court held that the corroboration of the eyewitness’s testimony by other evidence also decreased the chance that the undisclosed prior conviction was material to the credibility of the testimony.
- Beras v. Johnson, 18-30684, appeal from W.D. La.
- per curiam (Wiener, Engelhardt, Oldham), Oldham, J., concurring; habeas corpus
- Affirming denial of § 2241 petition. In the latest of a string of petitions for post-conviction relief filed under both § 2255 and § 2241 across federal district courts in at least four different federal Circuits over a period of almost twenty years, the Western District of Louisiana denied petitioner’s § 2241 petition for relief on the basis that Cuellar v. United States, 553 U.S. 550 (2008), issued approximately seven years after his conviction on various money laundering counts, constituted “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h).
- Under the Fifth Circuit’s precedent in Reyes-Requena v. United States, 243 F.3d 893 (5th Cir. 2001), post-conviction claims based on new interpretations of federal statutes are allowed when (1) the petitioner’s claim is based on a retroactively applicable Supreme Court decision; (2) the petitioner’s claim was foreclosed by Circuit precedent at the time of trial, direct appeal, or first § 2255 proceeding; and (3) the retroactively decision establishes that the petitioner may have been convicted of a nonexistent offense.
- Pretermitting analysis of the Reyes-Requena factors, the Court held instead that the § 2241 petition was an abuse of the writ, both because the petition raised an argument that could have been raised in a prior petition and because the petition raised an identical claim a second time.
- Judge Oldham separately concurred, joining in the per curiam decision on abuse-of-writ, but emphasizing that, in the appropriate case, the en banc Court should take up and overturn the precedent in Reyes-Requena as “creat[ing] a contra-textual exception to the limitations Congress imposed on federal habeas corpus.” Regardless of the correctness of Judge Oldham’s conclusions, a question that may, as he proposes, be answered at a future en banc sitting, his concurring opinion does provide a thorough examination of the development of the habeas writ on the federal side of the divide.
- Smith v. Toyota Motor Corp., 19-60938, appeal from N.D. Miss.
- Higginson, J. (Clement, Higginson, Engelhardt), jurisdiction
- Affirming district court’s dismissal of plaintiff’s suit for lack of subject-matter jurisdiction. Plaintiff had asserted jurisdiction under 28 U.S.C. § 1332, but had alleged that she was a citizen of Mississippi, that one of the defendants was a citizen of Mississippi and Indiana, and that the other defendant was a citizen of Japan. In her appellate briefing, plaintiff omitted mention of where the first defendant was a citizen in her appeal brief and only noted that that defendant was “located in” Indiana in her reply brief. The Court held that jurisdictional allegations cannot be altered on appeal, and that, regardless, in her jurisdictional allegations as to the Japan-based corporation, plaintiff had failed to provide affirmative allegations of where the defendant was incorporated and where its principal place of business was. Failure to affirmative allege all of the elemental facts of each defendant’s citizenship was sufficient to support dismissal for lack of jurisdiction.
Unpublished
- Hager v. Underwood, 18-10913, appeal from N.D. Miss.
- per curiam (Owen, Dennis, Oldham), habeas corpus
- Dismissing appeal of petitioner’s § 2241 petition as frivolous, and denying motions for appointment of counsel and for IFP status.
- Stewart v. Pennie, 19-10806, appeal from N.D. Tex.
- per curiam (Davis, Stewart, Dennis), § 1983, prisoner suit
- Affirming dismissal without prejudice of federal prisoner’s § 1983 action under Fed. R. Civ. P. 41(b).
- Yancy v. Lumpkin, 19-20468, appeal from S.D. Tex.
- per curiam (Higginbotham, Southwick, Willett), jurisdiction
- Dismissing appeal of dismissal of petitioner’s § 2254 petition for failure to timely file a notice of appeal.
- U.S. v. Ramirez, 19-41044, appeal from S.D. Tex.
- per curiam (Jolly, Elrod, Graves), criminal, sentencing
- Denying government’s motion for summary affirmance, but affirming district court’s sentence of defendant on the merits.
- U.S. v. Baltazar-Benavides, 19-41052, appeal from S.D. Tex.
- per curiam (Dennis, Costa, Engelhardt), criminal, mootness
- Dismissing appeal as moot and denying defendant’s counsel’s Anders motion to withdraw as unnecessary.
- Michael v. Barr, 19-60384, petition for review of BIA order
- per curiam (Graves, Costa, Engelhardt), immigration
- Denying petition for review of BIA decision dismissing appeal from IJ’s decision denying motions to reopen and remand.
- U.S. v. Guizar-Hernandez, 20-10274, appeal from N.D. Tex.
- per curiam (Dennis, Costa, Engelhardt), criminal
- Granting Anders motion to withdraw as counsel, and dismissing appeal.
- U.S. v. Espinoza-Infante, 20-10601, appeal from N.D. Tex.
- per curiam (Davis, Stewart, Dennis), criminal
- Granting motion for summary affirmance of sentence, as appeal argument foreclosed by Almendarez-Torres.
- U.S. v. Davis, 20-300210, appeal from M.D. La.
- per curiam (King, Southwick, Ho), criminal
- Granting Anders motion to withdraw as counsel, and dismissing appeal.
- U.S. v. Herrera-Gonzalez, 20-40148, appeal from S.D. Tex.
- per curiam (Higginbotham, Jones, Costa), criminal
- Granting motion for summary affirmance and affirming sentence as foreclosed under Mistretta.
- U.S. v. Ostos, 20-50122, appeal from W.D. Tex.
- per curiam (Clement, Higginson, Engelhardt), criminal, search and seizure
- Affirming conviction on finding that district court’s denial of motion to suppress was no erroneous.
- Nelson v. Lumpkin, 20-50291, appeal from W.D. Tex.
- per curiam (Jones, Costa, Wilson), § 1983, prisoner suit
- Dismissing appeal as frivolous.
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