Take the Fifth: Nov. 24, 2020 opinions

Designated for publication

  • Smith v. Wal-Mart Stores, Inc., 19-20818, appeal from S.D. Tex.
    • Smith, J. (Higginbotham, Smith, Dennis), defamation
    • Affirming summary judgment in favor of Wal-Mart on plaintiff’s defamation claim for being misidentified as a shoplifter by a Wal-Mart employee.
    • Court held that, under standard necessary to overcome the qualified privilege under Texas law that applied to the reporting of a crime, plaintiff failed to show a genuine dispute as to lack of actual malice by the store employee.
  • Jackson v. Vannoy, 19-30772, appeal from W.D. La.
    • Higginson, J., single-judge order denying Certificate of Appealability; habeas corpus, mootness
    • Judge Higginson denied a COA for petitioner who had been originally sentenced to life without possibility of parole for second-degree murder as a juvenile. The U.S. Supreme Court, after his conviction, ruled in another case that life-without-parole sentences for juveniles were unconstitutional; and in a subsequent case ruled that that ruling should be applied retroactively. The petitioner was then resentenced to life with the possibility of parole, even though the Louisiana statute applicable at the time of resentencing only provided for a sentence of life without parole for second-degree murder, a constitutionally-infirm sentence for juveniles. Subsequently, however, the Louisiana Legislature passed a new statute that cured that constitutional infirmity, and Judge Higginson held that this mooted the petitioner’s claim that his resentencing was unconstitutional.
    • Judge Higginson then rejected petitioner’s Ex Post Facto Clause claim, holding that the change in the law made the sentencing of petitioner less burdensome rather than more burdensome.


  • U.S. v. Hernandez, 18-30712, appeal from W.D. La.
    • per curiam (Jolly, Elrod, Graves), habeas corpus, Armed Career Criminal Act
    • Affirming dismissal for lack of jurisdiction over petitioner’s successive habeas petition regarding application of the ACCA.
  • Payne v. Supreme Court of Mississippi, 19-60362, appeal from S.D. Miss.
    • per curiam (Willett, Ho, Duncan), prisoner suit, frivolous
    • Denying IFP status, dismissing appeal as frivolous, denying certification of law to Supreme Court.
  • U.S. v. Longoria, 20-10339, appeal from N.D. Tex.
    • per curiam (Davis, Stewart, Dennis), criminal, guilty plea
    • Affirming conviction and sentence on finding that appeal-waiver in guilty plea was entered into freely and voluntarily.
  • Cheek v. Warden of Federal Medical Center, 20-10712, appeal from N.D. Tex.
    • per curiam (Jolly, Southwick, Wilson), habeas corpus
    • Affirming dismissal of petitioner’s habeas claim for release to home confinement on basis of lack of jurisdiction to review BOP decision to not release prisoner.