Designated for publication
- Thomas v. Lumpkin, 17-20661, appeal from S.D. Tex.
- Jones, J., order denying en banc rehearing, joined by Owen, Jones, Smith, Southwick, Haynes, Costa, Ho, Duncan, Engelhardt, Oldham, Wilson, JJ.; Graves, J., dissenting from denial of rehearing, joines by Elrod, J. (Stewart, Dennis, Elrod, Graves, Higginson, Willett, voting to rehear); habeas corpus, ineffective assistance of counsel
- The panel affirmed the denial of petitioner’s habeas petition on his ineffective assistance of counsel claim.
- Dissenting, Judge Graves cataloged the complete abandonment by petitioner’s trial counsel of his role: “[C]ounsel repeatedly assured the jury of his trial experience and made numerous explicit statements regarding Thomas’ guilt, such as: (1) ‘it seems really strong to me that this young man is guilty, this person I’m representing is guilty;’ (2) he was ‘convinced that the evidence [of Thomas’s guilt] [was] pretty powerful;’ (3) there was ‘a substantial amount of evidence’ demonstrating Thomas’ guilt; and (4) ‘If you reach a verdict that says he’s guilty, that’s the way it is. I appreciate it.’ The jury convicted Thomas, and the trial proceeded to the punishment phase, where defense counsel first acknowledged that he had ‘practically consented to a guilty verdict in this case, because I thought the evidence was overwhelming based on the many years of experience of trying cases’ and reiterated that the evidence against Thomas was ‘overwhelming.’ Counsel then argued that ‘[a]ll of the evidence—and I would be a fool if I suggested otherwise, and I’m not—is compelling that this young man deserves a pretty substantial sentence. I’m not talking about of [sic] sentence of 15 years. All of the evidence is compelling.’ Counsel then told the jury he wanted them to take into consideration that ‘[a] young man lost his life, destroyed his mother practically’ and all of Thomas’ prior convictions before stating, ‘I can assure you I’m a fairly wordy individual, but I know I can’t deter you from the things you ought to do in this case. And in this case, I’m convinced, based on all of the facts, he deserves a substantial sentence.’ Counsel offered nothing in mitigation and told the jury he could not quarrel with any sentence the jury selected.”
- Judge Graves opined, “At the point that counsel conceded guilt, he failed to mount a defense regardless of anything he had done prior to that concession. At the point that counsel asked for a substantial sentence, he verified that this was not an attempt at strategy. Thus, the panel decision is contrary to both Haynes and Cronic.”
Unpublished
- Wooten v. Parker, 19-10573, appeal from N.D. Tex.
- per curiam (King, Smith, Wilson); prisoner suit
- Affirming dismissal without prejudice of prisoner’s § 1983 suit.
- Lanier v. Lumpkin, 19-50975, appeal from W.D. Tex.
- per curiam (Willett, Ho, Duncan), habeas corpus, frivolous
- Dismissing as frivolous appeal of denial of Rule 60(b) motion that district court deemed a prohibited successive habeas petition, denied IFP status, and warned of future sanctions.
- Frances v. Barr, 19-60207, petition for review of BIA order
- per curiam (Owen, King, Engelhardt), immigration
- Granting petition for review; vacating BIA’s dismissal of appeal from IJ order denying Cuban citizen’s application for asylum, withholding of removal, and protection under the Convention Against Terror; and remanding with instructions to consider application.
- U.S. v. Onick, 20-10165, appeal from N.D. Tex.
- per curiam (Davis, Stewart, Dennis), criminal, supervised release
- Affirming revocation of supervised release for failure of marijuana urine tests and failure to participate in drug treatment program.
- U.S. v. Travis, 20-10408, appeal from N.D. Tex.
- per curiam (Higginbotham, Jones, Costa), criminal, sentencing, Armed Career Criminal Act
- Granting summary affirmance of defendant’s sentence on district court’s application of the ACCA.
- Richter v. Carnival Corporation, 20-10480, appeal from N.D. Tex.
- per curiam (Davis, Stewart, Dennis), breach of contract, trade secrets
- Affirming 12(b)(6) dismissal of plaintiff’s trade secrets-based claims regarding concept for cruise-centered reality television program.
- In re: Webster, 20-10530, on motion for order to N.D. Tex. to consider successive § 2255 petition
- per curiam (Willett, Ho Engelhardt), habeas corpus
- Denying motion for order to consider successive § 2255 petition.
- Pierce Partners, GP v. Morton, 20-20184, appeal from S.D. Tex.
- per curiam (Haynes, Willett, Ho), choice of law
- Affirming summary judgment in favor of plaintiff on promissory note enforcement action, based on choice-of-law analysis that California usury laws would not apply.
- Ali v. Sneed, 20-20229, appeal from S.D. Tex.
- per curiam (Haynes, Willett, Ho), § 1983, jurisdiction
- Remanding to district court to determine if state action was involved for purposes of founding subject-matter jurisdiction for § 1983 claim.
- Million v. ExxonMobil Corp., 20-30002, appeal from M.D. La.
- per curiam (Davis, Stewart, Dennis), toxic tort, workers’ compensation
- Affirming district court’s denial of plaintiff’s motion to amend scheduling order and grant of defendant’s summary judgment dismissing workplace exposure suit.
- U.S. v. Ortega-Marufo, 20-50164, appeal from W.D. Tex.
- per curiam (King, Smith, Wilson), criminal, sentencing
- Affirming sentence based on denial of minor-role adjustment.
- U.S. v. Rodriguez, 20-50359, appeal from W.D. Tex.
- per curiam (King, Smith, Wilson), criminal, sentencing, supervised release
- Affirming conditions of supervised release.
- U.S. v. Lucas, 20-60152, appeal from S.D. Miss.
- per curiam (Davis, Stewart, Dennis), criminal, supervised release
- Affirming sentence on revocation of supervised release.
- U.S. v. Robinson, 20-60447, appeal from N.D. Miss.
- per curiam (Haynes, Willett, Ho), criminal, sentencing
- Affirming sentence on denial of COVID-19-related arguments.
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