November 8, 2021, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Barlow, 18-30994, appeal from M.D. La.
    • Southwick, J. (Clement, Southwick, Willett), habeas corpus, ineffective assistance of counsel, Armed Career Criminal Act
    • Affirming district court’s denial of petitioner’s § 2255 petition for post-conviction relief based on ineffective assistance of counsel and the application of the Armed Career Criminal Act.
    • Petitioner pled guilty to possession of a firearm by a convicted felon, and was sentenced to 235 months’ imprisonment upon a finding that the ACCA applied because of three state convictions for serious drug offenses. The conviction and sentence were affirmed upon an Anders finding of no nonfrivolous issues for appeal.
    • The Court held that the petitioner had abandoned his arguments as to ineffective assistance of counsel that he had raised to the district court and as to which the district court had issued a COA, when he failed to brief those on appeal. Instead, the petitioner raised a new IAC argument, that his trial counsel had failed to advise him that he would be subject to a 15-year mandatory minimum sentence under the ACCA, on appeal; the Court held that it could not consider an argument raised for the first time on appeal and not within the scope of the COA.
    • Setting aside the government’s argument that the petitioner’s challenge to the applicability of the ACCA was barred by the collateral review waiver in his guilty plea, the Court turned to the merits of that issue and held that the ACCA was properly applied. “The record of the state convictions is clear, and so is the law.” The Court noted that, applying the categorical approach, ACCA “serious drug offenses” “simply must ‘involve’ the conduct described in Section 924(e)(2)(A)(ii), namely, the ‘manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance’ and which is punishable by at least a ten-year sentence.” (Citing Shular v. United States, 140 S. Ct. 779, 785 (2020)). Applying this test, the Court held that the petitioner’s prior state drug convictions qualified as ACCA “serious drug offenses.”
  • Arulnanthy v. Garland, 19-60760, petition for review of BIA order
    • Oldham, J. (Jolly, Haynes, Oldham), immigration
    • Granting in part Sri Lankan citizen’s petition for review of BIA order dismissing appeal of denial of application for asylum and protection under the Convention Against Torture; remanding to BIA for reconsideration of the CAT claim; denying petition as to asylum claim.
    • The Court held first that the petition is not moot, even though the petitioner had been removed to Sri Lanka in January 2020 upon the Court’s denial of his motion for stay of removal pending resolution of his petition., because the upholding of the BIA’s removal order would result in an automatic period of inadmissibility following removal.
    • The Court then held that the IJ’s adverse credibility determination was supported by substantial evidence–based on inconsistencies between the petitioner’s credible-fear interview and his testimony at the immigration hearing, resulting in the Court holding that the petitioner’s asylum claim was meritless. The Court held that, because the petitioner must prove a subjective fear for purposes of his asylum claim, the IJ’s “broad adverse credibility determination forecloses a showing of subjective fear. If none of Arulnanthy’s testimony is taken as credible, then he could not establish a subjective fear of persecution.”
    • As to the petitioner’s CAT claim, the Court held that “the BIA was wrong to treat the adverse credibility determination as dispositive of his CAT claim.” Because Circuit precedent requires “separate analytical attention” to the CAT claim, the Court held, “[T]he BIA violated the CAT regulations by ignoring Arulnanthy’s hundreds of pages of evidence about country conditions in Sri Lanka. The applicable regulation, 8 C.F.R. § 1208.16(c)(3), in fact requires the BIA to consider ‘[e]vidence of gross, flagrant or mass violations of human rights within the country of removal’ and any ‘[o]ther relevant information regarding conditions in the country of removal’ in its likelihood-of-torture assessment. That provision has no exception for cases of adverse credibility determinations. The BIA’s decision did not even pretend to consider Arulnanthy’s country-conditions evidence, much of which went to human-rights violations. That lack of consideration was error.”

Unpublished

  • Ables v. Ducote, 20-30144, application for COA from E.D. La.
    • per curiam (Elrod, Oldham, Wilson), habeas corpus
    • Denying COA for review of denial of § 2254 application.
  • U.S. v. Lopez-Chavez, 20-50874, appeal from W.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Sawyer v. Die, 21-10241, appeal from N.D. Tex.
    • per curiam (Smith, Higginson, Willett), prisoner suit
    • Dismissing for lack of jurisdiction appeal from denial of § 1983 claims, on basis that district court judgment was not a final judgment.
  • Cordova v. Louisiana State University Agricultural, 21-30239, appeal from W.D. La.
    • per curiam (Clement, Ho, Oldham), breach of contract
    • Dismissing appeal of judgment dismissing claims as untimely; affirming judgment assessing attorneys’ fees and costs against plaintiff.
  • U.S. v. Cuevas-Rauldalez, 21-50298 c/w 21-50300, appeal from W.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal, sentencing
    • Granting summary affirmance of 24-month sentence on conviction for illegal reentry.
  • U.S. v. Gutierrez, 21-50567, appeal from W.D. Tex.
    • per curiam (King, Costa, Ho), criminal, sentencing
    • Granting summary affirmance of 77-month sentence for illegal reentry.