January 5, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • Jones v. Lumpkin, 19-10079, appeal from N.D. Tex.
    • Jones, J. (Jones, Higginson, Duncan), habeas corpus, timeliness
    • Affirming district court’s dismissal of federal habeas application that had been filed after AEDPA’s one-year limitations period and that was not entitled to statutory tolling, on finding that petitioner was not entitled to equitable tolling.
    • Petitioner’s first two state habeas petitions had been dismissed as procedurally improper for exceeding the state rules’ page limitation, prior to his filing a third state habeas petition that met the page-limits requirement. After that state habeas petition was denied, he filed the instant federal habeas petition, which was denied as untimely.
    • AEDPA requires that the petitioner file the application for federal habeas relief within one year of a state conviction becoming final, which time can be statutorily tolled by a properly filed application for state post-conviction relief within that period. Because the first two state petitions filed by petitioner were not procedurally proper, they were not “properly filed” and the petitioner did not statutorily toll AEDPA’s one-year limitations period.
    • The Court held that the petitioner was also not entitled to equitable tolling. The Court held that the extraordinary circumstances justifying equitable tolling must be beyond the petitioner’s control, and that “a petitioner’s failure to comply with state procedural law or general ignorance of the law do not qualify as extraordinary circumstances for purposes of equitable tolling.”
  • Terry Black’s Barbecue, L.L.C. v. State Automobile Mutual Insurance Co., 21-50078, appeal from W.D. Tex.
    • Graves, J. (Stewart, Haynes, Graves), insurance, COVID-19
    • Affirming judgment on the pleadings for insurer on plaintiff’s claim for recoupment of losses by the governmental shut-down of dine-in restaurant service during the COVID-19 pandemic, on holding that such business interruption was not caused by “direct physical loss of or damage to property.”
    • The plaintiff’s business interruption coverage (“BI/EE”) under its all risk policy covered “the actual loss of Business Income … sustain[ed] and Extra Expense … incur[red] due to the necessary suspension of [TBB’s] operations during the period of restoration,” which coverage “must be caused by direct physical loss of or damage to property at the premises.” The plaintiff also had a restaurant extension endorsement (“REE”) providing coverage for “the suspension of [TBB’s] operations at the described premises due to the order of a civil authority … resulting from the actual or alleged … exposure of the described premises to a contagious or infectious disease.” The insurer denied coverage for the plaintiff’s shutdown-related losses under both the BI/EE and REE coverage.
    • The Court held that the BI/EE coverage did not apply because the losses were not caused by “direct physical loss of or damage to property.” “TBB has failed to allege any tangible alteration or deprivation of its property. Nothing physical or tangible happened to TBB’s restaurants at all. In fact, TBB had ownership of, access to, and ability to use all physical parts of its restaurants at all times. And importantly, the prohibition on dine-in services did nothing to physically deprive TBB of any property at its restaurants.” The Court rejected plaintiff’s argument that coverage was triggered because it was denied the use of the “physical space” of its restaurants. “TBB’s reliance on the phrase ‘physical space’ is simply misplaced. The phrase appears nowhere in the policy and nonetheless provides no further definition of the phrase at issue here—physical loss of property. Even accepting TBB’s argument, it still has not alleged that it was deprived of a physical space. TBB has always had access to the dining rooms in its restaurants. It was free to use that ‘physical space’ in whatever manner it chose, except dine-in services.”
    • The Court held that REE coverage did not apply “[b]ecause the civil authority orders did not ‘result from’ TBB’s exposure to COVID-19. … The language in the orders indicates that they were enacted to avoid exposure to COVID-19, not because of exposure to COVID-19.”

Unpublished

  • Henry v. Ditech Financial, L.L.C., 19-20439, appeal from S.D. Tex.
    • per curiam (Owen, Smith, Elrod), foreclosure
    • Affirming dismissal of plaintiff’s claims to quiet title, cancel a deed for trust, and violations of the FDCPA and RESPA.
  • U.S. v. Ussery, 20-50585, appeal from W.D. Tex.
    • per curiam (Smith, Elrod, Oldham), criminal, sentencing
    • Affirming 188-month sentence on conviction of conspiring to possess with intent to distribute fifty grams or more of methamphetamine.
  • Barajas v. Garland, 20-60366, petition for review of BIA order
    • per curiam (Barksdale, Costa, Engelhardt), immigration
    • Dismissing Mexican citizen’s petition for review of BIA order dismissing his appeal of an Immigration Judge’s denial of asylum and cancellation of removal.
  • Perez-Ramirez v. Garland, 20-60466, petition for review of BIA order
    • per curiam (Davis, Jones, Elrod), immigration
    • Denying Guatemalan citizens’ petition for review of BIA order dismissing their appeal from the denial by the Immigration Judge (IJ) of their applications for asylum and withholding of removal.
  • Vasquez-Canas v. Garland, 20-60771, petition for review of BIA order
    • per curiam (Owen, Smith, Elrod), immigration
    • Denying in part and dismissing in part Salvadoran citizens’ petition for review of BIA order dismissing their appeal from the denial of their applications for asylum and withholding of removal by the Immigration Judge.
  • U.S. v. Doe, 21-10123, appeal from N.D. Tex.
    • per curiam (Owen, Haynes, Costa), criminal, pretrial detention
    • Affirming district court’s denial of motion to set aside waiver of a predetention hearing.
  • U.S. v. Smith, 21-30252, appeal from W.D. La.
    • per curiam (Wiener, Dennis, Haynes), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. McLean, 21-40015, c/w 21-40017, appeal from E.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal, compassionate release
    • Vacating district court’s denial of motions for compassionate release, and remanding for consideration of motions on the merits.
  • U.S. v. Garcia-Serna, 21-40439, c/w 21-40441, appeal from S.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Hernandez, 21-50061, appeal from W.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Najeras, 21-50418, appeal from W.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal, sentencing
    • Affirming 16-month sentence on conviction of conspiracy to transport illegal aliens.
  • Fratta v. Lumpkin, 21-70001, appeal from S.D. Tex.
    • per curiam (Owen, Smith, Costa), habeas corpus
    • Denying COA to appeal denial of Rule 60(b) motion as a prohibited successive federal habeas petition.