February 14, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • McFarland v. Lumpkin, 19-70011, appeal from S.D. Tex.
    • per curiam (Higginbotham, Southwick, Willett), habeas corpus, ineffective assistance of counsel, Brady claim, Sixth Amendment
    • Affirming denial of habeas relief, after having granted COA on denial of claims of ineffective assistance of counsel, Brady violation, and Sixth Amendment violation.
    • Reminiscent of the original panel opinion in Burdine v. Johnson, the Court held that the petitioner could not show presumption of prejudice under Cronic where his lead defense counsel repeatedly slept at trial. The Court distinguished the Burdine en banc decision in the sleeping-lawyer context because the trial court had appointed a second-chair counsel (albeit one with no capital experience) in an attempt to remedy the problem of the sleeping attorney. “We are aware of no case where a sleeping co-counsel alone triggers Cronic’s presumption of prejudice. McFarland cannot show that his counsel failed to function in any meaningful sense because, at every stage of trial, he also enjoyed effective assistance by Melamed.”
    • The Court also held that there was no unreasonable application of clearly established Supreme Court precedent in the denial of the petitioner’s Strickland ineffective assistance claim. The Court held that he could not meet the high burden under Strickland review to show that his counsel was not making strategic decisions or encountering hurdles beyond his control in pretrial investigation, cross-examination, and performance at sentencing phase.
    • The Court held there was no Sixth Amendment violation when the petitioner was subjected to a police line-up without counsel present, because the right to counsel had not attached at that point.
    • The Court held there was no Brady violation where the state court held that the state’s file containing the allegedly exculpatory evidence was made available to the petitioner’s attorneys.
  • D.R.T.G. Builders, L.L.C. v. Occupational Safety and Health Review Commission, 20-61190, petition for review of order of Occupational Safety and Health Review Commission
    • Higginbotham, J. (Higginbotham, Smith, Ho), Ho, J., concurring in judgment; OSHA, administrative law
    • Denying petition for review of Occupational Safety and Health Review Commission order that default citation was properly entered against petitioner for failure to respond to properly served OSHA notice of workplace violation.
    • OSHA delivered the citation to DRTG by certified USPS mail at the address of DRTG’s sole owner, the address provided by the two DRTG employees interviewed by OSHA. When the certified mailing was not accepted or claimed by DRTG, OSHA sent the citation again by UPS Next Day Air, tracking for which showed it was successfully delivered to DRTG’s doorstep. DRTG did not file a Notice of Contest within 15 days of that delivery, and the citation became a final order of the Commission the next day.
    • The Court held that it was not arbitrary and capricious to determine that service of the citation had been properly effected by UPS Air rather than by USPS Certified Mail. “Consistent with precedent and with the OSHA Field Operations Manual, after learning that DRTG had not responded to the USPS delivery notice, OSHA took the additional step of sending the citation by UPS Next Day Air. Because OSHA first sent the notice by USPS certified mail and then took steps that were reasonably calculated to provide DRTG with notice, OSHA properly served DRTG with notice of the citation.”
    • The Court then held that the Commission did not abuse its discretion in determining that DRTG was not entitled to relief from the late-filed notice of contest due to excusable neglect. In particular, the Court focused on DRTG’s “failure to institute a mail process that enabled it to receive USPS certified mail or a UPS delivery in a timely manner.”
    • Judge Ho concurred in the judgment. He would have held that delivery of the citation occurred at an earlier point than delivery of the UPS Next Day Air, that it actually occurred when the USPS left notice of the attempted delivery of the certified mailing.
  • Abraugh v. Altimus, 21-30205, appeal from W.D. La.
    • Ho, J. (Wiener, Graves, Ho; JJ. Wiener and Graves concurring in all but Part II.C of opinion), standing, jurisdiction
    • Reversing district court’s dismissal of plaintiff’s claim for wrongful death of her son, who was a pretrial detainee at the Bossier Maximum Security Facility, for lack of standing, holding that, while the plaintiff lacked prudential standing because Louisiana law does not authorize her to bring the cause of action, she still had Article III standing.
    • The Court noted that the mother did not have a survivor action under Louisiana law because there are a surviving spouse and surviving children who enjoy superior status. But, “[t]o be sure, the district court did not err in describing her inability to sue under Louisiana law as a defect of ‘standing.’ But it is a defect of prudential standing, not Article III standing. And the difference matters here, because Article III standing is the only kind of standing required before a federal district court can exercise subject matter jurisdiction.”
    • However, the Court held that the plaintiff met the requirements for Article III standing: “Karen does indeed have Article III standing to bring this suit. She seeks money damages to address the death of her son, which was allegedly caused by Defendants’ conduct. So she has sufficiently alleged all three elements required to establish Article III standing at this stage. See Lujan, 504 U.S. at 560–61 (Article III standing exists at the pleading stage when a plaintiff plausibly alleges (1) an ‘injury in fact,’ (2) that is ‘fairly traceable to the challenged action of the defendant,’ and (3) that is ‘likely . . . redress[able] by a favorable decision’) (cleaned up). Our sister circuits have held that a child has Article III standing to file suit over the wrongful death of a parent. See, e.g., Jones v. Prince George’s Cty., 348 F.3d 1014, 1018 (D.C. Cir. 2003). We presume that similar logic would govern a suit filed by a parent over the wrongful death of a child. And in any event, Karen has also sufficiently alleged Article III standing in her capacity as the administrator of her son’s estate. The estate has suffered an injury that the defendants are allegedly responsible for, and it seeks redress in the form of money damages.”
    • The Court then held that the plaintiff did not forfeit this argument of Article III standing when she failed to raise it. Because the plaintiff cited a 5th Circuit decision on Article III standing, even though she didn’t cite it for the Article III argument, the Court held that she did not forfeit the argument.

Unpublished

  • U.S. v. Navarette-Hernandez, 20-10704, appeal from N.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Velasquez-Zelaya v. Garland, 20-60531, petition for review of BIA order
    • per curiam (King, Costa, Ho), immigration
    • Denying Honduran citizen’s petition for review of BIA order denying cancellation of removal and a continuance to pursue a U-visa.
  • Funa v. Garland, 20-61071, petition for review of BIA order
    • per curiam (King, Costa, Ho), immigration
    • Denying in part and dismissing in part Cameroonian citizen’s petition for review of BIA order dismissing his appeal from the denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture.
  • U.S. v. Alvarez, 21-10362, appeal from N.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Callais Capital Management, L.L.C. v. Wilhite, 21-30222, appeal from E.D. La.
    • per curiam (Jolly, Willett, Oldham), Willett, J., dissenting in part; securities law
    • Affirming securities law claims against former directors of digital marketplace platform.
    • In a footnote, Judge Willett’s disagreement was noted as to the personal jurisdiction dismissal of claims against one one defendant; he would have reversed that dismissal and remanded for the district court to consider in the first instance whether the plaintiff had stated a claim against that defendant.
  • Louisiana v. Becerra, 21-30734, appeal from W.D. La.
    • per curiam (Southwick, Graves, Costa), COVID-19
    • Denying emergency motion by state parties challenging federal vaccine mandate to allow district court to grant leave to amend the Complaint.
  • Viahart, L.L.C. v. GangPeng, 21-40166, appeal from E.D. Tex.
    • Graves, J. (Wiener, Graves, Ho), trademark infringement, default judgment
    • Affirming default judgment against defendants in trademark infringement suit.
  • Atkins v. Bales, 21-40542, appeal from E.D. Tex.
    • per curiam (Southwick, Graves, Costa), prisoner suit
    • Dismissing as frivolous appeal from dismissal of prisoner’s § 1983 claim.
  • U.S. v. Resendiz-Hernandez, 21-40573, appeal from S.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Garcia, 21-50433, appeal from W.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Ramirez-Perez, 21-50641, appeal from W.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.