July 8, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Kelley, 20-30436, appeal from W.D. La.
    • Elrod, J. (King, Elrod, Southwick), habeas corpus
    • Vacating district court’s denial of habeas relief on petitioner’s § 2255 petition, holding that the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191, 219 (2019), that knowledge of felony status is an essential element of the offense of possession of a firearm by a felon, supplied a new right that applies retroactively to initial petitions. Remanding for further proceedings.
  • U.S. v. Valas, 20-50830, appeal from W.D. Tex.
    • Wilson, J. (Willett, Engelhardt, Wilson), habeas corpus
    • Affirming denial of § 2255 petition challenging alleged Brady violation for suppression of interview report with sex trafficking victim, prosecutorial misconduct for impermissibly vouching for victim’s credibility, IAC for his trial counsel’s failure to adequately cross-examine the victim and impeach her credibility, and IAC for direct appeal counsel’s failure to raise issue of district court’ s failure to give modified unanimity instruction regarding disparity in dates of commission of crime between the victim’s testimony and the indictment.
    • As to the Brady violation, the Court admonished the Government to not fail to produce something as routine as a 302 interview report, which here deprived the petitioner of material he could have used in cross-examining both the testifying FBI agent and the victim. However, the Court upheld the district court’s finding that the 302 report here was not material to the petitioner’s defense. The Court noted that the differences between the victim’s testimony and what was related in the 302 report were difference “in magnitude of detail rather than substance. … These differences are hardly the grand ‘gotchas’ [petitioner] makes them out to be.”
    • As to the IAC claims, the Court held that there was not sufficient evidence of prejudice to the petitioner from the alleged failings of his trial counsel and direct appeal counsel.
  • Gudiel-Villatoro v. Garland, 20-61050, petition for review of BIA order
    • per curiam (King, Elrod, Southwick), immigration
    • Denying Guatemalan citizen’s petition for review of BIA order dismissing his appeal and upholding the denial of his motion to reopen removal proceedings.
    • The Court held that the time-and-date rule of Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), did not support a reopening of an in absentia removal order when the petitioner had failed to provide an address where he can be reached with that information. “‘No written notice shall be required … if the alien has failed to provide the address required under section 1229(a)(1)(F) of this title.’ 8 U.S.C. § 1229a(b)(5)(B). Thus, an alien ‘forfeits his right to notice by failing to provide a viable mailing address’ and ‘cannot seek to reopen the removal proceedings and rescind the in absentia removal order for lack of notice.’ Spagnol-Bastos v. Garland, 19 F.4th 802, 806 (5th Cir. 2021).”

Unpublished

  • U.S. v. Pryor, 20-10678, appeal from N.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • White v. Hayden, 20-40689, appeal from E.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), prisoner suit
    • Dismissing as frivolous appeal from dismissal of prisoner’s § 1983 suit.
  • De Flores v. Garland, 20-60135, petition for review of BIA order
    • per curiam (Wiener, Dennis, Haynes), immigration
    • Denying Salvadoran citizens’ petition for review of BIA order dismissing appeal from immigration judge’s (IJ) denial of their applications for asylum, withholding of removal, and protection under the Convention Against Torture.
  • Almanza v. Garland, 20-60381, petition for review of BIA order
    • per curiam (Wiener, Dennis, Haynes), immigration
    • Denying Mexican citizen’s petition for review of petition for review of BIA order dismissing appeal from immigration judge’s (IJ) denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture
  • Requeno-Gomez v. Garland, 20-61096, petition for review of BIA order
    • per curiam (Barksdale, Costa, Engelhardt), immigration
    • Granting Salvadoran citizen’s petition for review of BIA order denying his motion to reopen his removal proceeding in order to rescind an in absentia removal order and to grant cancellation of removal, vacating BIA order, and remanding for further proceedings.
  • Kennemer v. Parker County, 21-10467, appeal from N.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), prisoner suit
    • Affirming dismissal of former prisoner’s § 1983 claims, and remanding for resolution of pending claims that were not part of appeal.
  • Miciotto v. Hobby Lobby Stores, Inc., 21-30456, appeal from W.D. La.
    • per curiam (Higginbotham, Haynes, Wilson), personal tort, removal
    • Affirming district court’s denial of motion to remand on basis that non-diverse defendants were improperly joined, and affirming judgment on jury verdict in favor of defendant on trip-and-fall case, upholding evidentiary rulings made by the district court.
  • U.S. v. Estrada-Marroquin, 21-40518, appeal from S.D. Tex.
    • per curiam (Richman, Ho, Engelhardt), criminal, sentencing
    • Affirming conviction and sentence on count of importing 500 grams or more of a mixture containing methamphetamine.
  • U.S. v. Ackah, 21-40665, appeal from S.D. Tex.
    • per curiam (King, Elrod, Southwick), criminal, sentencing
    • Affirming in part and vacating in part conviction and sentence for transporting and attempting to transport an alien within the United States as well as conspiracy to do the same, remanding to conform written judgment to oral pronouncement of sentence.
  • U.S. v. Sells, 21-40887, appeal from E.D. Tex.
    • per curiam (Clement, Southwick, Higginson), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • Rodgers v. USAA, 21-50606, appeal from W.D. Tex.
    • per curiam (King, Elrod, Southwick), Family and Medical Leave Act, arbitration
    • Affirming judgment of district court confirming arbitration award in favor of employer on plaintiff’s FMLA claim.
  • U.S. v. Villarreal-Solis, 21-50803, appeal from W.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • Juarez-Agurcia v. Garland, 21-60179, petition for review of BIA order
    • per curiam (Wiener, Dennis, Haynes), immigration
    • Denying Honduran citizen’s petition for review of BIA order affirming the decision of an Immigration Judge (IJ) denying her application for their asylum, withholding of removal, and relief under the Convention Against Torture.
  • Luna-Flores v. Garland, 21-60358, petition for review of BIA order
    • per curiam (Higginbotham, Higginson, Duncan), immigration
    • Denying Honduran citizen’s petition for review of BIA order adopting and affirming the immigration judge’s (IJ) order denying her withholding of removal.
  • U.S. v. Flores-Hernandez, 22-10024, appeal from N.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Norris, 22-10155, appeal from N.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.