December 15, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • Platero-Rosales v. Garland, 20-60707, petition for review of BIA order
    • Ho, J. (Richman, Ho, Engelhardt), Richman, C.J., concurring; immigration
    • Denying Salvadoran citizen’s petition for review of BIA order affirming IJ’s denial of motion to reopen proceedings for removal in absentia.
    • The Court held that the IJ did not err in finding that the failure to provide the petitioner with a Notice to Appear (“NTA”) was absolved by the petitioner’s failure to provide a mailing address where the NTA could be sent. The Court also upheld the IJ’s finding that the petitioner had been adequately verbally informed in Spanish of the consequences of failing to appear at her removal proceeding, and held that the United States is not required to give such notice in any language other than English.
    • Chief Judge Richman concurred. She addressed whether the opinion conflicted with Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021), and noted that it did not, because in that case the petitioner had provided his mailing address to the government.
  • Crawford v. Cain, 20-61019, appeal from N.D. Miss.
    • Oldham, J. (Smith, Duncan, Oldham), habeas corpus, ineffective assistance of counsel
    • Affirming denial of habeas petition on IAC claims with regard to trial for rape.
    • Of note, as part of the Court’s analysis, it looked at the effect of two recent U.S. Supreme Court decisions—Brown v. Davenport, 142 S. Ct. 1510 (2022), and Shinn v. Ramirez, 142 S. Ct. 1718 (2022). “Davenport and Ramirez thus indicate that courts should apply a two-prong framework to adjudicate habeas petitions from state prisoners. The first prong is business as usual: whether the state prisoner satisfies AEDPA and the usual equitable and prudential doctrines (e.g., procedural default and prejudicial error). The second prong is whether law and justice require granting habeas relief. Much like qualified immunity after Pearson v. Callahan, 555 U.S. 223 (2009), both prongs are necessary to get relief and a court may analyze either one first.” (Internal citations omitted).
    • The Court held that “[l]aw and justice do not require habeas relief—and hence a federal court can exercise its discretion not to grant it—when the prisoner is factually guilty.”
  • Defense Distributed v. Platkin, 22059669, appeal from W.D. Tex.
    • Smith, J. (Smith, Barksdale, Haynes), First Amendment, jurisdiction
    • Affirming dismissal of preliminary-injunction motion against New Jersey Attorney General in case challenging on First Amendment grounds the New Jersey prohibition on publication of 3D printing instructions for 3D-printed firearms.
    • In a prior appeal, the Court had held that the district court’s severance and transfer of claims against the NJAG to the federal district court in New Jersey was a clear abuse of discretion; but, because the case had already been transferred and the Fifth Circuit did not have jurisdiction to order the re-transfer back, it ordered the district court to request that the New Jersey court transfer it back under principles of comity and federalism. The New Jersey court refused, and the plaintiffs then filed a preliminary injunction motion in the federal district court in Texas.
    • The Court held that the district court correctly dismissed the preliminary injunction motion for a lack of jurisdiction. “We face a jurisdictional thicket. On the one hand, claims that we have found were wrongly severed from an existing case in this circuit are now being adjudicated improperly in New Jersey. That creates an erroneous absence of claims in the Western District of Texas and, concurrently, an errant presence of claims against NJAG in New Jersey. The breakdown in comity across courts only adds more thorns to this tangle.” Nevertheless, despite two novel theories by plaintiffs, the Court held unequivocally that “[t]he transfer ended our control over the case.”

Unpublished

  • Biron v. Upton, 19-10862, appeal from N.D. Tex.
    • per curiam (Stewart, Elrod, Graves), Bivens claim
    • Affirming dismissal of Bivens claim arising from confiscation of manuscript.
  • U.S. v. Trevino, 19-11202, appeal from N.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal, sentencing
    • Affirming 235-month sentence on conviction of production of child pornography.
  • Njila v. Garland, 20-60855, petition for review of BIA order
    • per curiam (Wiener, Elrod, Engelhardt), immigration
    • Granting in part and denying in part Cameroonian citizen’s petition for review of BIA order, granting as to whether the evidence in the record demonstrates a reasonable fear of future persecution, but denying as to whether future persecution is shown by a pattern or practice.
  • Mogollon v. The Bank of New York Mellon, 21-11212, appeal from N.D. Tex.
    • per curiam (Wiener, Higginson, Wilson), breach of fiduciary duty, timeliness
    • Reversing judgment that plaintiffs’ breach of fiduciary claims had not been tolled under New Jersey’s discovery rule, and remanding for further proceedings.
  • U.S. v. Carter, 21-20638, appeal from S.D. Tex.
    • per curiam (King, Higginson, Willett), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Underwood, 21-30518, c/w 21-30528, appeal from W.D. La.
    • per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing
    • Affirming sentence on revocation of supervised release.
  • U.S. v. Lozano, 21-30682, appeal from W.D. La.
    • per curiam (Stewart, Duncan, Wilson), criminal, search and seizure
    • Affirming conviction of conspiring to possess with intent to distribute methamphetamine, upholding denial of motion to suppress.
  • Whitley v. Lumpkin, 21-50176, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Oldham), habeas corpus
    • Affirming denial of habeas petition.
  • Boyd v. King, 21-60708, c/w 22-60104, appeal from S.D. Miss.
    • per curiam (Jones, Haynes, Oldham), prisoner suit
    • Affirming dismissal of Mississippi state prisoner’s § 1983 claims.
  • Matadi v. Garland, 21-60921, petition for review of BIA order
    • per curiam (Stewart, Duncan, Wilson), immigration
    • Denying Angolan citizen’s petition for review of BIA order denying his motions to reopen his removal proceedings and to reconsider its prior decision affirming the immigration judge’s (IJ’s) denial of asylum, withholding of removal, and protection under the CAT.
  • U.S. v. Saucedo, 22-10041, appeal from N.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Kidd, 22-10356, appeal from N.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Navarro, 22-10439, appeal from N.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Reich, 22-10466, appeal from N.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Yrdanoff, 22-10484, appeal from N.D. Tex.
    • Southwick, J. (Jones, Southwick, Ho), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Garcia-Archaga, 22-10615, appeal from N.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal, sentencing
    • Affirming sentence on conviction of illegal reentry.
  • Winn v. Brunswick Corp., 22-20150, appeal from S.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), arbitration
    • Affirming order compelling arbitration of claims of breach of contract through racial animus.
  • Tra-Dor, Inc. v. Certain Underwriters at Lloyds of London, 22-30372, appeal from W.D. La.
    • per curiam (Davis, Duncan, Engelhardt), insurance
    • Dismissing for lack of appellate jurisdiction dismissal of claims against insurance adjusters in insurance lawsuit arising from Hurricane Laura.
  • U.S. v. Hernandez-Cuevas, 22-50353, appeal from W.D. Tex.
    • per curiam (Jolly, Jones, Ho), criminal, sentencing
    • Affirming 16-month sentence and conviction for illegal reentry.
  • Delk v. Perkins, 22-50547, appeal from W.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), prisoner suit
    • Dismissing as frivolous appeal from dismissal of Texas state prisoner’s § 1983 claims.
  • Sarpong v. Garland, 22-60042, petition for review of BIA order
    • per curiam (Stewart, Duncan, Wilson), immigration
    • Denying Ghanaian citizen’s petition for review of BIA order denying motion to reopen proceedings.
  • Loza-Aguilar v. Garland, 22-60056, petition for review of BIA order
    • per curiam (Stewart, Duncan, Wilson), immigration
    • Denying Salvadoran citizen’s petition for review of BIA order dismissing appeal from a decision of the immigration judge denying him asylum, withholding of removal, and relief under the Convention Against Torture.
  • Ramirez v. Garland, 22-60127, petition for review of BIA order
    • per curiam (Jolly, Jones, Ho), immigration
    • Denying Honduran citizens’ petition for review of BIA order dismissing their appeal from the denial by the immigration judge (IJ) of their application for asylum, withholding of removal, and relief under the CAT.
  • Simpson v. Mayorkas, 22-60149, appeal from S.D. Miss.
    • per curiam (Jones, Smith, Graves), § 1983
    • Affirming dismissal of claims.
  • U.S. v. McAfee, 22-60284, appeal from S.D. Miss.
    • per curiam (Stewart, Duncan, Wilson), habeas corpus
    • Affirming denial of § 2255 motion.