May 25-26, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • Sanders v. The Boeing Co., 22-20317, appeal from S.D. Tex.
    • Elrod, J. (Elrod, Ho, Wilson), timeliness
    • Certifying to the Texas Supreme Court questions regarding the timeliness of filing a new suit after the original suit was dismissed for lack of jurisdiction, a question “concern[ing] the interpretation of a Texas statute that tolls the applicable statute of limitations where a prior petition is dismissed due to ‘lack of jurisdiction’ and refiled in a court of ‘proper jurisdiction’ within sixty days after the prior judgment ‘becomes final.'” The plaintiffs had filed in the Northern District of Texas; though the parties agree that the plaintiffs could have filed there had they included the proper allegations of diversity of citizenship, the court dismissed their petition for failure to include the right allegations, and that dismissal was affirmed by the Fifth Circuit. They refiled, with the right citizenship allegations, within sixty days of the affirmance of the dismissal. The district court dismissed the claims as barred by the statute of limitations.
    • The Court certified these questions to the Texas Supreme Court:
      • Does Texas Civil Practice & Remedies Code § 16.064 apply to this lawsuit where Plaintiffs could have invoked the prior district court’s subject matter jurisdiction with proper pleading?
      • Did Plaintiffs file this lawsuit within sixty days of when the prior judgment became “final” for purposes of Texas Civil Practice & Remedies Code § 16.064(a)(2)?

Unpublished

  • Gorsky v. Guajardo, 20-20084, appeal from S.D. Tex.
    • per curiam (Higginbotham, Smith, Dennis), Smith, J., dissenting; qualified immunity
    • Dismissing officer defendants’ appeal of denial of summary judgment on qualified immunity grounds for certain claims, finding that the claims at issue in the appeal turn on genuine disputes of material facts’ and affirming the district court’s denial of qualified immunity as to certain other claims.
    • Judge Smith dissented. As to excessive force claims, Judge Smith opined that “the majority gives clearly established law little more than lip service”; and “renders our jurisprudence unrecognizable” on the false-arrest claims.
  • U.S. v. Pitz, 22-10313, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Cruz, 22-10398, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Reedy, 22-10708, appeal from N.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), habeas corpus
    • Dismissing as frivolous appeal from denial of Rule 60(b) motion from denial of successive § 2255 petition.
  • U.S. v. Butler, 22-11079, appeal from N.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Cabrera, 22-11139, appeal from N.D. Tex.
    • per curiam (Jolly, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Rojas, 22-11245, appeal from N.D. Tex.
    • per curiam (Smith, Southwick, Douglas), criminal, supervised release
    • Affirming as constitutional revocation of supervised release.
  • Garcia v. Lee, 22-20357, appeal from S.D. Tex.
    • per curiam (Barksdale, Elrod, Haynes), prisoner suit
    • Affirming dismissal of Texas state prisoner’s deliberate indifference claims.
  • U.S. v. Jefferson, 22-40192, appeal from S.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), criminal, sufficiency of evidence, 404(b)
    • Affirming conviction of conspiracy to transport illegal aliens.
  • U.S. v. Hernandez-Martinez, 22-40744, appeal from S.D. Tex.
    • per curiam (Smith, Southwick, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Gomez-Gomez, 22-40792, appeal from S.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. King, 22-50607, appeal from W.D. Tex.
    • per curiam (King, Higginson, Willett), criminal, sufficiency of evidence, sentencing
    • Affirming convictions of aiding and abetting carjacking, aiding and abetting robbery, brandishing a firearm in relation to those offenses, and possession of a firearm by a convicted felon; but vacating sentence for possession of a firearm by a convicted felon as in excess of the statutory maximum for that offense, and remanding for resentencing on that count.
  • U.S. v. Orosco, 22-50768, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Campuzano-Henao, 22-51064, c/w 22-51066, appeal from W.D. Tex.
    • per curiam (King, Higginson, Willett), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry, and revocation of supervised release.
  • U.S. v. Rios-Hernandez, 22-51067, c/w 22-51074, appeal from W.D. Tex.
    • per curiam (King, Higginson, Willett), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry, and revocation of supervised release.
  • Hernandez v. Garland, 22-60538, petition for review of BIA order
    • per curiam (Barksdale, Higginson, Ho), immigration
    • Denying Salvadoran citizen’s petition for review of BIA order dismissing her appeal from an order of an Immigration Judge denying her 2020 motion to reopen and rescind the 2003 in absentia removal order entered against her after she failed to appear at the removal hearing.
  • Thornton v. Pittman, 23-10098, appeal from N.D. Tex.
    • per curiam (King, Jones, Smith), prisoner suit
    • Dismissing as frivolous appeal from dismissal of Texas state prisoner’s § 1983 claims.