July 7, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • Flores v. Lumpkin, 21-20579, appeal from S.D. Tex.
    • King, J. (King, Jones, Duncan), habeas corpus, ineffective assistance of counsel
    • Affirming denial of habeas relief on ineffective assistance of counsel claim.
    • Under AEDPA’s “doubly deferential review,” the Court held that the petitioner’s trial counsel’s failure to object to lay and expert testimony about the credibility of a child’s testimony was “arguably cumulative … and therefore harmless where the jury had other opportunities to assess the complainant’s credibility itself.” The Court also held that “the jury was provided with more than enough evidence to convict Flores without the challenged testimony, and we are unable to say that every reasonable jurist would believe it reasonably likely that Flores would have been acquitted if trial counsel had objected.”

Unpublished

  • Diaz v. Garland, 21-60956, petition for review of BIA order
    • per curiam (Graves, Ho, Duncan), immigration
    • Dismissing Honduran citizen’s petition for review of BIA order affirming IJ’s denial of cancellation of removal.
  • Sauls v. 24 Hour Fitness USA, Inc., 22-10182, appeal from N.D. Tex.
    • per curiam (Higginbotham, Graves, Douglas), personal tort
    • Reversing judgment as a matter of law in favor of defendant in premises liability suit and rendering judgment on jury verdict in plaintiffs’ favor.
  • U.S. v. Easton, 22-11188, appeal from N.D. Tex.
    • per curiam (Jolly, Jones, Engelhardt), criminal
    • Affirming constitutionality of conviction of possession of a firearm by a felon.
  • Carter v. Texas, 22-11197, appeal from N.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), prisoner suit
    • Affirming dismissal of Texas state prisoner’s suit.
  • U.S. v. Mays, 22-11222, appeal from N.D. Tex.
    • per curiam (Stewart, Dennis, Willett), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Moore v. Wells Fargo Bank, N.A., 22-20138, appeal from S.D. Tex.
    • per curiam (Graves, Ho, Duncan), timeliness, banking law
    • Certifying questions to the Texas Supreme Court regarding applicability of four-year limitations period on real property liens:
      • “May a lender simultaneously rescind a prior acceleration and re-accelerate a loan under Tex. Civ. Prac. & Rem. Code § 16.038?”
      • “If a lender cannot simultaneously rescind a prior acceleration and re-accelerate a loan, does such an attempt void only the re-acceleration, or both the re-acceleration and the rescission?”
  • U.S. v. Penate, 22-20661, appeal from S.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal, sentencing
    • Remanding for resentencing under opinion that Texas aggravated assault not be treated as an aggravated felony for purposes of sentencing for conviction of illegal reentry.
  • Halstead Bead, Inc. v. Richards, 22-30373, appeal from E.D. La.
    • per curiam (Higginbotham, Southwick, Willett), Tax Injunction Act
    • Affirming dismissal under the Tax Injunction Act of online retailer’s suit challenging Louisiana’s sales- and use-tax system as violative of the Dormant Commerce Clause and Due Process.
  • Carmona v. Warden, 22-40834, appeal from E.D. Tex.
    • per curiam (Dennis, Elrod, Willett), habeas corpus
    • Affirming dismissal of § 2241 petition.
  • U.S. v. Rakestraw, 23-10016, appeal from N.D. Tex.
    • per curiam (Jolly, Jones, Engelhardt), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Torres-Gaitan, 23-20012, appeal from S.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Khalil v. Department of Corrections, 23-30026, appeal from M.D. La.
    • per curiam (Higginbotham, Graves, Ho), prisoner suit
    • Vacating judgment dismissing former Louisiana prisoner’s § 1983 claims for failure to exhaust administrative remedies, and remanding for further proceedings.
  • U.S. v. Zacchi, 23-40015, appeal from S.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Cadenas, 23-50094, c/w 23-50097, appeal from W.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.