October 25-27, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • Munoz v. Intercontinental Terminals Co., 22-20456, appeal from S.D. Tex.
    • Jolly, J. (Jolly, Southwick, Oldham), Oil Pollution Act, CERCLA
    • Affirming summary judgment dismissal of OPA claims arising from spill of mixture of oil and hazardous substances into the Houston shipping channel, holding that the mixed spill is not a spill of “oil” under OPA, but instead falls within the carve-out for CERCLA substances.
  • Chisom v. Louisiana, 22-30320, appeal from E.D. La.
    • Wiener, J. (Wiener, Stewart, Engelhardt), Engelhardt, J., dissenting; Voting Rights Act
    • Affirming district court’s denial of Rule 60(b)(5) motion to dissolve consent decree under Voting Rights Act regarding election of state supreme court justices.
    • The Court held that the State failed to prove good faith compliance with the consent decree’s requirement of prospective compliance with the Voting Rights Act. “Here, the State provided no evidence, plans, or assurances of compliance with Section 2 of the VRA in the event that the Consent Judgment is terminated. The State’s evidence focuses only on past compliance with the Consent Judgment.”
    • The Court also held that the State failed to show changed factual conditions necessary to argue that changed conditions had rendered continued enforcement of the consent decree inequitable.
    • Judge Engelhardt dissented. He would find that the State met its evidentiary burdens to return apportionment of the supreme court districts to the state legislature rather than the consente decree.
  • U.S. v. Johnson, 22-30421, appeal from E.D. La.
    • Higginson, J. (Graves, Higginson, Ho), criminal, prosecutorial conduct, hearsay
    • Affirming conviction arising from armed robbery, holding that any error in the “prosecutor’s fallacy” in commenting on DNA-related probabilities was harmless error, and holding that there was no hearsay error in admission of co-defendant’s statement.
  • Anytime Fitness, L.L.C. v. Thornhill Brothers Fitness, L.L.C., 22-30757, appeal from W.D. La.
    • per curiam (Richman, Southwick, Oldham), bankruptcy
    • Reversing bankruptcy court’s order and rejecting argument that bankruptcy court is required to approve “a debtor’s partial assignment of an executory contract.”
  • U.S. v. Abbott, 22-50212, appeal from W.D. Tex.
    • Oldham, J. (Stewart, Willett, Oldham), Stewart, J., dissenting; sovereign immunity
    • Reversing denial of sovereign immunity to Governor of Texas on sec. 1983 suit brought to enjoin enforcement of Governor’s executive order prohibiting providing ground transportation to migrants who were previously detained or subject to expulsion.
    • The Court held that Ex parte Young did not apply to the request for injunctive relief because the executive order tasked someone other than the Governor with enforcement.
    • Judge Stewart dissented. He would hold that the combination of the executive order and the Texas Government Code provided more than the mere scintilla of involvement with enforcement required to trigger Ex parte Young.

Unpublished

  • U.S. v. Sanders, 22-50096, appeal from W.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal, sentencing
    • Affirming 188-month sentence on conviction of conspiracy to possess with intent to distribute, and conspiracy to distribute, a quantity of a mixture or substance containing a detectable amount of cocaine base.
  • U.S. v. Diaz, 23-10197, appeal from N.D. Tex.
    • per curiam (Haynes, Graves, Higginson), criminal, sentencing
    • Affirming sentence on conviction for possession of stolen mail.
  • U.S. v. Thomas, 23-10243, appeal from N.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Sanchez-Resendez, 23-10462, appeal from N.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Picazo-Torres, 23-20146, appeal from S.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Davis v. Caddo Department of Public Works, 23-30108, appeal from W.D. La.
    • per curiam (Higginbotham, Stewart, Southwick), prisoner suit
    • Affirming dismissal of Louisiana state prisoner’s sec. 1983 claim, and imposing sanctions.
  • U.S. v. Fulwiler, 23-30152, appeal from W.D. La.
    • per curiam (Haynes, Graves, Higginson), criminal, sentencing
    • Affirming conviction and 60-month sentence for possession of a firearm by a felon.
  • U.S. v. Cardenas, 23-50104, appeal from W.D. Tex.
    • per curiam (Jolly, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Hernandez, 23-50205, appeal from W.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Orey, 23-60142, appeal from S.D. Miss.
    • per curiam (Barksdale, Engelhardt, Wilson), criminal, supervised release
    • Affirming 12-month sentence on revocation of supervised release.
  • U.S. v. Skinner, 23-60364, appeal from S.D. Miss.
    • per curiam (Jones, Higginson, Ho), criminal
    • Dismissing as frivolous appeal from 2004 convictions.