April 12-15, 2024, opinions

Posted on by tadbartlett

Designated for publication

  • Rivers v. Lumpkin, 21-11031, appeal from N.D. Tex.
    • Stewart, J. (Richman, Stewart, Dennis), habeas corpus
    • Affirming district court’s dismissal of second-in-time § 2254 petition as a successive habeas petition, rejecting argument that the fact that the appeal of the denial of the petitioner’s first-in-time § 2254 petition was still pending made his second-in-time petition merely an amendment of the first-in-time petition and not a successive second petition.
    • “In this case, we cannot characterize Rivers’s second-in-time petition as a motion to amend because he adds several new claims that stem from the proceedings already at issue in his first § 2254 petition. The fact that Rivers’s later-obtained client file allegedly contained information that was not available to him when he filed his first-in-time § 2254 petition does not excuse him from meeting the standards for seeking authorization under § 2244.”
  • Anderson v. Harris County, 22-20627, appeal from S.D. Tex.
    • Haynes, J. (Wiener, Haynes, Higginson), municipal liability
    • Affirming 12(b)(6) dismissal of county from plaintiffs’ First Amendment retaliation claims based on alleged conduct of elected constable, on basis that constable was not a policymaker for the County.
    • “Here, the district court found that Diaz is not a policymaker because a constable serving a single precinct does not make employment policy for all of Harris County. We agree. Our precedent makes clear that a constable’s employment decisions within his own precinct do not constitute county-wide policy.” The Court also held that the County is not liable on a delegation of “rubber-stamp” theory.
  • U.S. v. Brannan, 23-40098, appeal from S.D. Tex.
    • Duncan, J. (Elrod, Willett, Duncan), criminal
    • Affirming conviction of possessing an unregistered “destructive device” in violation of 26 U.S.C. § 5861(d).
    • The Court held that the exception for a device not “designed for use as a weapon” is an affirmative defense, not an element of the crime that the government would have to prove beyond a reasonable doubt.

Unpublished

  • J.D. Abrams, L.P. v. OSHA, 22-60610, petition from OSHA decision
    • per curiam (Jones, Barksdale, Elrod), occupational safety
    • Denying petition for review of an ALJ affirming two citations by the OSHA for worksite violations involving excavation of a trench: cave-in protection; and ladder-length standards; rejecting challenge to ALJ’s conclusion that Abrams failed to establish its unpreventable-employee-misconduct (UEM) affirmative defense.
  • U.S. v. Rosa, 23-10328, appeal from N.D. Tex.
    • per curiam (Richman, Graves, Wilson), criminal, sentencing
    • Dismissing appeal as barred under appeal waiver of plea agreement, regarding assessment payment schedule as part of conditions of supervised release.
  • U.S. v. Ramirez, 23-10722, appeal from N.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Euristhe v. Beckmann, 23-10744, appeal from N.D. Tex.
    • per curiam (Jolly, Higginson, Duncan), foreclosure
    • Dismissing for lack of appellate jurisdiction appeal from denial of TRO and preliminary injunction related to foreclosure.
  • U.S. v. Gonzalez-Garcia, 23-10863, appeal from N.D. Tex.
    • per curiam (Higginson, Ho, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Kelly, 23-20255, appeal from S.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Vasquez v. Home Depot USA, Inc., 23-20457, appeal from S.D. Tex.
    • per curiam (Davis, Ho, Ramirez), personal tort
    • Affirming summary judgment dismissal of premises liability and negligence claims.
  • U.S. v. Ruiz, 23-20514, appeal from S.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Moran, 23-40402, appeal from E.D. Tex.
    • per curiam (Jolly, Engelhardt, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Perez-Lopez, 23-40587, appeal from E.D. Tex.
    • per curiam (Jolly, Engelhardt, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Aguilar, 23-50643, appeal from W.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Maradiaga-Palma v. Garland, 23-60461, petition for review of BIA order
    • per curiam (Higginbotham, Stewart, Southwick), immigration
    • Denying Honduran citizens’ petition for review of BIA order upholding IJ’s denial of asylum, withholding of removal and protection under the CAT.
  • Karvounis v. Garland, 23-60510, petition for review of BIA order
    • per curiam (Wiener, Stewart, Douglas), immigration
    • Denying in part and dismissing in part Greek citizen’s petition for review of BIA order denying his motion to reopen his immigration proceedings for the purpose of seeking cancellation of removal.