Eleventh Circuit Opinions

The Eleventh Circuit has issued 6 published opinions in the past 2 weeks:

Evans v. Sec’y, Dep’t of Corrections

Denial of habeas petition affirmed; ineffective assistance of counsel argument failed where the allegedly omitted evidence of a capital murderer’s mental health problems – including antisocial personality disorder, cocaine and alcohol abuse, many drug and firearm related crimes, and history of escalating violence particularly toward women – was likely to be more harmful than helpful if introduced as mitigation during the penalty phase of his trial.

Zhu v. U.S. Attorney Gen.

Vacating the Board of Immigration Appeal’s (BIA) decision to overturn the immigration judge’s (IJ) factual findings (particularly the finding that Zhu would likely be forcibly sterilized upon returning to China) because the BIA conducted its own de novo review of the evidence; the proper standard of review for an IJ’s factual findings is clear error.

United States v. Sandobal*

Guilty plea and prison sentence for unlawful reentry affirmed. (1) By pleading guilty, the accused waived his argument that the district court erred when it accepted his guilty plea and enhanced his sentence for having been removed following a conviction for an aggravated felony. (2) The accused’s argument that the district court erred when it increased the offense level under the Sentencing Guidelines for having been convicted of a “crime of violence” before his removal was foreclosed by prior precedent. United States v. Romo-Villalobos, 674 F.3d 1246, 1251 (11th Cir. 2012).  (3) The district court did not err when it increased his criminal history by 2 points for his prior disorderly intoxication conviction. Disorderly intoxication is more similar to a conviction for disorderly conduct, which may be counted in an accused’s criminal history score, than to a conviction for public intoxication, which is never counted.

United States v. Petite*

An accused’s prior conviction for intentional vehicular flight from an authorized law enforcement patrol car in violation of Florida law is a violent felony for purposes of enhancing the accused’s sentence pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e).

Fla. Transp. Servs., Inc. v. Miami-Dade Cnty.

The Miami Port Director’s stevedoring permit practices were not even-handed and were designed to prevent entry into the market by new stevedore companies, burdening interstate commerce without local benefit in violation of the dormant Commerce Clause.

Smith v. Comm’r, Ala. Dep’t of Corrections

The petitioner’s habeas corpous petition was not timely filed within the 1-year statute of limitations provided by the Antiterrorism and Effective Death Penalty Act (AEDPA). The petitioner’s application for state post-conviction relief did not statutorily toll AEDPA’s 1-year filing deadline where the petitioner had not properly filed his state petition within the 1-year deadline. Moreover, the deadline was not tolled on equitable grounds due to the petitioner’s attorney’s conduct.

The Court issued 47 unpublished opinions in the last 2 weeks; those are available here.

*Notably, Honorable Sandra Day O’Connor, Associate Justice (Retired) of the United States Supreme Court, sat by designation in these cases.

Eleventh Circuit Opinions

The Eleventh Circuit published 5 opinions this week:

Kragor v. Takeda Pharms. Am., Inc.

Summary judgment reversed. Evidence that a corporate executive who terminated an employee for alleged misconduct but later said that the employee was an exceptional employee who had done nothing wrong and should not have been fired, coupled with a prima facie case, is sufficient to submit an age discrimination claim to a jury.

Miller’s Ale House, Inc. v. Boynton Carolina Ale House, Inc.

Summary judgment affirmed. Common law trademark infringement claim was barred by issue preclusion where the Fourth Circuit, in previous litigation between the parties, had determined that the words “ale house” were generic and not entitled to protection. Common law trade dress claim failed as a matter of law, because the look of the restaurant was not inherently distinctive. Copyright infringement claim based on allegedly infringing floor plans failed, because the plaintiff and defendant’s restaurant floor plans were not substantially similar.

Harris v. Liberty Community Mgmt., Inc.

The Fair Debt Collection Practices Act imposes civil liability on debt collectors for certain prohibited debt collection practices, but it exempts some individuals and entities from its provisions. One such exemption under 15 U.S.C. § 1692a(6)(F)(i) provides that the FDCPA does not apply to persons or entities “collecting or attempting to collect any debt owed . . . another to the extent such activity is incidental to a bona fide fiduciary obligation.” The Court held that this exemption applies to a management company that collects unpaid assessments on behalf of a homeowners association, as long as the collection of such assessments from homeowners is not central to the management company’s fiduciary obligations.

Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta v. The Florida Friory of the Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, the Ecumenical Order

The Court sua sponte vacated and reconsidered its original opinion in this case. It determined that the district court’s cancellation of four registered service marks, based on a finding that those marks were procured by fraud, was erroneous a improperly borrowed the standard for considering the fraudulent procurement argument from a patent case.

Pooler v. Sec’y, Fla. Dep’t of Corrections

The denial of a Florida death row inmate’s petition for a writ of habeas corpus based on allegedly ineffective assistance of counsel — where inmate argued that his attorney failed to discover that certain information the inmate himself had told the attorney was false and that his attorney relied on court-appointed competency experts instead of retaining an expert to investigate mitigation evidence — was not unreasonable.

The Eleventh Circuit also issued 41 unpublished opinions, which are available here.

Eleventh Circuit Roundup: Published Opinions

The Eleventh Circuit issued 4 published opinions this week:

In re Witcher

A court may take into account a debtor’s ability to pay his or her debts in determining whether “the totality of the circumstances . . . of the debtor’s financial situation demonstrates abuse” of Chapter 7 of the Bankruptcy Code under 11 U.S.C. § 707(b)(3)(B).

United States v. Laist

Based on the totality of the circumstances presented, the government acted reasonably in obtaining a search warrant after 25 days of holding a computer based on probable cause, including the admission of the accused that the computer contained child pornography.

United States v. Thompson

The district court properly denied the defendant’s motion to dismiss his indictment for felon in possession of a firearm. The defendant argued that the State of Alabama had restored his right to vote, which negated his status as a felon under 18 U.S.C. § 921(a)(20). The district court found that § 921(a)(20) does not apply when only voting rights are restored and denied the motion to dismiss.

907 Whitehead Street, Inc. v. Sec’y of the U.S. Dep’t of Agric.

The Ernest Hemingway Home and Museum, which is home to 44 free-roaming cats that are part of the attraction, is an “animal exhibitor” under the Animal Welfare Act and, therefore, is subject to USDA regulation.

Eleventh Circuit Roundup: Unpublished Opinions

The Court issued 32 unpublished opinions this week:

Lapica v. Comm’r of Soc. Sec. (disability insurance benefits, Medical Vocational Guidelines, vocational expert)

Smith v. Comm’r of Soc. Sec. (disability insurance benefits, supplemental security income, mental health)

Glover v. City of Pensacola, Fla. (firefighters’ hostile work environment and disparate treatment claims)

Kinnett v. Strayer Educ., Inc. (securities fraud)

Skytruck Co. v. Sikorsky Aircraft Corp. (tortious interference, bad faith, unjust enrichment)

United States v. Presley (Sentencing Guidelines, resentencing, crack offense, career offender)

United States v. Alcemius (reasonableness of sentence)

Feliciano v. United States (certificate of appealability, ineffective assistance of counsel, evidentiary hearing)

Ledlow v. Givens (state prisoner § 1983 claim, excessive force)

United States v. Tomlin (making false statements in a matter within the jurisdiction of a department or agency of the United States, motion for acquittal, calculation of restitution)

United States v. Julian (cocaine distribution conspiracy, motion to suppress evidence)

United States v. Brown (felon in possession of a firearm, possession with intent to distribute methamphetamine, calculating amount of drugs for sentencing)

United States v. Hankins (wire fraud, sentencing)

United States v. Perez-Zuniga (illegal reentry, guilty plea, sentence above the applicable guideline range, variance, departure)

United States v. Russell (mail fraud, conspiracy)

Pan v. U.S. Attorney Gen. (Chinese citizen, Board of Immigration Appeals, reopen, changed country conditions, asylum)

In re Steffen (non-final bankruptcy court order)

Guerrero v. U.S. Attorney Gen. (Colombian citizen, immigration, asylum, UN Convention Against Torture)

Pantoja v. Edward Zengel & Sons Express, Inc. (ERISA, unpaid contributions to an employee 401(k) plan are not “plan assets” pursuant to the governing documents)

Pardo v. Palmer (Florida prisoner, death penalty, Eighth Amendment, Fourteenth Amendment, stay denied)

Milakovich v. USCIS – Orlando (lack of jurisdiction, failure to state a claim, Immigration and Nationality Act, Fifth and Fourteenth Amendments)

Emmanuelli v. Priebus (Republican National Convention delegates, dismissal pursuant to Rule 12(b)(6))

McGowan v. Homeward Residential, Inc. (foreclosure, dismissal pursuant to Rule 12(b)(6))

United States v. Vega (possession and distribution of cocaine, sentencing, firearm enhancement, premises enhancement)

United States v. Stevens (Rule 36 motion to correct presentence investigation report, substantive not clerical correction: possession of cannabis, felony versus misdemeanor, career offender status)

United States v. Campbell (withdrawal of appointed appellate counsel, no arguable issues of merit)

Gilliard v. Ga. Dep’t of Corrections (disability discrimination, summary judgment for employer)

Wilson v. Comm’r of Soc. Sec. (disability insurance benefits, supplemental security income, pain standard, credibility determinations)

United States v. Blanco (motion to withdraw guilty plea, assistance of counsel)

United States v. Blanks (withdrawal of appointed appellate counsel, no arguable issues of merit)

United States v. Trevino (withdrawal of appointed appellate counsel, no arguable issues of merit)

United States v. Denmark (withdrawal of appointed appellate counsel, no arguable issues of merit)

Eleventh Circuit Decisions

Jimenez-Galicia v. Holder

Absent a genuine question of law, the Court lacks jurisdiction to review the Board of Immigration Appeals’ discretionary determination that the petitioner lacked good moral character and was due to be removed.

Loftus v. Clark-Moore

Dismissal on qualified immunity grounds was warranted where a father had not shown that the two social workers against whom he had filed the complaint violated clearly established federal rights during an investigation of alleged child abuse by interviewing a minor without her father’s consent and by threatening to remove the minor and a sibling from the father’s care.

Hemispherx Biopharma, Inc. v. Mid-South Capital, Inc.

Applying Georgia law: the statute of frauds does not bar enforcement of an unsigned letter agreement where one party has performed under the unsigned contract and the other party accepted that performance; genuine factual disputes preclude summary judgment; absent proof that a representation was made, that the representation was false, or that another party changed its behavior based upon reliance on that misrepresentation, a fraud claim fails as a matter of law; and intentional interference with business relationships requires a showing of malice or intent to injure.

ACLU of Florida v. Dixie County, Florida

In a case involving a constitutional challenge to a religious statue located outside the courthouse in Dixie County, a material conflict in the evidence precluded summary judgment.

United States v. Mathurin

The time during which plea negotiations are conducted is not automatically excludable from the Speedy Trial Act’s 30-day window for filing an information or indictment.

Dormescar v. Holder

A subsequent immigration proceeding raising charges that could not have been brought in the first proceeding is not barred by res judicata; the Department of Homeland Security has broad regulatory authority to amend notices to appear to make new factual allegations and bring new charges.

Ponticelli v. Florida Department of Corrections

On habeas review: the Supreme Court of Florida reasonably applied clearly established federal law in determining that the prosecution did not violate his due process rights by allegedly suppressing evidence and in finding that trial counsel did not render deficient performance before and during that competency hearing.

Kuenzel v. Alabama Department of Corrections

Where petitioner’s claims are procedurally barred under state law and he has made no attempt to demonstrate good cause for or prejudice from his default, petitioner cannot obtain habeas relief without properly supporting a claim of actual innocence.

Seff v. Broward County, Florida

Under the Americans with Disabilities Act (ADA), an employer cannot require a medical examination or inquire of an employee as to the nature or severity of the disability, unless such inquiry or examination is job-related and consistent with business necessity. However, where an employee wellness program qualifies as a term of a bona fide benefit plan, it falls within the safe harbor provision of, and so will not violate, the ADA.

Pendergast v. Sprint Solutions, Inc.

Initially, the Court certified questions of Florida law related to arbitration and class action waiver provisions to the Florida Supreme Court. Subsequently, the U.S. Supreme Court issued its decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), holding that the Federal Arbitration Act (FAA) preempted California’s judicial rule on the unconscionability of class action waivers in consumer contracts. The 11th Circuit, therefore, affirmed the district court’s order compelling arbitration pursuant to the terms of Sprint’s service agreement, consistent with the FAA.

Georgia Latino Alliance for Human Rights v. Governor of Georgia

Affirming the preliminary injunction with respect to section 7 of Georgia’s immigration law (criminalizing the transportation or concealment of an illegal alien or the encouragement of an illegal alien to enter the state of Georgia) based upon a likelihood of success on the merits due to the section’s inconsistency with the federal immigration scheme; reversing the preliminary injunction as to the pre-enforcement challenge to section 8 (authorizing officers to investigate immigration status of individuals who cannot produce adequate identification to prove citizenship, provided probable cause exists that the individual has committed a crime), because the Supreme Court upheld a similar provision in Arizona.

Eleventh Circuit Decision: Alabama Immigration Law

The Eleventh Circuit issued its decision today in the companion cases challenging Alabama’s immigration law, House Bill 56 known as the Beason-Hammon Alabama Taxpayer and Citizen Protection Act. The Court preliminarily enjoined the enforcement of most of the challenged provisions (all except sections 8, 12, 18, and 30).

The companion cases filed by the United States and by a group of private plaintiffs lead by the Hispanic Interest Coalition of Alabama (HICA) challenged these provisions of the immigration law:

• Section 8 – which provides that an unlawfully present alien shall not be permitted to enroll in or attend any public postsecondary education institution in Alabama
• Section 10 – which creates a new state crime for an unlawfully present alien’s failure to complete or carry an alien registration document
• Section 11 – which criminalizes an unauthorized alien’s application for, solicitation of, or performance of work inside the state of Alabama
• Section 12 – which requires officers to determine a lawfully seized individual’s immigration status when the officer has reasonable suspicion that the seized individual is unlawfully present in the United States
• Section 13 – which criminalizes the harboring or transportation of an alien and the act of encouraging an alien to come into Alabama
• Section 16 – which disallows an employer’s state tax deduction for wages and compensation paid to an alien unauthorized to work in the United States
• Section 17 – which counts as a discriminatory practice an employer’s act of firing or failing to hire a U.S. citizen or an alien authorized to work while that employer simultaneously employs or hires an alien unauthorized to work in the country
• Section 18 – which provides that reasonable effort must be made within 48 hours to determine whether a driver not in possession of a drivers’ license is permissibly present in the country
• Section 27 – which prohibits state courts from enforcing a contract to which an unlawfully present alien is a party
• Section 28 – which provides a process for schools to collect data about the immigration status of students enrolled in public schools and requires schools to ascertain the immigration status of students
• Section 30 – which prohibits unlawfully present aliens from entering or attempting to enter into business transactions with the state or a political subdivision thereof

Before these challenged provisions became effective, the United States asked the District Court to enjoin their enforcement on the ground that they are an impermissible attempt to regulate immigration and are, therefore, preempted by federal law. The District Court found that the federal government’s preemption challenges to sections 11(a), 13, 16, and 17 would likely succeed and that preliminary injunction of their enforcement was, therefore, appropriate. However, the District Court did not find a likelihood of success in the preemption challenges to sections 10, 12(a), 18, 27, 28, and 30, and did not enjoin their enforcement.

Also before the provisions became effective, HICA and the other private entities filed suit challenging sections 8, 10, 11(a), 12(a), 13, 18, 27, 28, and 30 based upon federal preemption of immigration regulation; challenging section 28 as violative of the Equal Protection Clause of the U.S. Constitution; and challenging sections 10(e), 11(e), and 13(h) as violative of the Compulsory Process Clause of the U.S. Constitution. The District Court found that the HICA entities’ challenges to sections 8, 10(e), 11(a), 11(e), and 13 would likely succeed on the merits and that a preliminary injunction of their enforcement was, therefore, appropriate. However, the District Court determined that the private entities lacked standing to challenge section 28 on equal protection grounds.

Following the District Court’s orders, the United States, the state of Alabama, and the HICA entities appealed. While the appeals in the two companion cases were under consideration, the Eleventh Circuit enjoined enforcement of sections 10, 27, 28, and 30; thus, only two of the challenged provisions—sections 12 and 28—were enforceable during the pendency of the appeal.

After considering briefs and oral argument, the Eleventh Circuit partially affirmed and partially reversed the preliminary injunction orders of the District Court:

• The Eleventh Circuit affirmed the District Court’s decision not to preliminarily enjoin the enforcement of sections 12(a), 18, and 30 after finding no proof that those provisions were facially invalid.
• The Eleventh Circuit found a likelihood of success as to the federal government’s challenges to sections 10, 11(a), 13(a), 16, 17, and 27, which warranted preliminary injunction of their enforcement.
• The Eleventh Circuit additionally found that at least one of the HICA entities had standing to challenge section 28 on equal protection grounds and, finding a likelihood of success, determined that a preliminary injunction as to section 28 was warranted.
• The Alabama legislature has removed the challenged language of section 8, thereby rendering moot the HICA entities’ challenge to that provision.

Bottom Line: The enforcement of sections 10, 11, 13, 16, 17, 27, and 28 is preliminary enjoined pending a determination on the merits of the various challenges to those sections, but the state may enforce the provisions of sections 12, 18, and 30.

Alabama Supreme Court Decisions

When a trustee must defend against an attack on his management of trust assets, the trustee is entitled to recover litigation expenses.  Regions Bank – ASC Case

Substituting defendant for fictitious party does not relate back where the plaintiff was not ignorant of defendant’s identity when describing fictitious parties in his original complaint. Ex parte Noland – ASC Case

Rule 54(b) certification is inappropriate where the judgment certified involves issues closely intertwined with claims still pending. Highlands of Lay – ASC Case

The Circuit Court lacked jurisdiction to enter judgment, because the plaintiff did not pay filing fee and the court had never approved the plaintiff’s statement of substantial hardship. Brandon Johnson – ASC Case

Eleventh Circuit Decisions

The Crime Victims’ Rights Act does not give victims the right to appeal a criminal sentence. http://www.ca11.uscourts.gov/opinions/ops/201112716.pdf

Question certified to Georgia Supreme Court: is an annuity exempt from bankruptcy estate under Georgia law. http://www.ca11.uscourts.gov/opinions/ops/201113115.cert.pdf

Order as to one of four defendants is not a final judgment; no appellate jurisdiction without a Rule 54(b) certification. http://www.ca11.uscourts.gov/opinions/ops/201112628.ord.pdf

Under Alabama law, the executor of an estate is bound by an arbitration agreement signed by the decedent and must arbitrate a wrongful death claim. http://www.ca11.uscourts.gov/opinions/ops/201110730.pdf

The government timely issued international letters rogatory seeking evidence of criminal conspiracy, thus the district court properly suspended the statute of limitations. http://www.ca11.uscourts.gov/opinions/ops/201015527.pdf