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Weekly Case Digests — Aug. 11-15, 2014

By: WISCONSIN LAW JOURNAL STAFF//August 15, 2014//

Weekly Case Digests — Aug. 11-15, 2014

By: WISCONSIN LAW JOURNAL STAFF//August 15, 2014//

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Wisconsin Law Journal’s Case Digests — Aug. 11-15, 2014

CIVIL OPINIONS

U.S. Court of Appeals for the 7th Circuit

Civil
Public Health — disability benefits

Where the ALJ failed to build a logical bridge between substantial evidence and his conclusion that a disability claimant with migraines was capable of a limited range of sedentary work, the denial of benefits is reversed.

“Apart from Chenery concerns, the doctors’ opinions cannot provide the needed logical bridge. Dr. Kim did not actually specify how Moon’s migraines relate to the residual functional capacity she found. She did not address the possibility that a migraine could keep Moon at home in bed, apparently understanding Moon’s ‘history of frequent migraines’ to have implications only for her ability to lift, stoop, and stand. Dr. Francis’s report provides even less support for the government’s position. He noted: ‘There is not enough information [in the medical records] on the frequency of [Moon’s] migraines to determine how much these contribute to her overall impairment.’ Unlike Dr. Kim and Dr. Francis (who, remember, never even met Moon), the ALJ had the opportunity to hear Moon’s own account about how her migraines limit her activities, and as explained above, his apparent disbelief of her testimony is not justified in his decision.”

Reversed and Remanded.

13-3636 Moon v. Colvin

Appeal from the United States District Court for the Northern District of Illinois, Cox, Mag. J., Hamilton, J.

CIVIL COMMITMENT

Wisconsin Court of Appeals

Civil
Civil Commitment – extension involuntary meds

Laura B. appeals from orders of the circuit court extending her commitment and for involuntary medication and treatment. Laura argues that, with regard to the extension of commitment, “there was no evidence that she would become dangerous if treatment were withdrawn.” We conclude that the County established that Laura would be a proper subject for commitment if treatment were withdrawn. We affirm. This opinion will not be published.

2014AP1011-FT In the matter of the mental commitment and order for involuntary medication and treatment of Laura B.

Dist II, Ozaukee County, Voiland, J., Neubauer, P.J.

Attorneys: For Appellant: Moses, Faun M., Madison; For Respondent: Gorden, Rhonda K., Port Washington

CIVIL PROCEDURE

U.S. Court of Appeals for the 7th Circuit

Civil
Civil Procedure — equitable tolling

Where the district court gave only a cursory explanation for rejecting a plaintiff’s argument that the statute of limitations should be tolled, the dismissal is reversed.

“The district judge’s explanation for refusing to allow the late filing of the suit was cursory. He did not suggest (nor does the government) that the government had been prejudiced by the plaintiff’s delay in suing. And upon being re-leased from prison the plaintiff was likely to have found it more rather than, as the district judge said, less difficult to advise the court of changes of address. As a prisoner the plaintiff could ask a fellow prisoner or a member of the prison staff to mail a letter for him; upon release he was a blind ex-con struggling to keep his head above water, and the struggle must have intensified when he was expelled, allegedly without notice and for reasons unexplained in the papers in this case, from the halfway house that was his first home after he completed his prison sentence. There is no indication in the record that he had a family to help him cope with the difficult situation in which he found himself.”

Reversed and Remanded.

14-1428 Hill v. U.S.

Appeal from the United States District Court for the Southern District of Illinois, Gilbert, J., Posner, J.

U.S. Court of Appeals for the 7th Circuit

Civil
Civil Procedure — frivolous actions — sanctions

Where the defendant frivolously removed a garden-variety foreclosure action to federal court, sanctions were proper, and the attorney is ordered to show cause why she shouldn’t be sanctioned as well.

“On the merits of Spencer’s appeal, Nora argues that it was reasonable to remove the case under 28 U.S.C. § 1349 because Freddie Mac was the ‘real party in interest,’ so the district court should not have awarded fees and costs. This argument is baseless. As the court correctly concluded, Freddie Mac is not a party, so § 1349 — which refers to actions ‘by or against’ a congressionally created corporation — does not create federal jurisdiction. Nora nonetheless insists that because Freddie Mac purchased the mortgage, it is the ‘real party in interest’ and PNC’s suing in its own name was fraudulent. She offers no legal authority supporting this proposition, which is wrong for several reasons. First, since PNC is the holder of the mortgage note, PNC is entitled to enforce it. See WIS. STAT. § 403.301; PNC Bank, N.A. v. Bierbrauer, 827 N.W.2d 124, 126–27 (Wis. Ct. App. 2012). Second, the Supreme Court has rejected the theory that the federal courts, when assessing their jurisdiction, should look beyond the pleadings to discover unnamed real parties in interest. See Lincoln Property Co. v. Roche, 546 U.S. 81, 92–93 (2005). Third, Nora effectively conceded that Freddie Mac could not have been a proper party when she acknowledged in the notice of removal that ‘Freddie Mac purchased the purported loan obligation [but] neither owns nor holds the note and mortgage.’ Because there was no objectively reasonable basis for federal jurisdiction or for removal, the district court did not abuse its discretion in awarding fees and costs to PNC. See 28 U.S.C. § 1447(c); Martin v. Franklin Capital Corp., 546 U.S. 132, 139–41 (2005); Tenner v. Zurek, 168 F.3d 328, 329–30 (7th Cir. 1999).”

Affirmed.

13-2676 PNC Bank, N.A. v. Spencer

Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Per Curiam.

U.S. Court of Appeals for the 7th Circuit

Civil
Civil Procedure — jury instructions

Where the defendant suffered no prejudice from the plaintiff’s tardy request to assert the proper legal standard, the district court erred in permitting the case to be tried on an incorrect standard.

“Lastly, we note that we cannot find anything in the record to suggest that King or her counsel ‘acted willfully, deliberately, [or] in bad faith’ in waiting until late in the litigation to request an amendment of their legal theory. Cf. Salata, 2014 WL 3045772, at *3. The district court did not make any such finding, nor did it conclude that the delay was for a strategic advantage. Indeed, it is difficult to see why this shift would have been withheld until the eleventh hour as a strategic move to throw the litigation into disarray: the Fourth Amendment standard was a more favorable standard for the Plaintiff-Appellant, and she stood to benefit from presenting the correct legal theory earlier in the litigation. At worst, King’s attorneys may have been negligent in failing to identify the correct legal theory sooner, but they are not guilty of gamesmanship or a last-minute ambush. A district court that detects chicanery of this nature may be justified in denying a change in legal theory — but that was not the case here.”

Reversed in part, and Affirmed in part.

13-2379 King v. Kramer

Appeal from the United States District Court for the Western District of Wisconsin, Conley, J., Tinder, J.

U.S. Court of Appeals for the 7th Circuit

Civil
Civil Procedure – jurisdiction — remand

Where a non-final order permits amendment of the pleadings, and the subsequent amendment results in a final order remanding the case to state court for lack of diversity jurisdiction, the court of appeals lacks jurisdiction.

“Instead, the railroad argues that we should review only the court’s contemporaneous decision to allow Lindner to amend his complaint and join Scott and Griffin as defendants. The bar against reviewing remand orders does not prevent us from reviewing separate, appealable rulings that happen to be contained in the same document as the remand order. See City of Waco, Tex. v. U.S. Fidelity & Guar. Co., 293 U.S. 140, 143 (1934); Good v. Voest-Alpine Indus., 398 F.3d 918, 921–23 (7th Cir. 2005). For example, if a district court were to dismiss the one claim in the case supporting federal jurisdiction and then in the same order remand the remaining cross-claims, we would have jurisdiction to review the dismissal order even though we couldn’t review the decision to remand. Waco, 293 U.S. at 143. Since the remand itself couldn’t be reviewed, reversing the dismissal would simply send the case back to state court with the original claim still intact. See id.”

“But this doctrine doesn’t help Union Pacific because there is no appealable order here separate from the decision to remand. See Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 236 (2007) (‘Waco does not permit an appeal when there is no order separate from the unreviewable remand order.’); Good, 398 F.3d at 925 (‘Waco itself made clear that the order for which appellate review is sought must independently be reviewable.’). Our appellate jurisdiction extends to ‘final orders,’ 28 U.S.C. § 1291, but an order allowing the plaintiff to amend the complaint isn’t a final order because it doesn’t terminate the dispute; it doesn’t even grant or deny relief on any of the plaintiff’s claims. See Wingerter v. Chester Quarry Co., 185 F.3d 657, 662 (7th Cir. 1998) (holding that an order allowing amendment of the complaint was not a final order).”

Dismissed.

13-1422 Lindner v. Union Pacific Railroad Co.

Appeal from the United States District Court for the Northern District of Illinois, Der-Yeghiayan, J., Sykes, J.

CONSTITUTIONAL LAW

U.S. Court of Appeals for the 7th Circuit

Civil
Constitutional Law — equal protection — juror selection

It was not an abuse of discretion for the district court not to increase the size of the jury pool in an attempt to increase the likelihood of a black juror being empanelled.

“‘The process of empaneling a jury is firmly entrusted to the sound discretion of the trial judge and will not be disturbed absent an abuse of this discretion.’ United States v. Beasley, 48 F.3d 262, 266 (7th Cir. 1995) (quoting United States v. Rubin, 37 F.3d 49, 54 (2d Cir. 1994)). There was no abuse of discretion here. But even quoting the standard of review is getting ahead of ourselves. Marshall has suggested no remotely cognizable legal harm to support this argument. It is established that a litigant has no right to a petit jury which contains members of his race or which fairly represents a cross-section of the community. See Holland v. Illinois, 493 U.S. 474, 477–78 (1990); United States v. Hatchett, 31 F.3d 1411, 1426 (7th Cir. 1994). So how could the district court have erred by failing to ensure that Marshall got one? Marshall did, of course, have a right to a jury venire composed of a fair cross-section of the community, Hatchett, 31 F.3d at 1426, but he is not challenging the composition of the venire. He also had a right to see that no state actor intentionally excluded any person from the petit jury on account of their race, Batson v. Kentucky, 476 U.S. 79 (1986), but, again, Marshall is not claiming that any state actor acted in such a way. In short, it is hard to see the legal basis for Marshall’s motion, let alone any reason why the district court’s failure to grant it might amount to an abuse of discretion.”

Affirmed.

13-2771 Marshall v. City of Chicago

Appeal from the United States District Court for the Northern District of Illinois, Durkin, J., Kanne, J.

U.S. Court of Appeals for the 7th Circuit

Civil
Constitutional Law — substantive due process — windmills

Where a windmill developer failed to take advantage of state law remedies when it was unable to get required building permits, its substantive due process rights were not violated.

“Confusingly, CEnergy contends elsewhere in its appellate brief that the decision whether to issue the permits was not ‘subject to legislative or political whims.’ Yet the company chose to ask a legislative body, the Town Board, to vote on the permit requests rather than proceeding under the zoning ordinance or arguing in state court for mandamus relief on the basis that the Board’s consideration of the permit requests was actually an administrative function rather than a legislative one. CEnergy is thus like the unsuccessful plain-tiff in River Park, which alleged in support of its due process claim that the city council was obliged by state law to approve a subdivision plan but intentionally delayed approval until the subdivision project was no longer feasible. CEnergy also ‘went along with the political process until it was too late’ for another course of action and then ‘lost the political fight.’ 23 F.3d at 167. Now CEnergy seeks a judgment in federal court that would cost each resident of Glenmore roughly $6000. The company, however, must live with its strategic choices. No do-over is available through federal litigation. Id.”

Affirmed.

13-2633 CEnergy-Glenmore Wind Farm #1 LLC v. Town of Glenmore

Appeal from the United States District Court for the Eastern District of Wisconsin, Griesbach, J., Hamilton, J.

CONTRACTS

Wisconsin Court of Appeals

Civil
Contracts — legal services

Where an attorney withdrew from representation with his clients’ permission, he is entitled only to quantum meruit recovery for the value of the services provided before withdrawal, in a dispute with his former partner over fees.

“We reject Winston’s assertion that he did not withdraw from representing the parties’ joint clients. Winston was financially unable to continue representing the clients and he jointly recommended that all clients choose Guelzow to continue their cases. Winston concedes the clients did not breach the retainer agreements. Accordingly, the circuit court reasonably concluded Winston withdrew from representation.”

“Winston also argues the circuit court erred by finding Guelzow did not breach the parties’ operating agreement. Winston contends Guelzow breached the agreement to evenly split all contingency fees. We cannot agree. As the circuit court found, the parties’ agreement did not address what would happen upon dissolution of the combined firm. Further, the agreement required Winston to advance costs and to work on the cases. Once Winston stopped performing under the contract, Guelzow had no contractual obligation to split contingency fees.”

Affirmed.

Recommended for publication in the official reports.

2013AP2764 Winston v. Guelzow

Dist. III, Eau Claire County, Anderson, J., Hoover, J.

Attorneys: For Appellant: Johnson, Terry E., Milwaukee; Fetherston, Kevin Michael, Milwaukee; For Respondent: Richter, Ward I., Madison; Sullivan, Sheila M., Madison

IMMIGRATION

U.S. Court of Appeals for the 7th Circuit

Civil
Immigration – Judicial review

The jurisdiction to review questions of law referred to in 8 U.S.C. 1252(a)(2)(D) does not extend to mixed questions of fact and law.

“This court’s position has been a strict one. We have adhered for years to the rule that § 1252(a)(2)(B) excludes from our jurisdiction challenges to an IJ’s application of the law to the facts of a case when the grounds for relief sought are discretionary, and that in such a case the subpart (B) exclusion is unaffected by § 1252(a)(2)(D). Cevilla, 446 F.3d at 661. We have understood the review of the application of law to facts as something different from review of so-called ‘pure’ questions of law. Even though Cevilla relied heavily on the Second Circuit’s now-vacated initial opinion in Chen for its reasoning, we have reconsidered and reaffirmed our position on this point. See Viracacha v. Mukasey, 518 F.3d 511, 515–16 (7th Cir. 2008). We thus limit our review to constitutional claims and questions of statutory construction. See id.; Cuellar Lopez v. Gonzales, 427 F.3d 492, 493 (7th Cir. 2005) (explaining that interpretation of term ‘continuous physical presence’ can be reviewed because it presents a legal question of statutory construction). Under this court’s understanding of the statutory scheme, Adame’s challenge to the IJ’s demand for additional evidence falls outside of our authority. The conflict in the circuits on this point is a serious one, but it has stood for some time. Indeed, the government candidly informed us at oral argument that it would not press the same jurisdictional defense in other circuits.”

Dismissed.

13-2405 Adame v. Holder

On Petition for Review of a Final Order of the Board of Immigration Appeals, Wood, J.

INTELLECTUAL PROPERTY

U.S. Court of Appeals for the 7th Circuit

Civil
Intellectual Property — trademark infringement — reverse confusion

The use of the words “clean slate” in a movie did not violate the trademark rights of the owner of a desktop management program called “Clean Slate.”

“In fact, the only factor to which Fortres Grand’s allegations lend any strength is the similarity of the marks — both marks are merely ‘clean slate’ or ‘the clean slate.’ But juxtaposed against the weakness of all the other factors, this similarity is not enough. Trademark law protects the source-denoting function of words used in conjunction with goods and services in the marketplace, not the words themselves. Anti-Monopoly, Inc. v. Gen. Mills Fun Grp., 611 F.2d 296, 301 (9th Cir. 1979) (‘It is the source-denoting function which trademark laws protect, and nothing more.’). Assuming all Fortres Grand’s other allegations are true, its reverse confusion allegation—that consumers may mistakenly think Warner Bros. is the source of Fortres Grand’s software — is still ‘too implausible to support costly litigation.’ Eastland Music, 707 F.3d at 871. Accordingly, we need not — and do not — reach Warner Bros.’ argument that its descriptive use of the words ‘clean slate’ in the dialogue of its movie is shielded by the First Amendment. Eastland Music, 707 F.3d at 871 (‘It is unnecessary to consider possible constitutional defenses to trademark enforcement, … [when the] complaint fails at the threshold.’).”

Affirmed.

13-2337 Fortres Grand Corp. v. Warner Bros. Entertainment, Inc.

Appeal from the United States District Court for the Northern District of Indiana, Simon, J., Manion, J.

JUVENILES

Wisconsin Court of Appeals

Civil
Juveniles — termination of parental rights — abandonment

Barret W.S. appeals the circuit court’s order terminating his parental rights to Ella M.S. He argues that the circuit court erred by granting summary judgment against him on the “fact-intensive” grounds for termination in this case, allowing Ella’s guardians to participate as a party, and selectively applying the rules of evidence during the dispositional phase. I reject Barret’s arguments, and affirm. This opinion will not be published.

2014AP1155 In re the termination of parental rights to Ella M.S.: Green County Department of Human Services v. Barret W.S. et al.

Dist IV, Green County, Vale, J., Lundsten, J.

Attorneys: For Appellant: Krahn, Ellen J., Madison; For Respondent: MacLennan, Angela Marie, Monroe

LABOR AND EMPLOYMENT

U.S. Court of Appeals for the 7th Circuit

Civil
Labor — arbitration

An employee’s termination is subject to arbitration, even if prior decisions resulting in termination are not.

“In summary, the Union’s grievance falls within the scope of the arbitration clause on its face. As a result, we must compel arbitration ‘unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’ United Steel, 531 F.3d at 535. We cannot say so with positive assurance in this case, either on the basis of explicit exclusion, forceful evidence of intent, or any of the other possibilities offered by NextEra. This grievance must be sent to arbitration. There, NextEra may raise many of the same defenses it used in this lawsuit, including its theory that the arbitrator may not review or overturn the unescorted access revocation undergirding Hofstra’s discharge. It is not for us to determine how successful those arguments will prove to be on the merits, but we can say with certainty that they do nothing to defeat the plain language of the White Book within the context of this case.”

Reversed.

13-3851 International Brotherhood of Electrical Workers Local 2150 v. NextEra Energy Point Beach, LLC

Appeal from the United States District Court for the Eastern District of Wisconsin, Clevert, J., Kanne, J.

U.S. Court of Appeals for the 7th Circuit

Civil
Employment — FMLA

Where an employee was being considered for a promotion as part of a reorganization, but was demoted instead, while she was on FMLA leave, summary judgment was improperly granted to the employer on the employee’s FMLA retaliation claim.

“Viewed through the lens of summary judgment, a reasonable jury could find that Hospira retaliated against Malin for requesting FMLA leave when it did not promote and effectively demoted her as part of the 2006 reorganization. Based on this evidence, a jury could easily find that the reorganization had not been finalized before Malin requested FMLA leave on June 19. Several higher-level positions appear to have still been open as of the June 14 meeting, and Malin was actually listed as a candidate for one of them. Anderson was aware that Malin requested FMLA leave and asked Bochek whether her request would affect his plans in any way. When Malin returned, she found that she had not only failed to receive a promotion as part of the reorganization but had in fact been demoted. This evidence of a causal connection between Malin’s request for FMLA leave and Hospira’s allegedly retaliatory employment action is not conclusive, of course, but it certainly suffices to withstand summary judgment. See Pagel, 695 F.3d at 631 (reversing summary judgment for employer on FMLA retaliation claim; employee can establish causation through ‘a convincing mosaic of circumstantial evidence [that] may include suspicious timing and ambiguous statements from which retaliatory intent can be drawn’).”

Reversed and Remanded.

13-2433 Malin v. Hospira Inc.

Appeal from the United States District Court for the Northern District of Illinois, Lefkow, J., Hamilton, J.

PROFESSIONAL RESPONSIBILITY

Wisconsin Supreme Court

Civil
Professional Responsibility — reinstatement

Where revoked attorney John J. Balistrieri breached a fiduciary duty to a person with whom he was doing business, he failed to show requisite moral fitness for reinstatement of his law license.

“We do not think this matter should be disregarded so lightly. The circuit court specifically found, and the court of appeals affirmed, that Attorney Balistrieri and his brother had a fiduciary duty to Alioto because of the inequality of sophistication in business matters, the fact that Alioto had been a client of both Balistrieri brothers when they had been practicing lawyers, and the fact that she had continued to rely on Attorney Balistrieri’s business advice and support after he was no longer practicing law. The circuit court further found that Attorney Balistrieri had violated this fiduciary duty and had obtained the option contract by intentional misrepresentation. The court of appeals agreed that, in light of Alioto’s statements to Attorney Balistrieri that she would be willing to give him and his brother a right of first refusal, his failure to disclose to Alioto that the agreement actually gave them an option to purchase the Jackson Street property for a specific price to be exercised at their sole discretion constituted an actionable failure to speak when disclosure was required and “fulfill[ed] the elements of misrepresentation.” In essence, the courts in the Alioto litigation concluded that Attorney Balistrieri took advantage of his superior knowledge of business and the law to obtain an agreement from an older relative that would have benefitted him and his brother financially and then sued her to enforce that agreement. There is no basis to attack and relitigate those conclusions in this proceeding.”

“We conclude that engaging in misrepresentation in order to take advantage of a less sophisticated person, especially one with whom there is a fiduciary relationship, does not show a moral character of the type needed to practice law in this state, SCR 22.31(1)(a), does not constitute conduct that is exemplary and above reproach, SCR 22.29(4)(e), and does not demonstrate that Attorney Balistrieri has a proper attitude toward the standards that are imposed upon members of the bar and will act in conformity with those standards, SCR 22.29(4)(f). Such conduct also does not befit a person who ‘can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence.’ SCR 22.29(4)(g).”

1984AP970-D OLR v. Balestrieri

Per Curiam.

Attorneys: For Complainant: Vogel, Denis R., Madison; Weigel, William J., Madison; For Respondent: Balistrieri, John J., Milwaukee; Johnson, Terry E., Milwaukee

CRIMINAL OPINIONS

U.S. Court of Appeals for the 7th Circuit

Criminal
Habeas Corpus — ineffective assistance

Where a state prisoner’s attorney failed to interview or call a witness who would have contradicted the state’s evidence, the state courts unreasonably concluded he did not receive ineffective assistance of counsel.

“We noted in our earlier opinion that if Taylor’s affidavit were taken at face value, in addition to suggesting counsel’s performance was deficient, there is a reasonable probability that the result of the trial would have been different, and thus Mosley was prejudiced by counsel’s failure to call her. Mosley, 689 F.3d at 851–52. The truth of her affidavit now has come to bear. Taylor’s testimony did not entirely track Coward’s — Taylor testified that Mosley was in her apartment 45 minutes before the fire, whereas Coward testified that Mosley was in the schoolyard the entire evening; Coward said she was with Mosley and other adult females, but Taylor recalled seeing no adult females — but it did match her affidavit. And the state judge found Coward less believable than Fernando. The defense case needed more evidence to support its lone witness. We do not know how Taylor would have held up on the stand. But there is at least a reasonable probability that had she testified, the trial judge would have accepted her testimony, which bolstered Coward’s words on the critical issue of Mosley’s location at the time the fire started and further discredited Fernando’s fantastical account, thereby changing the verdict. Counsel’s failure to interview Taylor, however, squelched that opportunity and doomed the defense case. We conclude that Mosley was prejudiced by his counsel’s unreasonable representation.”

Affirmed.

13-2515 Mosley v. Butler

Appeal from the United States District Court for the Northern District of Illinois, Gottschall, J., Rovner, J.

CRIMINAL PROCEDURE

Wisconsin Court of Appeals

Criminal
Criminal Procedure — postconviction relief — ineffective assistance of counsel — substitute counsel

Rory Kuenzi appeals a judgment of conviction and an order denying postconviction relief. Kuenzi contends that he was denied his Sixth Amendment right to the counsel of his choice when the circuit court denied Kuenzi’s motion to substitute retained counsel for appointed counsel. Kuenzi also contends that his appointed counsel was ineffective by failing to argue that Kuenzi had a Sixth Amendment right to counsel of his choice and by failing to stipulate, before trial, that Kuenzi had a prior conviction for operating a motor vehicle under the influence of an intoxicant. Judgment and order affirmed in part; reversed in part and cause remanded for further proceedings. This opinion will not be published.

2012AP1909-CR State v. Kuenzi

Dist IV, Waupaca County, Kirk, J., Per Curiam

Attorneys: For Appellant: Wood, Tracey A., Madison; For Respondent: Fassbender, James H., Waupaca; Lloyd, Katherine Desmond, Madison

U.S. Court of Appeals for the 7th Circuit

Criminal
Criminal Procedure — appeal

A motion to reconsider the sentence does not extend the time for filing a notice of appeal.

“This case is governed by statutes and the federal rules of procedure, not any common-law practice. Townsend cites no statute permitting this sort of reconsideration, so under the plain text of § 3582(c), the court was authorized to proceed only within the constraints of Rule 35. And according to Rule 4(b)(5) of the Rules of Appellate Procedure, proceedings under Rule 35 do not suspend the time for filing a notice of appeal. See United States v. Dotz, 455 F.3d 644, 648 (6th Cir. 2006) (holding that motions for reconsideration of a sentence, ‘regardless of creative characterization,’ do not suspend the time for filing an appeal because ‘there is simply no such thing as a “motion to reconsider” an otherwise final sentence’). Thus, Townsend’s motion did not affect the time limit for filing a notice of appeal. Townsend’s notice was eight days late. Because the government has raised the timeliness issue, this appeal must be dismissed as untimely.”

Dismissed.

13-2677 U.S. v. Townsend

Appeal from the United States District Court for the Northern District of Illinois, Chang, J., Sykes, J.

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance

Merrill D. Williams appeals from a corrected judgment of conviction entered after a jury found him guilty of two counts of armed robbery as a party to the crimes. He also appeals the order denying his postconviction motion based on claims of ineffective assistance of trial counsel. We affirm. This opinion will not be published.

2013AP1443-CR State v. Williams

Dist I, Milwaukee County, Wagner, J., Per Curiam

Attorneys: For Appellant: Tobin, L. Michael, Madison; For Respondent: Loebel, Karen A., Milwaukee; Wren, Christopher G., Madison

EVIDENCE

Wisconsin Court of Appeals

Criminal
Evidence — postconviction relief — victim’s mental health records — materiality

Andrew Obriecht appeals a judgment of conviction and an order denying his postconviction motion for an in camera inspection of the victim’s mental health records. Affirmed. This opinion will not be published.

2014AP445-CR State v. Obriecht

Dist IV, Dane County, Ehlke, J., Sherman, J.

Attorneys: For Appellant: Buffum, Dylan John Cyrus, Madison; For Respondent: Weber, Gregory M., Madison; Kaiser, Robert J., Jr., Madison

OWI

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — probable cause

Kent W. Hubbard appeals from a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant or other drug as a second offense. Hubbard argues that the results of his nonconsensual and warrantless blood test should have been suppressed by the circuit court as police had neither probable cause to arrest him nor exigent circumstances to take his blood without a warrant. We affirm as police had probable cause to arrest, and exigent circumstances justified Hubbard’s blood draw based on a reasonable suspicion that he was operating his vehicle with a mixture of alcohol and controlled substances in his system. This opinion will not be published.

2014AP738-CR State v. Hubbard

Dist II, Walworth County, Carlson, J., Reilly, J.

Attorneys: For Appellant: Jurowski, Nathan Michael, South Milwaukee; For Respondent: Weber, Gregory M., Madison; Rea, Haley, Elkhorn

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — plea withdrawal — ineffective assistance

Anthony Dewayne Lewis entered a guilty plea to first-degree reckless homicide. He seeks to withdraw his plea based on claims that his counsel was ineffective and the plea colloquy defective. We affirm the judgment of conviction and the order denying his motion for postconviction relief. This opinion will not be published.

2013AP2306-CR State v. Lewis

Dist II, Racine County, Constantine, J., Per Curiam

Attorneys: For Appellant: Lee, Esther Cohen, Milwaukee; For Respondent: Chiapete, W. Richard, Racine; Winter, Tiffany M., Madison

SEARCH AND SEIZURE

U.S. Court of Appeals for the 7th Circuit

Criminal
Search and Seizure — reasonable expectation of privacy

The driver of a rental car had a reasonable expectation of privacy, even though he was transporting cocaine, did not have a valid driver’s license, and left his state of residence in violation of his parole rules.

“At its core, the government’s argument conflates Walton’s alleged illegal behavior with his expectation of privacy. Obviously, one should not rent or drive a car with a suspended license, violate parole, or transport seven kilograms of cocaine. But if the Fourth Amendment suppression rule means anything, it must require that the police have a reasonable basis for searching someone other than that — as it turns out — the search uncovered illegal activity. That protection is compromised if Walton loses his standing even to challenge a car search simply because of alleged unlawful conduct that has nothing to do with his immediate possessory interest in the vehicle.”

Reversed and Remanded.

14-1177 U.S. v. Walton

Appeal from the United States District Court for the Southern District of Illinois, Reagan, J., Tinder, J.

SENTENCING

U.S. Court of Appeals for the 7th Circuit

Criminal
Sentencing — identity theft

In sentencing a defendant for aggravated identity theft, it was erroneous double-counting to apply a two-level enhancement for fraudulent use of a foreign passport.

“In short, the point of Application Note 2 is to avoid counting the same offense conduct twice for purposes of sentence enhancement when a conviction for aggravated identity theft is in the mix. The mandatory two-year consecutive sentence under § 1028A already accounts for conduct involving misuse of a means of identification, so the Sentencing Commission instructs judges not to apply Chapter Two enhancements to the predicate offense for the same offense conduct. Because a passport is a means of identification, Application Note 2 to § 2B1.6 precludes application of the two-level enhancement for Zheng’s fraudulent use of a foreign passport.”

Vacated and Remanded.

12-2739 U.S. v. Zheng

Appeal from the United States District Court for the Northern District of Illinois, Dow, J., Sykes, J.

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