Weekly Case Digests — April 4-8, 2016

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7^th Circuit Court of Appeals

7^th Circuit Court of Appeals

Case Name: United States of America v. Derek Ortiz

Case No.:15-3240

Officials: POSNER, KANNE, and ROVNER, Circuit Judges.

Focus:Sentencing

District Court Judge fails to impose sentence according to remand demand.

“Still another questionable condition provides that “if un‐ employed after the first 60 days of supervision, or … for 60 days after termination or lay‐off from employment,” the defendant must “perform at least 20 hours of community service per week at the direction of the U.S. Probation Service until gainfully employed,” though “the amount of community service shall not exceed 200 hours.” The numbers seem arbitrary. It’s not easy for ex‐cons (especially bank robbers!) to obtain gainful employment; it may often take them more than 60 days, and having to perform 20 hours or more of community service—for the condition requires “at least” 20 hours a week of such service—may eat significantly into job hunting. And one would like to know what “community service” encompasses. Furthermore, the 20‐hour figure is in conflict with the judge’s oral sentence, which specified 15 rather than 20 hours as the minimum amount of time required to be devoted to community service if the defendant is not gainfully employed. Requiring volunteer work may be a good way to keep probationers gainfully occupied so that they do not get into trouble, and it may also help probationers demonstrate their employability and network with potential employers. But it is important for the judge to explain why the number of hours he chose creates a proper balance between the benefits and the burdens of community service.”

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Nikolay Zyapkov v. Loretta E. Lynch

Case No.:15-2063

Officials: MANION, KANNE, and WILLIAMS, Circuit Judges.

Focus: Immigration – Petition for Review

Appellant challenges to denial of permanent resident status without merit.

The IJ denied Zyapkov’s application to adjust his status to permanent resident and also denied relief from removal. The IJ first pointed out the inconsistencies in Zyapkov’s and Gregory’s accounts about where they had lived and whether they had separated. The IJ acknowledged Zyapkov’s assertion that these inconsistencies could be explained by his frequent work‐related absences, but the IJ found that explanation neither “convincing” nor “persuasive.” The IJ opined that Zyapkov had not explained “how he supports his wife and even where he keeps his income from his business” be‐ cause the couple’s joint accounts showed minimal deposits. Based on the evidence, the IJ agreed with USCIS’s finding that Gregory’s marriage to Zyapkov was a sham. And that sham marriage coupled with Zyapkov’s false testimony, the IJ reasoned, meant that Zyapkov was inadmissible under § 1182(a)(6)(C)(i) and therefore ineligible to adjust his status. As an alternative basis for denying relief, the IJ concluded that Zyapkov did not merit a favorable exercise of discretion even if eligible.

Petition Denied

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7^th Circuit Court of Appeals

Case Name: Louis A. Bianchi, et al. v. Thomas K. McQueen, et al

Case No.: 14-1635

Officials: POSNER, EASTERBROOK, and SYKES, Circuit Judges.

Focus: 4^th Amendment Violations – Prosecutorial Immunity

Suit rightfully dismissed against prosecutor and PI firm consistent with absolute prosecutorial immunity and qualified immunity.

“Importantly, the Court in Wallace specifically declined to address whether a malicious-prosecution claim is ever cognizable as a Fourth Amendment violation remediable under § 1983. 549 U.S. at 390 n.2. The plaintiff in Wallace had expressly abandoned that issue, which was left unresolved in the Court’s split decision in Albright v. Oliver, 510 U.S. 266, 270–71 (1994) (plurality opinion). 549 U.S. at 390 n.2; see generally Albright, 510 U.S. at 276–81 (Ginsburg, J., concurring). Although some circuits have recognized such a claim, see Hernandez-Cuevas v. Taylor, 723 F.3d 91, 99 (1st Cir. 2013) (collecting cases), this circuit has not, see, e.g., Welton v. Anderson, 770 F.3d 670, 673–75 (7th Cir. 2014); Bielanski, 550 F.3d at 638; Newsome v. McCabe, 256 F.3d 747, 750–52 (7th Cir. 2001). With the law this unsettled, qualified immunity applies.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Michael Carter v. Stephen Duncan

Case No.: 13-2243

Officials: EASTERBROOK and RIPPLE, Circuit Judges, and REAGAN, District Judge.

Focus: Ineffective Assistance of Counsel

Habeas corpus relief denied for Appellant regarding claim for ineffective assistance of counsel

“McReynolds’s proffered testimony, for the reasons noted by the state court, also ultimately fails to furnish the linchpin of Mr. Carter’s claim. Had the proffer included an unequivocal statement from McReynolds that he had watched the entire scene, that Stone was the only shooter, and that Mr. Carter and Jones were unarmed, we might well conclude, given McReynolds’s disinterested status, that the state court’s conclusion on prejudice was unreasonable. But as the State notes, McReynolds says nothing about Mr. Carter’s activities prior to “scatter[ing].”34 He does not say that he watched Mr. Carter and saw no gun and no shooting; he says only that he “heard several shots ring out from the alleyway,” Stone’s location, and “did not personally observe” any other shooting.35 McReynolds does not specifically say that he saw Stone shoot. The phraseology is notably weak, and all of the potentially relevant factual assertions about the shooting comprise only three sentences, woefully lacking in detail. His further testimony that Mr. Carter and Jones scattered after Stone’s shots to avoid being shot themselves is fairly characterized as add‐ ing somewhat of a gloss on the testimony of essentially every other witness that day, all of whom agree that all three of the defendants fled the scene. The most striking factual claim McReynolds makes in the affidavit is that he saw Gardner draw “an object out from behind his back,” but this fact, while potentially significant to Stone’s self‐defense claims, is irrelevant to Mr. Carter’s mere presence defense.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Sean Roberts et al v. City of Chicago

Case No.: 15-1963

Officials: FLAUM and RIPPLE, Circuit Judges, and PETERSON, District Judge.∗

Focus: ADA Violation – Discrimination

Appellant complaint did not adequately state a claim for relief.

“In their complaint, plaintiffs claim that the City discriminated against them by subjecting them to a battery of medical tests and record requests that prevented them from being hired. They allege that these tests and requests were caused by plaintiffs’ disabilities and that the resulting delay in obtain- ing medical clearance sounded the death knell of their employment prospects. Hill and Roberts concede that the City can require some medical testing but argue that it cannot “structure the hiring process as an obstacle course in which individuals with disabilities are given no reasonable opportunity to demonstrate, in a timely manner that they are qualified to be hired despite their disabilities.” These allegations, however, do not plausibly state that the City discriminated against Hill and Roberts because of their disabilities. Certainly, plaintiffs’ disabilities disadvantaged them in this first-come-first-serve hiring process ordered by the Lewis court because their medical issues delayed their medical clearance. But to prove causation under the ADA, plaintiffs must show that they were not hired because of their disabilities, not because of a delay in medical clearance, even if that delay was caused by their disabilities.”

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Jeff Omann v. Trandy Blue

Case No.: 2014AP2444

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Placement Schedule – Child Support

Trandy Blue, pro se, appeals an order addressing several issues arising after entry of a paternity judgment involving E. O., her child with Jeff Omann. Blue challenges the shared placement schedule established by the circuit court, as well as the determination that E. O. remain in the St. Croix County School District. Blue also contends she is entitled to additional child support from Omann. We reject Blue’s arguments and affirm the order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Silkie L. Nash

Case No.: 2014AP2935

Officials: Curley, P.J., Brennan and Brash, JJ.

Focus: Meritless Appeal

Silkie L. Nash, pro se, appeals a circuit court order that denied his motion for postconviction relief filed pursuant to WIS. STAT § 974.06 (2013-14). The circuit court concluded that Nash’s claims are procedurally barred and substantively meritless. We agree and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. John M. Anthony

Case No.: 2015AP431

Officials: Curley, P.J., Kessler and Brash, JJ.

Focus: Plea Withdrawal

John M. Anthony, pro se, appeals from trial court orders denying his WIS. STAT. § 974.06 (2013-14) motion for postconviction relief and his motion for reconsideration. Anthony presents numerous arguments in support of his claim that he should be allowed to withdraw his no-contest pleas. We reject his arguments and affirm the orders.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jose A. Alicea

Case No.: 2015AP779-CR

Officials: Curley, P.J., Brennan and Brash, JJ.

Focus: Plea Withdrawal

Jose A. Alicea appeals a judgment convicting him of first-degree sexual assault of a child, contact with a child under the age of thirteen. He also appeals an order denying his postconviction motion to withdraw his guilty plea. He argues that he is entitled to withdraw his plea because he was not aware that he would be required to register as a sex offender for life after being convicted. We affirm.

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WI Court of Appeals – District I

Case Name: Alan D. Miron et al, v. MNI, Inc.

Case No.: 2015AP1184

Officials: Kessler, Brennan and Brash, JJ.

Focus: Summary Judgment – Court Error

Alan and Carla Miron appeal an order granting MNI, Inc.’s motion for summary judgment. The Mirons argue that the circuit court erred when it ruled that neither the misrepresentation, concealment, nor fraud exception to Wisconsin’s construction statute of repose, WIS. STAT. § 893.89 (2011-12), were applicable to their claims against MNI. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Charles R. Smith

Case No.: 2015AP1216-CR

Officials: Curley, P.J., Kessler and Brash, JJ.

Focus: Plea Withdrawal

Charles R. Smith appeals from a judgment of conviction for one count of first-degree reckless homicide, contrary to WIS. STAT. § 940.02(1) (2013-14). Smith also appeals from an order that denied his postsentencing motion to withdraw his guilty plea. Smith argues that the trial court erred when it found that his postconviction motion, which alleged that Smith’s lawyer had “promised” him a specific sentence, was insufficient to warrant an evidentiary hearing. We affirm.

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WI Court of Appeals – District III

Case Name: George Dillenberg v. Hobart/Lawrence Police and Fire Commission

Case No.: 2015AP1313

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Termination

George Dillenberg was a police officer with the Hobart/Lawrence Police Department from June 2007 to December 10, 2013, when he was terminated for cause by the Hobart/Lawrence Police and Fire Commission (PFC). Dillenberg challenges his termination by certiorari. We affirm.

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WI Court of Appeals – District II

Case Name: Manitowoc Cranes, Inc. v. Machine Tool Technologies, Inc, et al

Case No.: 2015AP1334

Officials: Reilly, P.J., Gundrum and Hagedorn, JJ.

Focus: Breach of Contract – Summary Judgment

Mazak Optonics Corporation prevailed at summary judgment in a breach-of-contract and promissory-estoppel case Manitowoc Cranes, Inc. filed against Mazak, Machine Tool Technologies, Inc. d/b/a MacTech, and Vector Automation Technologies, Inc. Mac-Tech cross-claimed against Mazak and Vector; Mazak cross-claimed against Mac-Tech. Manitowoc entered into a settlement and Pierringer release with Vector. After the circuit court ruled in favor of Mazak at summary judgment, Mac-Tech and Mazak agreed to dismiss their cross-claims against each other. Manitowoc contends the summary judgment ruling was wrong and appeals from the order dismissing the cross-claims. We conclude the circuit court properly granted Mazak’s motion for summary judgment against Manitowoc and thus properly dismissed the cross-claims. We affirm the order.

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WI Court of Appeals – District IV

Case Name: Bank of New York Mellon  v. Michael J. Harrop, et al

Case No.: 2014AP2200

Officials: Higginbotham, Sherman and Blanchard, JJ.

Focus: Foreclosure

Michael Harrop appeals a foreclosure judgment granted in favor of Bank of New York Mellon, as trustee for the Certificate holders of CWALT, Inc., Alternative Loan Trust 2005-81, Mortgage PassThrough Certificates, Series 2005-81 (“the Bank”). Harrop raises several challenges to the judgment. We reject Harrop’s arguments and affirm the judgment.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Thor Templin

Case No.: 2015AP284-D

Focus: Discipliniary Proceedings

Attorney license suspended for 6 months for filing frivolous motion years after the applicable time limits and failure to comply with court order, among others.

“The referee noted that Attorney Templin is a staff attorney employed at a nonprofit law firm directing services for economically disadvantaged clients who have few or no lawyer retention options. The referee also found a lack of remorse or acceptance of responsibility for Attorney Templin’s actions, as well as a significant number of violations occurring in a relatively short period of time since he was licensed to practice law. The referee also expressed concern about Attorney Templin’s understanding of his violation of supreme court rules, the seriousness of the violations, the inappropriateness of his conduct, and the effect of his violations of the rules. The referee noted that, while the disciplinary proceeding was pending, Attorney Templin attempted to voluntarily resign from the State Bar. His resignation request was held in abeyance pending the outcome of this disciplinary proceeding. The referee also commented that she was concerned about Attorney Templin’s understanding and attitude towards meeting the professional standards imposed on a member of the bar, and said his “conduct during these proceedings raises substantial concerns about [his] understanding of and attitude toward court proceedings and toward future clients’ needs and expectations.””

Licensed suspended for 6 months

Concur: Abrahamson

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Leonard G. Adent

Case No.: 2015AP2032

Focus: Disciplinary Proceedings

Lawyer receives public reprimand for trust account issues and OWI 2^nd conviction.

“With respect to mitigating factors, the OLR noted that Attorney Adent had an absence of dishonest or selfish motive and that he suffered from personal or emotional problems which he blamed for the issues with his bank accounts. The OLR also noted that Attorney Adent was the subject of penalties, including jail time, driver license revocation, and a fine, for the third offense OWI. Finally, the OLR said that Attorney Adent fully cooperated with the investigation and expressed remorse for his actions.”

Public Reprimand Issued

Dissent: Abrahamson, Bradley

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WI Supreme Court

Case Name: Patti J. Roberts  et al v. T.H.E. Insurance Company, et al.

Case No.: 2014AP1508

Focus: Summary Judgment – Recreational Immunity

Recreational Immunity statute did not apply where appellant injured while utilizing hot-air balloon.

“This case is different from prior cases, however, because Roberts did not bring claims against the event producer or owner of the property. Green Valley Enterprises, not Sundog, produced the charity event where Roberts was injured. The Conservationists, not Sundog, was the owner of the property where the event took place. None of the prior cases interpreting Wis. Stat. § 895.52 has granted immunity to a third party not responsible for opening up the land to the public.”

CONCURRED: ZIEGLER, J. concurs.

CONCURRED/DISSENTED: PROSSER, J., joined by ROGGENSACK, C.J. concur and dissent. DISSENTED: BRADLEY, R.G., J., joined by PROSSER, J. (except footnote 4) dissent.

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United States Supreme Court Digests 

US Supreme Court

Case Name: Luis v. United States

Case No: 14-419

Focus:

Pretrial restraint of legitimate assets needed to retain counsel violates 6^th amendment

“The Sixth Amendment right to counsel grants a defendant “a fair opportunity to secure counsel of his own choice,” Powell v. Alabama, 287 U. S. 45, 53, that he “can afford to hire,” Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 624. This Court has consistently referred to the right to counsel of choice as “fundamental”. While the Government does not deny Luis’ fundamental right to be represented by a qualified attorney whom she chooses and can afford to hire, it would nonetheless undermine the value of that right by taking from Luis the ability to use funds she needs to pay for her chosen attorney. The Government attempts to justify this consequence by pointing out that there are important interests on the other side of the legal equation. It wishes to guarantee that funds will be available later to help pay for statutory penalties and restitution, for example. The Government further argues that two previous cases from this Court, Caplin & Drysdale, supra, at 619, and United States v. Monsanto, 491 U. S. 600, 615, support the issuance of a restraining order in this case. However, the nature of the assets at issue here differs from the assets at issue in those earlier cases. And that distinction makes a difference.”

Vacated and Remanded

Concurring: THOMAS

Dissenting: KENNEDY, ALITO

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