Weekly Case Digests — Aug. 29 – Sept. 2, 2016

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. City of Chicago

Case No.: 15-3305

Officials: WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges.

Focus: Federal Funding – False Claims Act

Appellant fails to properly allege circumstances of purported fraud in False Claim Act action.

“Note that we are not saying that plaintiffs in Hanna’s position must list the City’s promises with any more particularity than that with which the City made them. Unlike the Ninth, Sixth, and Second Circuits, we have never demanded that a plaintiff explain in her complaint why the claim was false. See Cooper v. Pickett, 137 F.3d 616, 625 (9th Cir. 1997); Frank v. Dana Corp., 547 F.3d 564, 570 (6th Cir. 2008); Rombach v. Chang, 355 F.3d 164, 170 (2d Cir. 2004). Although we mentioned in U.S. ex rel. Garst v. Lockheed-Martin Corp. that the district court instructed the plaintiff to state why the claims were fraudulent, our opinion does not hold that it was necessary to do so under Rule 9(b). See 328 F.3d 374, 376 (7th Cir. 2003). Similarly, Gensler v. Strabala, describes the Rule 9(b) standard somewhat informally as “what [the defendant] said and why it is false.” 764 F.3d 735, 737 (7th Cir. 2014). But neither of these cases marked a break with past precedent. Gross is inapposite; it dealt with whether the plaintiff had sufficiently alleged that the defendant’s allegedly false statement was meant to “coax a payment of money from the government.” 415 F.3d at 604. “

Affirmed

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7^th Circuit Court of Appeals

Case Name: Michael Armstrong v. Ben Louden, et al

Case No.: 15-1844

Officials: POSNER, EASTERBROOK, and SYKES, Circuit Judges

Focus: Timely Appeal – Motion to Reopen

Appellant fails to timely file appeal and to reopen his time to appeal.

“And there is a further problem. Although the district judge and the litigants have discussed Armstrong’s initial post-judgment motion as if it were one under Rule 60(b), that is not the right rule. Appellate Rule 4(a)(6) governs what happens when a litigant does not receive timely notice of a judgment’s entry. Rule 4(a)(6)(B) permits a district court to reopen the time to appeal, but only if the motion is filed within 180 days of the judgment, or 14 days of actual notice, whichever is earlier. Armstrong learned of the judgment within 180 days of its entry, but he waited some three months to ask the district court for relief (and that request arrived about eight months after the judgment’s entry). So his request was late under both parts of Rule 4(a)(6)(B), and the district court lacked authority to reopen the time for appeal. Treating Armstrong’s January 2015 motion as under Rule 4(a)(6)(B) would mean that the March 2015 submission was the first genuine Rule 60(b) motion, but that would not matter. Armstrong missed deadlines that a court is forbidden to extend, see Fed. R. App. P. 26(b)(1); Fed. R. Civ. P. 6(b)(2), so the characterization of the papers that Armstrong filed in March 2015 is irrelevant.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Jimmie Darrell Poe, Sr.  v. Leann LaRiva

Case No.: 14-3513

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

Focus: Challenge to Conviction

Appellant petitions for writ of habeas corpus under wrong statute.

“On a final note, Poe makes various attempts to improperly shoehorn his Richardson claim into his § 2241 petition, which relied on Alleyne. His argument essentially runs as follows: Richardson has been applied retroactively, and because there exists a “nexus” between Alleyne and Richardson, Richardson’s retroactivity should allow Poe’s Alleyne claims to proceed un‐ der § 2241. (Appellant Br. 13–14.) Poe’s argument makes no sense. In asserting such a “nexus,” it appears that Poe is trying combine Richardson’s retroactivity and statutory interpreta‐ tion with Alleyne’s recent timing to fulfill the requirements for § 2241. A petitioner may not “cherry‐pick” aspects of legally unrelated Supreme Court cases in order to overcome AEDPA’s procedural requirements. Therefore, we reject Poe’s attempts.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Jerry Dean Ferguson v. West Central FS, Inc.

Case No.: 15-3093

Officials: EASTERBROOK, ROVNER, and HAMILTON, Circuit Judges.

Focus: Bankruptcy

Appellant bankruptcy appeal dismissed due to lack of jurisdiction

“No unsecured creditor (other than West Central, which was treated as secured at the time) objected to the most re‐ cent proposed distribution before the deadline that the bank‐ ruptcy judge set. Arguments that could have been raised ear‐ lier are forfeited on remand, but it isn’t surprising that no one objected to claims of the unsecured creditors—the estate was $149,000 short of having anything to distribute to them. Objecting to an unsecured claim would have been a futile exercise because it could not have changed the distribution. While the Bankruptcy Code and corresponding procedural rules mandate deadlines for some objections, see, e.g., Taylor v. Freeland & Kronz, 503 U.S. 638 (1992) (deadline to object to debtor’s claimed exemptions under 11 U.S.C. §522(l) and Fed. R. Bankr. P. 4003(b)), they don’t do so for objections to claims or to proposed distributions. See Schwab v. Reilly, 560 U.S. 770 (2010). A new proposal provides a new opportunity for the judge to consider objections. And no party has told us that there will be no objections.”

Appeal Dismissed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Joshua N. Bowser, et al: Apppeal of Bradly W. Carlson

Case No.: 15-2258

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

Focus: Property Forfeiture

Appellant was not due direct notice of the forfeiture action.

“The district court in United States v. Rosga, 864 F. Supp. 2d 439 (E.D. Va. 2012),recognized such a danger in a case presenting the same issues here—an effort to intervene in forfeiture actions based on ownership by the collective membership of the Outlaws. As in this case, the Rosga court was presented with forfeiture of Outlaws paraphernalia following RICO convictions of sixteen Outlaws members, and the government provided notice to those defendants as well as the public notice on its website. Four Outlaws members not named as defendants in the criminal case then contested the forfeiture, seeking the return of all indicia and other property associated with the Outlaws based on the argument that none of the individual defendants owned the Outlaws items. The court held that, in order to adequately allege standing to contest a forfeiture, the claimants must establish “at least ‘a facially colorable owner‐ ship interest’ in the property in question.” Id. at 448. The Rosga court noted that dismissal of the petition on such standing grounds would be proper only if the facts taken as true in the light most favorable to petitioners, “do not plausibly demonstrate a cognizable legal interest in the forfeited assets.” Id at 449. Faced with the same “collective membership” argument raised here, the court held that the petitioners—who never claimed to have been in possession of the property and asserted only unsupported legal conclusions of collective ownership—failed to demonstrate a cognizable interest in the items. The court noted that criminal forfeiture statutes should be construed to deny relief to parties engaged in manipulating ownership. The court deemed “well‐founded” the government’s argument that the collective ownership mechanism asserted by the Outlaws was “designed solely ‘to insulate from forfeiture property used by convicted members of the organization.’” Id. at 450.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Robin P. Hillmann v. City of Chicago

Case No.: 14-3438; 14-3494

Officials: FLAUM, MANION, and SYKES, Circuit Judges.

Focus: Causation

Hillmann lacked evidence to prove elements of causation as to all his claims.

“These findings are well supported by the record. The judge noted that Hillmann produced no evidence from which to infer that any of the merit-pay denials were retaliatory or that the City’s reasons for including his position in the RIF were pretextual. The RIF was necessitated by a budget shortfall and entailed 300–400 jobs. Hillmann was not singled out; all timekeeping positions in the Bureau of Electricity were included on the RIF list. The evidence established that no one was performing these functions anyway, and the implementation of the Kronos computerized payroll system made these positions obsolete. The judge’s decision easily survives clear-error review.”

Reversed and Remanded in part

Affirmed in part

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7^th Circuit Court of Appeals

Case Name: Tyron Petties v. Imhotep Carter et al

Case No.: 14-2674

Officials: WOOD, Chief Judge, and POSNER, FLAUM, EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, and HAMILTON, Circuit Judges

Focus: 8^th Amendment

Doctors knew the course of treatment were inadequate to meet appellant medical needs

“Dr. Carter’s opinion was consistent with the deposition testimony of Petties’s orthopedic specialist, Dr. Puppala, who testified that he would always immobilize a ruptured Achilles tendon, unless the injury had an open sore that needed to be addressed first. It was also consistent with the testimony of Dr. Chmell, the ankle specialist who treated Petties after Dr. Carter had left Stateville. He testified that immobilization is essential to the healing of an Achilles tendon, and that healing without immobilization is “possible but not very likely.”4 And finally, Wexford’s own protocol, which Dr. Carter testified he was responsible for implementing, stated that the primary course of treatment for an Achilles rupture included a splint. Dr. Carter also testified he was not aware of any shortage of splints at Stateville during the time that he was treating Petties. Together, these pieces of circumstantial evidence support a reasonable inference that Dr. Carter knew that failure to immobilize an Achilles rupture would impede Petties’s recovery and prolong his pain. It is certainly true that Dr. Carter’s decision not to immobilize Petties’s ankle could have been an oversight, or a fundamental misunderstanding of the proper course of treatment. Some of his testimony suggests that he believed crutches served the same purpose as a boot. But that testimony conflicts with other parts of his deposition that explained the distinct purpose of immobilization, which is not to prevent bearing weight on the injured foot, but to keep the ruptured tendon in one place. It also conflicts with the testimony of the other doctors who treated Petties. A jury could also find suspicious that Dr. Carter did not provide the boot until an outside doctor documented the importance of immobilization in writing. A reasonable inference to draw from this evidence is that Dr. Carter was aware of the need for immobilizing a ruptured tendon, but simply decided not to until he came under scrutiny. Also, a jury could reasonably conclude that Dr. Carter’s decision caused substantial harm—Petties’s affidavit stated that without a splint, he had nothing to keep his ankle from moving around, which made him feel “constant, severe pain” whenever he got up to walk, and made sleeping difficult.”

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Eber Salgado Gutierrez v. Loretta E. Lynch

Case No.: 16-1534

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

Focus: Petition of Removal

Appellant presents meritless argument against removal

“This argument lacks merit for two reasons. First, there is no indication that the Board misapplied the legal standard for CAT relief. The Board set out the correct legal standard, quoting the standard we articulated in Rodriguez-Molinero. But the Board then distinguished Salgado’s circumstances from those of the petitioners in Rodriguez-Molinero and Mendoza-Sanchez v. Lynch: Unlike the petitioners in those cases, Salgado “has not been tortured, harmed, threatened, or even inquired after by gang members.” Instead, the Board stated, Salgado’s evidence consisted of “random incidents of violence against family members which happened years apart and are unrelated and not connected in any way to the respondent.” No step of the Board’s analysis suggests that it misunderstood or misapplied the legal standard for obtaining CAT relief. Second, our statements in Rodriguez-Molinero about the Mexican government’s inability to control the Zetas do not establish that the Zetas are likely to single out Salgado for torture if he returns to Mexico. See Lenjinac v. Holder, 780 F.3d 852, 856 (7th Cir. 2015).”

Petition dismissed in part and denied in part

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7^th Circuit Court of Appeals

Case Name: Black Earth Meat Market, LLC et al v. Village of Black Earth, et al

Case No.: 15-3818

Officials: WOOD, Chief Judge, and BAUER and FLAUM, Circuit Judges.

Focus: Equal Protection

Appellant fails to adhere to reasonable care of its slaughterhouse facilities and cause of nuisances within town – ultimately leading to closure of facility

“As a result, although the Village pursued a campaign against continued slaughter activities by BEM at its current location, it had a rational basis for doing so. See Geinosky v. City of Chicago, 675 F.3d 743, 747 (7th Cir. 2012) (class‐of‐one equal protection claim requires that state actor has no rational basis for singling out plaintiff). It was BEM’s burden “to eliminate any reasonably conceivable state of facts that could pro‐ vide a rational basis for the classification.” D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d 681, 686 (7th Cir. 2013) (citations omitted). It has failed to do so.   Lastly, BEM has not suggested a sufficiently similar comparator. It needed to find someone (or something) that shared with it all the principal, pertinent characteristics. Swanson, 719 F.3d at 784. BEM offers David W. Heiney’s, a restaurant and bar, but Heiney’s does not fit the bill. The tavern was not responsible for livestock noise, foul odors, improper storage of animal parts, and offal runoff, blood, and animal waste in the streets (let alone half‐ton, horned desperadoes). There is no evidence that the Village received complaints from neighbors of Heiney’s in any way similar to those it received about BEM. That provides an independent reason to reject the equal protection theory.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Darryl J. Sutton v. Randy Pfister

Case No.: 15-2888

Officials: WOOD, Chief Judge, and MANION and HAMILTON, Circuit Judges.

Focus: 4^th amendment violation

Court erred in allowing writ of habeas corpus on 4^th amendment violation allegation as DNA evidence would inevitably be produced.

“Thus, even if Sutton falls within the Powell exception, he is not entitled to habeas corpus relief. Section 2254(a) permits a federal court to grant the writ only when the petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); see Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (legal errors that do not result in the petitioner’s “custody” violating the Constitution or federal law, such as errors of state law, cannot be remedied through the writ); Hampton v. Wyant, 296 F.3d 560, 562 (7th Cir. 2002) (petitioner imprisoned based on “unlawfully seized evidence is not ‘in custody in violation the Constitution’” because the “seizure may have violated the Constitution but the custody does not” (quoting 28 U.S.C. § 2254(a)). Here, even if the state violated the Fourth Amendment in the Rac case, Sutton’s custody in the Lally case is not in violation of the Constitution, and he is not entitled to the issuance of the writ.”

Grant of petition reversed

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7^th Circuit Court of Appeals

Case Name: Daniiar Santashbekovich Santashbekov v. Loretta E. Lynch

Case No.: 15-2359

Officials: FLAUM, RIPPLE, and HAMILTON, Circuit Judges

Focus: Immigration – Asylum

Substantial evidence supports notion that appellant’s claims of political persecution were not credible.

“Finally, Santashbekov argues that the Board and immigration judge violated his due process rights by dismissing his arguments “with no analysis” and failing to “give fair and proper weight to the evidence at hand … .” See Reno v. Flores, 507 U.S. 292, 306 (1993) (Fifth Amendment entitles aliens to due process of law in deportation proceedings). This argument is wide of the mark. The Board and the judge provided ample analysis to justify their decisions. Santashbekov’s argument that the Board and judge incorrectly weighed the evidence “is indistinguishable from a straightforward claim that [their decisions were] not supported by substantial evidence on the record.” Albu v. Holder, 761 F.3d 817, 822 (7th Cir. 2014). That argument fails both as a due process claim and on the merits. “

Petition Denied

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7^th Circuit Court of Appeals

Case Name: Maria Eudofilla Arias v. Loretta E. Lynch

Case No.: 14-2839

Officials: POSNER, RIPPLE, and HAMILTON, Circuit Judges.

Focus: Removal proceedings

Court to consider a new framework for judging crimes involving moral turpitude

“To add to the confusion, the Board did not correctly apply the Silva‐Trevino I framework in its opinion holding that Arias’s violation of § 408(a)(7)(B) involved moral turpitude. The Board selectively quoted the statute and then stated: “An intent to deceive for the purpose of wrongfully obtaining a benefit is an element of the offense, and therefore the offense is categorically a crime involving moral turpitude.” As noted above, § 408(a)(7)(B) criminalizes false use of a social security number not only to obtain a benefit but also “for any other purpose.” The Board rephrased the statute to fit Arias’s par‐ ticular circumstances, which indicates that the Board looked beyond the statute to determine that Arias’s crime of convic‐ tion involved moral turpitude. This was permissible under Silva‐Trevino I, but only if examination of the statute proved inconclusive. Silva‐Trevino I, 24 I. & N. Dec. at 690.1 “

Petition granted

Remanded for court to consider under appropriate legal framework

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7^th Circuit Court of Appeals

Case Name: United States of America v. Alfredo Vasquez-Hernandez

Case No.: 14-3622

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

Focus: Sentencing

Judge justified imposing sentence above guidelines

“Vasquez-Hernandez maintains that the judge should not have imposed a sentence longer than 235 months, the top of the range as the court calculated it. His sentence was 29 months higher, which does not require elaborate justification. The quantity table in U.S.S.G. §2D1.1 assigns 150 to 450 kilograms of cocaine to offense level 36. Vasquez-Hernandez was responsible for at least 276 kilograms of cocaine, almost double what is necessary to produce that level. The judge also suspected that Vasquez-Hernandez was lying when he said that these 276 kilos represent the only drugs for which he is responsible, and that he is just the proprietor of a struggling auto-repair shop who accepted help in the form of 276 kilos of cocaine from friends who wanted to assist his family financially. The judge stated: “I cannot sit here, as a judge who’s been on the bench for 20 years and who’s been involved in the drug war for a good portion of my life, and think for one second, nor do I think any other Chicagoan could think for one second that this was the first time that you just happened to do this, that you … got up out of bed and said, well, let me do a 276-kilogram transaction to Chicago today.””

Affirmed

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7^th Circuit Court of Appeals

Case Name: S.C. Johnson & Son, Inc., v. Nutraceutical Corporation, et al.

Case No.: 15-3337

Officials: WOOD, Chief Judge, and FLAUM and WILLIAMS, Circuit Judges

Focus: Trademark Infringement – Continuity of Use

District Court abused discretion by entertaining SC Johnson post-trial argument that respondent did not have continuity of use as to their mark.

“S.C. Johnson points to cases noting that sporadic or de minimis use generally may not establish trademark rights. See, e.g., Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1196 (11th Cir. 2001). But these cases are properly understood as ferreting out situations where the use “may indicate the mere intent to reserve a mark for later use rather than the present commercial utilization of the mark.” Allard Enterprises, 146 F.3d at 359 (discussing La Société Anonyme des Parfums Le Galion v. Jean Patou, Inc., 495 F.2d 1265 (2d Cir. 1974)). Such use cannot qualify as “the kind of bona fide use intended to afford a basis for trademark protection.” Id. (quoting Le Galion, 495 F.2d at 1272); see also Planetary Motion, 261 F.3d at 1196 (noting that putative owner did not make the product available “merely to a discrete or select group”); Blue Bell, 508 F.2d at 1265 (noting that “[s]ecret, undisclosed internal shipments are generally inadequate to support the denomination ‘use’”).”

Reversed with instructions to vacate

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7^th Circuit Court of Appeals

Case Name: Ruthelle Frank, et al., v. Scott Walker, et al. ; One Wisconsin Institute, Inc., et al v. Mark L. Thomsen, et al

Case No.: 16-3003; 16-3052; 16-3083; 16-3091

Officials: WOOD, Chief Judge, and POSNER, FLAUM, EASTERBROOK, KANNE, ROVNER, SYKES, and HAMILTON, Circuit Judges.*

Focus: Photo Identification law – Petition for hearing en banc

“Given the State’s representation that “initiation” of the IDPP means only that the voter must show up at a DMV with as much as he or she has, and that the State will not refuse to recognize the “initiation” of the process because a birth certificate, proof of citizenship, Social Security card, or other particular document is missing, we conclude that the urgency needed to justify an initial en banc hearing has not been shown. Our conclusion depends also on the State’s compliance with the district court’s second criterion, namely, that the State adequately inform the general public that those who enter the IDPP will promptly receive a credential for voting, un‐ less it is plain that they are not qualified. The Western District has the authority to monitor compliance with its injunction, and we trust that it will do so conscientiously between now and the November 2016 election”

Petition denied

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7^th Circuit Court of Appeals

Case Name: Scott Weldon v. United States of America

Case No.: 15-1994

Officials: BAUER, POSNER, and SYKES, Circuit Judges

Focus: Motion to vacate – Ineffective Assistance of Counsel

Appellant entitled to evidentiary hearing to determine if but for attorney error, the government would negotiate a deal with less prison time.

“Suppose you have lunch with a friend, order two hamburgers, and when your hamburgers are ready you pick them up at the food counter and bring them back to the table and he eats one and you eat the other. It would be very odd to describe what you had done as “distributing” the food to him. It is similarly odd to describe what either Weldon or Fields did as distribution. They had agreed to get high together, they shared the expense, they all went together to the drug dealer, and they shared the drug that they bought from him. It’s true that only Weldon transferred the money for the drug to the dealer, but it was the pooled money that he was handing over, although his contribution to the pool had been slight. It’s true that having paid he carried the drug back to Roth’s car. But it would have been absurd for all three to have gone up to the dealer and each pay him separately, and even more absurd for them to have carried the minute package, containing less than half a gram of powder, together to the car and from the car to Roth’s residence. And remember that a jury rejected the argument that Fields’ injecting Roth with the heroin (which metabolized to morphine after it was injected) was the distribution of the heroin‐morphine to Roth.”

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Raymond E. King v. Randy Pfister

Case No.: 14-3389

Officials: WOOD, Chief Judge, and KANNE and ROVNER, Circuit Judges

Focus: Ineffective Assistance

Appellant failed to present a claim for ineffective assistance based on federal due process

“The same principle that governed Miller controls the pre‐ sent case. In People v. King, the appellate court held that King could not demonstrate prejudice under Strickland because if his trial or appellate counsel had litigated his “unsubstantiated allegations” under 725 ILCS 5/114‐5(d), the challenge would have been unsuccessful under the Illinois substantive standard, which required that “the judge assigned to his case harbors actual prejudice” such that there was “animosity, hostility, ill will, or distrust towards this [specific] defend‐ ant.” No. 03‐08‐0875 at 5 (citing People v. Patterson, 735 N.E.2d 616, 638 (Ill. 2000)). In other words, the appellate court’s decision “rests on a conclusion that, as a matter of state law, it would have been futile” for King’s trial or appellate counsel to raise such a claim. Miller, 820 F.3d at 277. And similar to Miller, we cannot disturb the appellate court’s decision because a “federal court cannot disagree with a state court’s resolution of an issue of state law” in the context of habeas review. Id. At best, King can contend that the appellate court misinterpreted or misapplied Illinois state law. However, this contention is meritless because this court has expressly held that a “claim that the state court misunderstood the substantive requirements of state law does not present a claim under § 2254. A federal court may not issue the writ on the basis of a perceived error of state law.” Bates v. McCaughtry, 934 F.2d 99, 102 (7th Cir. 1991) (internal quotation marks omitted).”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Felipe Zamora & Samuel Gutierrez

Case No.: 15-2193; 15-2762

Officials: POSNER, EASTERBROOK, and SYKES, Circuit Judges

Focus: Court Error – Sentencing Guidelines

Judge erred by failing to provide explanation for sentencing conditions and failing to calculate guideline range.

“With regard to Gutierrez the judge committed an addi‐ tional error by failing to calculate his guidelines range (one of the errors, the reader will recall, that caused us to order Zamora resentenced). Furthermore, though we instructed the judge to reconsider on remand his ruling that Gutierrez had not accepted responsibility for the crimes he’d pleaded guilty to, we can’t tell from the sentencing transcript how the issue of acceptance of responsibility was resolved. It is true that Gutierrez’s new sentence—188 months—would be the top of the guidelines range recommended by the defense and the government, reflecting the deduction of three of‐ fense levels for acceptance of responsibility. But the judge’s extended colloquy concerning Gutierrez’s activities as a member of the Latin Kings and apparent dissatisfaction with Gutierrez’s answers are consistent with the judge’s having reduced his sentence not because he’d accepted responsibil‐ ity for his crime but because like Zamora he’d behaved well in prison. Pepper v. United States, supra, 562 U.S. at 490–93. But thatʹs just a guess; for in contrast to his treatment of Za‐ mora, the judge did not mention Gutierrez’s good behavior in prison, did not mention any of the section 3553(a) sentenc‐ ing factors, and did not explain why, assuming he was sub silentio crediting Gutierrez with accepting responsibility, he nevertheless thought that unlike Zamora Gutierrez deserved to be sentenced at the high end of the applicable guidelines range. (This assumes that the judge agreed with the litigants’ guidelines calculation.)”

Vacated and remanded for resentencing

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7^th Circuit Court of Appeals

Case Name: Leroy Anderson v. Matthew Morrison et al

Case No.: 14-3781

Officials: FLAUM, MANION, and WILLIAMS, Circuit Judges

Focus: 8^th Amendment violation

The risk of serious harm was substantial where prison guards forced appellant to walk down stairs unassisted while handcuffed when milk, garbage and other debris were on the stairs

“The defendants respond by arguing, unhelpfully, that the risk of slipping in a prison shower does not violate the Eighth Amendment. They cite cases in which our sister circuits have ruled that keeping a violent prisoner shackled while he uses the shower, see LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993), and failing to drain standing water in a shower area used by an inmate on crutches, see Reynolds v. Powell, 370 F.3d 1028, 1031 (10th Cir. 2004), do not pose sufficient risks of harm to state a claim. But these cases are distinguishable for two reasons. First, plummeting down a flight of 13 steps presents a far greater risk of physical injury than does slipping on a shower floor. Second, the floors in LeMaire and Reynolds and the stairs in Pyles were unavoidably wet: showers necessarily produce wet floors, and in Pyles, the water on inmates’ shower shoes inevitably tracked onto the exit stairway, see Pyles, 771 F.3d at 405. But here, stairs slicked with milk and cluttered with garbage are not a necessary condition of prison. And by cleaning the stairs, the high risk of serious harm would ebb.”

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Lissa Allen et al v. GreatBanc Trust Co.,

Case No.: 15-2569

Officials: WOOD, Chief Judge, and FLAUM and WILLIAMS, Circuit Judges

Focus: ERISA Violations – Employee Stock Plan

Plaintiff properly alleged a prohibited transaction and a breach of fiduciary duty in their pleadings.

“The plaintiffs met this burden: they alleged that the stock value dropped dramatically after the sale (implying that the sale price was inflated), that the loan came from the employer‐ seller rather than from an outside entity (indicating that out‐ side funding was not available), and that the interest rate was uncommonly high (implying that the sale was risky, or that the shareholders executed the deal in order to siphon money from the Plan to themselves). These facts support an inference that GreatBanc breached its fiduciary duty, either by failing to conduct an adequate inquiry into the proper valuation of the shares or by intentionally facilitating an improper trans‐ action.”

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Jose Antonio Cisneros v. Loretta E. Lynch

Case No.: 15-3238

Officials: WOOD, Chief Judge, and MANION and HAMILTON, Circuit Judges.

Focus: Waiver of Inadmissibility

Board of immigration overturn of waiver of inadmissibility was a discretionary decision. As a result, the court lacked jurisdiction as its jurisdiction extends only to legal or constitutional issues.

“We see nothing in the statute that compels the Attorney General to adopt one or the other of these methodologies. Be‐ cause she created the regulation to guide her own discretion, she retains the authority to decide how to interpret the term “violent or dangerous” crime, as long as the interpretation is permissible under the INA. Chevron, 467 U.S. at 843; see also Makir‐Marwil, 681 F.3d at 1235 (“all Jean requires is an adequate consideration of the nature of the refugee’s crime”).”

Petition for review denied

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7^th Circuit Court of Appeals

Case Name: United States of America v. Djuane McPhaul

Case No.: 16-1162

Officials: EASTERBROOK and WILLIAMS, Circuit Judges, and YANDLE, District Judge

Focus: Suppression of evidence

Body armor worn by appellant was properly denied suppression as the pat down that revealed the body armor was valid and lawful.

“McPhaul says that even if there was probable cause to arrest him, the body armor was still discovered through an unreasonable search. He argues that his violations were relatively minor so they did not justify the officers’ use of their “felony stop” procedures (including removing McPhaul from the car and patting him down). The argument is fundamentally misplaced. Whether the officers acted in accordance with their departmental policies, or even state law, is irrelevant. Virginia v. Moore, 553 U.S. 164, 176 (2008). Federal constitutional law—the applicable law—is clear. Having lawfully arrested McPhaul, the officers were allowed to pat him down. Id. at 176–78; United States v. Robinson, 414 U.S. 218, 235 (1973) (“A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.”). There was no Fourth Amendment violation, so the district judge did not err in denying McPhaul’s motion to suppress.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Roy L. Ward v. Ron Neal

Case No.: 16-1001

Officials: WOOD, Chief Judge, and EASTERBROOK and ROVNER, Circuit Judges.

Focus: Ineffective Assistance of Counsel

Appellant suffered no prejudice from attorney highlight of appellant shortcomings to the jury.

“With that intentionally demanding statutory standard in mind, even assuming that Ward’s attorneys performed deficiently when they pounded into the jury’s mind the idea that Ward is a psychopath—not merely someone suffering from severe antisocial personality disorder—we cannot say that the state court’s conclusion that there was no prejudice was unreasonable. First, the state court unquestionably turned to the correct decision from the U.S. Supreme Court, and so there is no issue of a decision “contrary to” established law. Nor can we say that the Indiana Supreme Court unreasonably applied Strickland. The lay mitigation evidence that Ward gathered for the postconviction proceedings would have shown, if credited, that he was a well-behaved and thoughtful child, who had an especially close relationship with his grandfather. It would also have underscored Ward’s psychological problem with exhibitionism, hinting if not proving that this was something he either inherited from his father and grandfather, or maybe copied from them (both had the same problem). This evidence is not particularly strong, and it is largely cumulative of the mitigating evidence the second jury did hear.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Chris P. Lane v. Riverview Hospital

Case No.: 15-1118

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

Focus: Race Discrimination

No error on behalf of the court in granting summary judgment for defendants. Appellant intentionally injured a patient, yielding a reasonable termination.

“If there were more substance to the Rainey comparison here, we would find a jury issue here, as well. But the two inferential steps go too far here. To go from this factual discrepancy to an inference of racial bias, a jury would have to conclude first that the discrepancy was the result of a deliberate decision to mislead the EEOC and second that the motive of the deliberate decision to mislead was to conceal unlawful race discrimination. Without further circumstantial evidence of unlawful discrimination, a reasonable jury could not take that step. (The issue here is familiar as the pretext element of the McDonnell Douglas framework for circumstantial evidence. See Castro, 786 F.3d at 574; McInnis v. Alamo Community College Dist., 207 F.3d 276, 283 (5th Cir. 2000). Even under that framework, such evidence of pretext is not enough by itself to prove discrimination; it becomes a factor only after the plain‐ tiff has shown other circumstances corroborating unlawful in‐ tent, including evidence that a similarly situated employee outside the plaintiff’s protected class was treated better. That additional evidence is missing here.) Even if we assume that Kuzee and the hospital deliberately misled the EEOC about her role in the Rainey incident, that would not by itself sup‐ port the further inference of unlawful intent. And the rest of the support here is just too weak to allow a reasonable inference of discrimination.”

Affirmed

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WI Court of Appeals Digest

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kyle James King

Case No.: 2015AP873-CR

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

Focus: Ineffective Asisstance of Counsel

Kyle James King appeals from a judgment of conviction, entered upon his guilty plea, on one count of robbery with the use of force. King also appeals from an order denying his postconviction motion without a hearing. King alleges that trial counsel was ineffective for failing to investigate a third-party-perpetrator defense, and he would not have entered his guilty plea but for counsel’s ineffectiveness. We conclude the circuit court properly denied the motion, so we affirm the judgment and order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Sakajust K. Scott

Case No.: 2015AP1154-CR

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

Focus: Ineffective Assistance of Counsel

Sakajust K. Scott appeals a judgment of conviction entered after a jury found him guilty of first-degree intentional homicide while using a dangerous weapon. He also appeals an order denying postconviction relief. He claims his trial counsel was ineffective for failing to seek suppression of his custodial statement on the ground that he invoked his right to counsel at the time of his arrest. The trial court rejected his claim without a hearing, and we affirm.

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WI Court of Appeals – District I

Case Name: Wendy Green v. Housing Authority of the City of Milwaukee

Case No.: 2015AP1247

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

Focus: Housing Authority – Rent Assistance Program – Contractual Obligations

Wendy Green was a tenant in the rent assistance program (the Program) subsidized by the federal government through Section 8. The Housing Authority of the City of Milwaukee (HACM) administers the Section 8 program in Milwaukee. Green appeals the HACM decision terminating her from the Program due to non-compliance with the terms of her rent repayment agreement and the circuit court’s denial of her writ of certiorari challenging the HACM decision

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WI Court of Appeals – District III

Case Name: Oconto County v. Jonathan E. Van Ark

Case No.: 2015AP1415

Officials: SEIDL, J.

Focus: Court Error – Directed Verdict

Jonathan Van Ark appeals a judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration (PAC). We conclude the circuit court erroneously entered a directed verdict and we therefore reverse the judgment and remand for a new trial

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Timothy J. Gahagan, Jr.

Case No.: 2015AP1328-CR

Officials: Neubauer, C.J., Gundrum and Hagedorn, JJ.

Focus: Sufficiency of Evidence – Probable Cause

Timothy Gahagan appeals from a judgment convicting him of several drug and drug paraphernalia possession charges, maintaining a drug-trafficking place, and child neglect, and from the order denying his motion for postconviction relief. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Andrew T. Whitcomb

Case No.: 2015AP1589-CR

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

Focus: Testimony – Alibi Evidence

Andrew T. Whitcomb appeals from a judgment of conviction and an order denying his postconviction motion. He raises several arguments on appeal, all related to the circuit court’s striking of his alibi testimony at trial. For the reasons that follow, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Jessie Gustave Ziegenhagen

Case No.: 2015AP2005-CR

Officials: Neubauer, C.J., Gundrum and Hagedorn, JJ

Focus: Warrantless Search – Motion to Suppress

This case concerns whether a warrantless search is constitutional under the community caretaker exception. Several witnesses informed police that a man and woman had been involved in a physical altercation in front of Jessie Ziegenhagen’s house. The witnesses also relayed that the woman had gone back inside. After looking around the house, noticing a door slightly ajar, and calling for the woman to no avail, the officers entered the home. Though they did not find the woman, the officers did see marijuana in plain sight. Following a warrant and seizure of the contraband, Ziegenhagen was charged with various crimes. Ziegenhagen complains the initial search violated his Fourth Amendment rights and—because the warrant for the subsequent search was based on information obtained during the first search—he moved to suppress the evidence. The circuit court disagreed, denied his motion to suppress, and concluded that the warrantless entry was justified under the community caretaker exception. We affirm

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Sana Gutierrez

Case No.: 2015AP2138; 2015AP2139

Officials: GUNDRUM, J.

Focus: License Revocation – Sufficiency of Evidence

Sana Gutierrez appeals from judgments revoking her driver’s license pursuant to WIS. STAT. § 343.305 for refusing to provide a requested breath sample following her arrest and convicting her of operating a motor vehicle while intoxicated, first offense, under WIS. STAT. § 346.63(1)(a). 2 She argues that the arresting officer did not sufficiently convey to her the implied consent warnings related to § 343.305 and that the evidence was insufficient to show she was intoxicated when she operated the vehicle. For the following reasons, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Katherine J. Downer Jossi

Case No.: 2016AP618-CR

Officials: Reilly, P.J.

Focus: Good Faith Exception – Exclusionary Rule

Katherine J. Downer Jossi appeals her conviction for possession of drug paraphernalia arguing that the circuit court should not have applied the good faith exception to the exclusionary rule. We affirm

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WI Court of Appeals – District IV

Case Name: Rebecca Ann Pettit v. John Michael Hein

Case No.: 2015AP1412

Officials: Lundsten, Higginbotham and Sherman, JJ.

Focus: Divorce

Rebecca Ann Pettit appeals the circuit court’s ruling, as part of the judgment of divorce, that Pettit is required to reimburse John Michael Hein in the amount of $111,500, according to the terms of their Marital Property Agreement (MPA). The sole issue on appeal is whether the MPA requires Pettit to reimburse Hein for payments he made to her creditors out of his individual property. For the reasons we explain below, we conclude that Pettit is required to reimburse Hein, and therefore we affirm

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Charles J. Cotter

Case No.: 2015AP1916-CR

Officials: Kloppenburg, P.J., Sherman, and Blanchard, JJ.

Focus: Motion to Suppress

Charles Cotter appeals a judgment convicting him of possession of narcotic drugs in violation of WIS. STAT. § 961.41(3g)(am) (2013- 14). He argues that the circuit court erroneously denied his motion to suppress evidence.2 We disagree, and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jeremy L. Wand

Case No.: 2015AP2344-CR

Officials: Kloppenburg, P.J., Lundsten and Blanchard, JJ.

Focus: Ineffective Assistance of Counsel – Plea Withdrawal

Jeremy Wand contends that the circuit court wrongly denied his post-sentencing plea withdrawal motion without an evidentiary hearing. . . After sentencing, Wand filed a motion alleging that plea withdrawal was necessary to correct a “manifest injustice” resulting from the ineffective assistance of his trial attorneys. Wand alleged that his trial attorneys coerced him to plead guilty, that his trial attorneys failed to retain a fire investigation expert to dispute the origin of the fire, and that his trial attorneys failed to retain a police interrogation expert to support a pretrial motion to suppress statements that Wand made to law enforcement shortly after the fire. The circuit court denied the post-sentencing plea withdrawal motion without an evidentiary hearing.

Wand appeals, seeking remand for an evidentiary hearing. We conclude that Wand is not entitled to an evidentiary hearing because his motion seeking a hearing fails to allege sufficient facts that, if true, would entitle him to the relief he seeks. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: Thomas F. Benson, et al v. City of Madison

Case No.: 201AP2366

Officials: Kloppenburg, P.J., Lundsten and Sherman, JJ.

Focus: Fair Dealership Law

Many years ago, the City of Madison began contracting with several golf professionals (the “Golf Pros”) to run most operations at City-owned golf courses. At the end of 2012, the City decided to not renew the Golf Pros’ contracts and to use City personnel to run all golf course operations. The Golf Pros sued the City under the Wisconsin Fair Dealership Law, alleging that they had dealerships within the meaning of that Law and that the City’s actions violated dealership protections under the Law. The circuit court concluded on summary judgment that the Golf Pros did not have dealerships and, consequently, dismissed their Dealership Law action against the City. The Golf Pros appeal. The parties dispute whether a municipality is subject to the Dealership Law. We need not address that question. We assume, without deciding, that the Dealership Law applies to municipalities, and agree with the circuit court that, regardless, the Golf Pros did not have dealerships. More specifically, we conclude that the Golf Pros’ arrangement with the City, at a minimum, fails to satisfy the second of three statutory elements for the existence of a dealership. Applied here, the second element requires the grant of a right to sell or distribute the City’s goods or services or to use the City’s commercial symbols. We affirm.

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WI Court of Appeals – District IV

Case Name: City of Madison v. Ray Peterson

Case No.: 2016AP805

Officials: Lundsten, J.

Focus: Appeal of Judgment

Ray Peterson appeals, pro se, the circuit court’s order denying his motion to reconsider dismissal of his request for review of municipal court judgments against Peterson for $586,339 and $5,353. He also appeals the underlying dismissal order. For the reasons stated below, I affirm the circuit court’s orders. I also grant the City’s motion for costs, fees, and reasonable attorney fees as allowed for a frivolous appeal under WIS. STAT. RULE 809.25(3). I remand to the circuit court for an assessment of those costs and fees.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. T.L.T.

Case No.: 2016AP471

Officials: CURLEY, P.J.

Focus: Termination of Parental Rights

T.L.T. appeals from an order terminating her parental rights to her son, E.A.T., as well as from an order denying her motion to reconsider.2 The sole issue T.L.T. raises on appeal is that this court should exercise its discretionary reversal power as granted by WIS. STAT. § 752.35. For the reasons explained below, we affirm the dispositional order terminating T.L.T.’s parental rights to E.A.T. and the order denying T.L.T.’s motion to reconsider.

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