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Weekly Case Digests — Feb. 6 – Feb. 10, 2017

By: WISCONSIN LAW JOURNAL STAFF//February 10, 2017//

Weekly Case Digests — Feb. 6 – Feb. 10, 2017

By: WISCONSIN LAW JOURNAL STAFF//February 10, 2017//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: In Re: Margaret Kempff, Appeal of: Brian K. Farley

Case No.: 15-3200

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

Focus: Bankruptcy – Adversary Complaint

Margaret Kempff’s ex-husband Bart embezzled more than $1 million from his employer while the two were still married. To evade detection, he attempted to replenish the stolen funds, borrowing $400,000 from his friend Brian Farley on the ruse that the money would be used for a real-estate development. As security for the loan, Bart gave Farley a third-priority lien on the couple’s home, forging Margaret’s signature on the note and mortgage. Bart’s effort to cover his tracks did not succeed. His employer discovered the embezzlement and reported it to police; he was eventually convicted of felony theft. In the meantime, Margaret divorced him and the couple’s home went into foreclosure. Farley filed a cross-claim in the foreclosure action seeking to enforce his lien, but the sale of the home did not yield nearly enough to cover even the first mortgage. Margaret filed for bankruptcy while the foreclosure was pending, which stayed Farley’s claim. Farley then filed an adversary complaint challenging Margaret’s eligibility for a Chapter 7 discharge. He claimed that she made a fraudulent transfer after filing her bankruptcy petition and made multiple false statements in her bankruptcy schedules. Margaret testified at trial that these were innocent mistakes. The bankruptcy judge credited her testimony and rejected each of Farley’s contentions, and the district court affirmed that decision. We do the same. Farley’s arguments for overturning the bankruptcy judge’s ruling are most charitably described as ill-considered. The decision rests on the judge’s acceptance of Margaret’s testimony as credible. Credibility determinations are almost never disturbed on appeal. Farley gives us no good reason to do so here.

Affirmed

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7th Circuit Court of Appeals

Case Name: William D. Avery v. City of Milwaukee, et al

Case No.: 15-3175

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

Focus: Wrongful Conviction

In February 1998 Maryetta Griffin was raped and strangled to death and left in an abandoned garage on Milwaukee’s north side. In 2004 Milwaukee police arrested William Avery for the crime. He was convicted of first-degree homicide and spent six years in prison before DNA evidence proved that Walter Ellis, a serial killer linked to nine similar homicides, was responsible for the murder. In 2010 Avery was released from prison; this wrongful conviction suit followed. Avery alleged that Milwaukee detectives concocted a fake confession and induced three jailhouse informants to falsely incriminate him—evidence that was ultimately used to convict him. He also claimed that the detectives failed to disclose, as required by Brady v. Maryland, 373 U.S. 83 (1963), impeachment evidence about how they obtained the false statements from the informants. Finally, Avery added a claim against the City of Milwaukee under Monell v. Department of Social Services, 436 U.S. 658 (1978). The district judge rejected the Brady claims on summary judgment, reasoning that the detectives had no duty to disclose the impeachment evidence because Avery already knew the informants’ statements were false. The remaining claims were tried to a jury, which found two of the detectives liable for violating Avery’s due-process rights. The jury also found the City liable and awarded $1 million in damages. Avery’s victory was short-lived. The judge invalidated the verdict against the detectives based on what he said were “mixed signals” coming from this court on whether an officer’s fabrication of evidence is actionable as a due process violation. The judge also set aside the verdict against the City, holding that without a constitutional violation by the detectives, Monell liability was not possible. We reverse. Avery’s due-process claims fall comfortably within our decision in Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir. 2012), so the jury’s verdict was legally sound and must be reinstated in its entirety. The Brady claims, too, must

be revived. That Avery knew the informants’ statements were false did not relieve the detectives of their duty to disclose impeachment evidence. Avery is entitled to resume litigation of these claims.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: John R. Casey v. Nancy A. Berryhill

Case No.: 15-2810

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

Focus: Disability Benefits – Overpayment

In 2009, the Social Security Administration notified Plaintiff John Casey that he needed to repay about $334,000 in disability benefits he should not have received. Casey sought a waiver, but an administrative law judge denied his request. Six months later, Casey submitted an untimely request to the Appeals Council seeking review of the ALJ’s decision. Casey argued that he had good cause for his delay. The Appeals Council seemed to agree. On April 12, 2012, the Council extended Casey’s deadline to submit evi‐ dence or a statement in support of his waiver claim. But on July 17, 2013, the Appeals Council reversed course, informing Casey that it had dismissed his request for review because there was “no good cause to extend the time for filing.” Casey then sued the Acting Commissioner of Social Security in dis‐ trict court. The Commissioner moved to dismiss, and a mag‐ istrate judge recommended granting the Commissioner’s mo‐ tion. The district judge adopted the magistrate’s recommen‐ dation and dismissed the case. The district court erred. The action by the Appeals Council in first granting and then retroactively denying Casey’s good cause request was arbitrary, having the effect of an unfair bu‐ reaucratic bait‐and‐switch. To be sure, the Council had discre‐ tion to determine initially whether Casey offered good cause for his late administrative appeal. See 20 C.F.R. §§ 404.968(b), 404.911. But having granted Casey’s request, the Council could not simply change its mind and dismiss Casey’s appeal on the theory that he had not adequately justified his delay, after leading him on for over a year without suggesting he needed to provide more information, an affidavit, or anything else by way of support. We reverse the judgment of the district court and remand with instructions to remand this matter to the agency for administrative proceedings consistent with this opinion.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Estate of William A. Miller v. Helen J. Marberry et al

Case No.: 15-1497

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

Focus: Identity

While confined at the federal prison in Terre Haute, Indiana, William Miller fell out of an upper bunk and broke his back. Contending that he should have been in a lower bunk, Miller seeks compensation in this Bivens action. Miller died in June 2016; the record does not show why. His estate has been substituted as the plaintiff, but we use his name to make the exposition easier to follow. Miller’s principal problem is the identity of the two defendants: Gary Rogers, a guard, and Helen Marberry, then the Warden of Terre Haute. Miller does not seek relief from any physician or nurse, even though the prison’s medical department is responsible for deciding who has a medical need for a lower bunk. (His complaint named nurse Trisha Haddix, but he has abandoned that claim.) Nor did Miller sue the guard responsible for making bunk assignments. That guard sits in a pod containing a computer with access to the prison’s SENTRY database that identifies medical restrictions. Rogers, by contrast, roamed the cells on foot Miller’s principal problem is the identity of the two defendants: Gary Rogers, a guard, and Helen Marberry, then the Warden of Terre Haute. Miller does not seek relief from any physician or nurse, even though the prison’s medical department is responsible for deciding who has a medical need for a lower bunk. (His complaint named nurse Trisha Haddix, but he has abandoned that claim.) Nor did Miller sue the guard responsible for making bunk assignments. That guard sits in a pod containing a computer with access to the prison’s SENTRY database that identifies medical restrictions. Rogers, by contrast, roamed the cells on foot

Affirmed

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7th Circuit Court of Appeals

Case Name: P.H. Glatfelter Co. v. Windward Prospect Ltd.,

Case No.: 15-3847; 16-1197; 16-1310

Officials: FLAUM, MANION, and WILLIAMS, Circuit Judges

Focus: Discovery – Motion to Compel

These three appeals arise out of a discovery dispute between P.H. Glatfelter Co., a paper manufacturer, and Windward Prospects Ltd., an English company on which Glatfelter served a non-party subpoena. Two of the appeals are taken by Glatfelter from the district court’s orders denying both Glatfelter’s motion to compel responses to its subpoena and Glatfelter’s motion for reconsideration. The third appeal, which we treat as a cross-appeal, was taken by Windward to seek an award of fees and costs under Federal Rule of Civil Procedure 37. For the reasons that follow, we dismiss all three appeals for lack of jurisdiction.

7th Circuit Court of Appeals

Case Name: Jan Domanus, et al v, Locke Lord LLP et al

Case No.: 15-3647

Officials: WOOD, Chief Judge, and KANNE and HAMILTON, Cir cuit Judges

Focus: RICO

If the allegations in the supplemental complaints filed in this case are to be believed, the defendant law firms and lawyers were involved in a hornet’s nest of ethical violations. The more difficult question, however, is whether the complaints state claims under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(d), commonly known as RICO. Complicating matters is the fact that the alleged RICO violations all relate to a Polish company, Krakow Business Park Sp. z o.o. (Spółka z ograniczoną odpowiedzialnością, which roughly means private limited company), and its affiliates and owners. See RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016). The district court concluded, in an exhaustive opinion, that plaintiffs were estopped from asserting certain aspects of their claim and that nothing in the complaint plausibly asserted that the lawyer‐ defendants (which we will call them unless greater precision is needed) stepped over the line between representation of their clients and participation in a RICO conspiracy. We agree that the complaints do not state any federal claim, and so we affirm the district court’s judgment.

Affirmed

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7th Circuit Court of Appeals

Case Name: Robert L. Tatum v. Brian Foster

Case No.: 14-3343

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

Focus: 6th Amendment – Right to Self Representation

Although the Sixth Amendment to the U.S. Constitution gives every criminal defendant the right “to have the Assistance of Counsel for his defence,” the Supreme Court has recognized for more than 40 years that this does not mean that counsel can be shoved down an unwilling defendant’s throat. At least since the Court decided Faretta v. California, 422 U.S. 806 (1975), the constitutional language has been understood as a personal right to decide how to defend oneself. “[T]he right to self-representation,” Faretta proclaimed, “is thus necessarily implied by the structure of the Amendment.” 422 U.S. at 819. This is true despite the fact that it is generally foolish for a person defending serious criminal charges to proceed without counsel. Trial judges are entitled—indeed encouraged—to warn defendants of the risks that attend self-representation. In the end, however, Faretta requires them to honor the defendant’s wishes, assuming that the defendant is generally competent. The present case raises the question whether the Wisconsin courts unreasonably applied Faretta when they refused to allow Robert Tatum to represent himself. The state trial court took this step after questioning Tatum not about his general competence, but about his educational level and understanding of the legal system. Tatum’s conviction was upheld in the state court system, and the district court denied his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. We reverse. Try as we might, we cannot reconcile the test the Wisconsin state courts used in assessing Tatum’s right to self-representation with the Supreme Court’s holding in Faretta.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Sylvia Hollins

Case No.: 16-1442

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

Focus: Sentencing – Court Error

This case comes to us for the second time after a district court revoked Sylvia Hollins’s supervised release stemming from her 2007 federal conviction. In the first appeal, we granted a joint motion for summary reversal and remand for resentencing. See United States v. Hollins, No. 15‐3750 (7th Cir. Jan. 27, 2016). The district court obliged with a resentencing hearing held on February 25, 2016. Hollins has appealed from the new sentence, which she asserts is tainted by several procedural flaws. We find no error, however, and so we affirm the district court’s judgment.

Affirmed

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7th Circuit Court of Appeals

Case Name: Dana Container, Inc. v. Secretary of Labor

Case No.: 16-1087

Officials: WOOD, Chief Judge, and EASTERBROOK and SYKES, Circuit Judges

Focus: OSHA Violations

It is not hard to find people who complain about government regulations, but the regulations often exist because people do not take optimal precautions on a voluntary basis. This case illustrates that problem. It arose after toxic fumes in a large container knocked out a man who was working inside it. Fortunately, he was rescued by the local fire department, but his employer, Dana Container, wound up fighting citations from the Occupational Safety and Health Administration (OSHA). After an administrative law judge (ALJ) and the Occupational Safety and Health Review Commission upheld OSHA’s actions, Dana turned to this Court. Because Dana has not provided a compelling reason to overturn the Commission’s determinations, we deny its petition for review.

Petition Denied

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7th Circuit Court of Appeals

Case Name: Dentrell Brown v. Richard Brown

Case No.: 16-1014

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

Focus: Ineffective Assistance of Counsel

Petitioner Dentrell Brown and his co-defendant Joshua Love were convicted of murder in a joint trial in an Indiana court. After exhausting state court remedies, Brown filed a federal habeas corpus petition under 28 U.S.C. § 2254. He claims he was denied effective assistance of counsel when his lawyer failed to insist that the judge give the limiting instruction required when evidence of a co-defendant’s out-of-court confession is introduced in a joint trial. See Bruton v. United States, 391 U.S. 123 (1968) (protecting codefendant from testimonial confessions of other co-defendants). The district court denied the habeas petition, finding that Brown had procedurally defaulted this claim for ineffective assistance of trial counsel by failing to assert it in state court so that federal review is barred. Brown has appealed. On the issue of procedural default, we hold that the form of “cause” found in Martinez v. Ryan, 566 U.S. —, 132 S. Ct. 1309 (2012), and expanded in Trevino v. Thaler, 569 U.S. —, 133 S. Ct. 1911 (2013), is available to federal habeas corpus petitioners in Indiana who have substantial claims for ineffective assistance of trial counsel that have been procedurally defaulted in state post-conviction proceedings by lack of any counsel or lack of effective counsel. Brown is entitled to an opportunity to overcome procedural default of his claim for ineffective assistance of trial counsel for failure to request a limiting instruction if he can both demonstrate ineffective assistance of post-conviction counsel and assert a substantial claim of ineffective assistance of trial counsel. We conclude that he is entitled to an evidentiary hearing.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Richard Doermer v. Kathryn Callen, et al

Case No.: 15-3734

Officials: WILLIAMS and HAMILTON, Circuit Judges, and CHANG, District Judge.*

Focus: NonProfit Governance –

This case poses several questions under the Indiana Nonprofit Corporation Act of 1991 about

the governance of nonprofit corporations in Indiana. The case pits brother against sister in a long-running dispute over control of a small family foundation established by their parents. Plaintiff Richard Doermer is a member of the board of directors of the Doermer Family Foundation, Inc. (“the Corporation”). He asserts claims in his individual capacity and derivatively on behalf of the Corporation. The defendants include his fellow board members Kathryn Callen (his sister), John Callen (his nephew), and Phyllis Alberts. Richard also named as a defendant the University of Saint Francis of Fort Wayne, Indiana, Inc. Richard seeks injunctive relief against all other board members and a money judgment for the Corporation against Kathryn and Saint Francis. The district court granted defendants’ motions to dismiss, and we affirm. Under Indiana law, only a shareholder or member of a corporation may bring a derivative action on the corporation’s behalf. Richard lacks standing to bring a derivative claim because he is neither a shareholder nor a member. In fact, the Corporation’s articles of incorporation provide that it “shall have no members.” Richard’s individual claims for money judgment likewise fail. They are properly understood as belonging to the Corporation (and so derivative in nature). Finally, all of Richard’s individual claims fail as a matter of law on their merits

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Naeem Mahmood Kohli

Case No.: 15-3481

Officials: POSNER, MANION, and WILLIAMS, Circuit Judges

Focus: Controlled Substances Act – Sufficiency of Evidence

Dr. Naeem Kohli, an Illinois physician who specialized in pain management, was convicted on multiple counts of prescribing narcotics without a legitimate medical purpose in violation of § 841(a) of the Controlled Substances Act. On appeal, he argues that the district court should have granted his motion for acquittal based on insufficient evidence. He also challenges the district court’s jury instructions and several of its evidentiary rulings at trial. We conclude that the jury’s verdict is supported by sufficient evidence and that the motion for acquittal was properly denied. We further hold that the district court’s jury instructions provided a fair and accurate summary of the law, and that its challenged evidentiary rulings were not an abuse of discretion. We therefore affirm Dr. Kohli’s conviction.

Affirmed

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7th Circuit Court of Appeals

Case Name: Columbia College Chicago v. National Labor Relations Board

Case No.: 16-2080; 16-2026

Officials: BAUER, FLAUM, and HAMILTON, Circuit Judges.

Focus: Collective Bargaining Agreement – Petition for Review

Petitioner Columbia College Chicago (“Columbia”) seeks review of a National Labor Relations Board (“NLRB”) order. The order required Columbia to engage in “effects bargaining” with the Part‐Time Faculty Association at Columbia College Chicago (“PFAC”) under the terms of the parties’ collective‐bargaining agreement (“CBA”) regarding credit‐hour changes to Columbia’s performing‐arts curriculum, and awarded bargaining expenses to PFAC. We grant Columbia’s petition for review, and grant in part and deny in part the NLRB’s application for enforcement. We thus enforce in part and vacate in part the Board’s order, and remand for further proceedings.

Enforced in part

Vacated and remanded in part

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7th Circuit Court of Appeals

Case Name: S.A.B., v. Dana J. Boente

Case No.: 15-1834; 15-3874, 16-1303

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

Focus: Immigration – Removal

The petitioner is a former member of the OLF now living in the United States. Her name is not SAB, though that is the name that appears in the briefs; those are her initials; she or her lawyers are concerned that should her name appear in the briefs in this court or in our opinion, she or a member of her family, such as her sister, who had been imprisoned by the Ethiopian government possibly in an attempt to discover SAB’s whereabouts after she’d fled the country, might be‐ come a target of the Ethiopian government. We’ll refer to her by her initials rather than her name, but it would be unrealistic to think they actually conceal her identity; for the opinions of the Immigration Court and the Board of Immigration Appeals use her full name rather than her initials to identify her, and those opinions are public documents. An Ethiopian citizen now 61 years old, SAB came to the United States in 2004 on a visitor’s visa that expired in December of that year. But rather than leave the United States she applied for asylum and alternatively for withholding of removal. When an asylum officer deemed her claims not credible, the Department of Homeland Security charged her in the Immigration Court with being “removable” (deportable) for having remained in the United States after the expiration of her visa, and therefore illegally. See 8 U.S.C. § 1227(a)(1)(B). She conceded removability, and the immigration judge designated Ethiopia as the country to which she would be removed. But she renewed her application for asylum and her alternative application for withholding of removal, basing both grounds for relief on fear that if re‐ moved to Ethiopia she would be tortured by the Ethiopian government because of her past membership (which she acknowledges) in the OLF

Petition denied

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7th Circuit Court of Appeals

Case Name: Patti Lardas v. Slavko Grcic, et al; Danny Christofalos v. Joseph E. Cohen; John Laurenc eKienlen v. Danny Christofalos; Patti Lardas & Danny Christofalos v. Slavko Grcic, et al 

Case No.: 15-1685; 15-1685; 15-1704; 16-2913; 16-4210

Officials: WOOD, Chief Judge, and EASTERBROOK and HAMILTON, Circuit Judges

Focus: Bankruptcy – Diversity Jurisdiction –

These four related appeals arise from a long‐running and acrimonious business dispute be‐ tween appellants Patti Lardas and her nephew Danny Christofalos on one side and appellees Slavko Grcic and associates on the other. Appeal Nos. 15‐1685 (Lardas I) and 15‐1704 (Co‐ hen) were consolidated for oral argument, which took place on October 28, 2015. Appeal No. 16‐4210 (Lardas II) concerns the district court’s denial of a motion by Christofalos to re‐ open proceedings in Lardas I, and we treat it as a successive appeal. Appeal No. 16‐2913 (Kienlen) is also successive to the earlier consolidated appeals. We can decide Kienlen and Lardas II without further oral argument. The briefs and record adequately present the facts and legal issues, and oral argument would not significantly aid our decision‐making process. See Fed. R. App. P. 34(a)(2)(C). We affirm the judgments and orders on appeal in Lardas I, Lardas II, and Kienlen, and we dismiss the appeal in Cohen as moot.

Affirmed as to Lardas I, Lardas II & Kienlen

Dismissed as to Cohen

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7th Circuit Court of Appeals

Case Name: John Jones Bey v. State of Indiana, et al

Case No.: 16-1589

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

Focus: Sovereign Citizenship – Taxation

John Jones Bey, who describes himself as an “Aboriginal Indigenous Moorish-American,” filed in the district court what he labeled a “Writ of Mandamus,” seeking to enjoin state and county officials from taxing real estate that he owns in Marion County, Indiana. He also asked that the defendant officials be ordered to refund the taxes that he’d paid and to compensate him for their alleged wrongs. He asked the district court to award him $11.5 billion. The court refused, and granted the defendants’ motions to dismiss, precipitating this appeal. Bey says he’s a “sovereign citizen” and therefore can’t lawfully be taxed by Indiana or its subdivisions in the absence of a contract between them and him. (See El v. AmeriCredit Financial Services, Inc., 710 F.3d 748, 750 (7th Cir. 2013), for a description of the beliefs of so-called sovereign citizens of alleged Moorish origin.) We have repeatedly rejected such claims. See United States v. Jonassen, 759 F.3d 653, 657 and note 2 (7th Cir. 2014); United States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011); United States v. Hilgeford, 7 F.3d 1340, 1342 (7th Cir. 1993); United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990). We do so in this case as well, and thus affirm the district court.

Affirmed

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7th Circuit Court of Appeals

Case Name: UInited States of America v. Ramon E. Rivera

Case No.: 16-1322

Officials: RIPPLE, KANNE, and ROVNER, Circuit Judges

Focus: Crime of Violence – Sentencing

On December 23, 2014, Rivera and three others robbed a Milwaukee bar called the Brew City Tap. They all wore masks; and three of them were armed, two with BB guns and one with a .40‐caliber handgun. They left with $857.25 Four days later, they robbed the Sky Zone Indoor Trampoline Park. This robbery was more successful than the prior one, netting them over $12,000. Nearly fifty businesses throughout the Milwaukee area suffered similar armed robberies between October 2013 and January 2015. Although various cooperating witnesses implicated Rivera in thirty of those robberies, the government sought a reckoning for only five of them. To that end, the government charged Rivera with five counts of Hobbs Act robbery under 18 U.S.C. §§ 1951(a) and 2. The government also took the position that Hobbs Act robbery constitutes a “crime of violence” as defined under 18 U.S.C. § 924(c)(3). So in addition to the five Hobbs Act robbery counts, the government tacked on five counts of brandishing a firearm in furtherance of a crime of violence under 18 U.S.C. §§ 924(c) and 2. Rivera agreed to plead guilty to two of the crime‐of‐ violence counts in exchange for the government dropping the other charges. Judge Stadtmueller accepted Rivera’s guilty plea on November 12, 2015. On February 4, 2016, Judge Stadtmueller sentenced Rivera to the mandatory minimum of thirty‐two years’ imprisonment.1 He also imposed a five‐year term of supervised re‐ lease, which he said he was “obliged” to do. (R. 196 at 24.)   Rivera timely appealed his convictions and sentence, raising two issues: (1) whether Hobbs Act robbery qualifies as a “crime of violence” under § 924(c); and (2) whether Judge Stadtmueller committed procedural error by saying he was “obliged” to impose a five‐year supervised‐release term. With respect to the first issue, we have recently decided that Hobbs Act robbery indeed qualifies as a “crime of violence” under § 924(c) because it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” United States v. Anglin, No. 15‐3625, 2017 WL 359666, at *6–7 (7th Cir. Jan. 25, 2017) (quoting 18 U.S.C. § 924(c)(3)(A)). The Hobbs Act defines robbery in relevant part as “the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property.” 18 U.S.C. § 1951(b)(1). Because one cannot commit Hobbs Act robbery without using or threatening physical force, we held that Hobbs Act robbery qualifies as a predicate for a crime‐of‐violence conviction. Anglin, 2017 WL 359666, at *7.

Affirmed

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7th Circuit Court of Appeals

Case Name: Fernando Delatorre v. United States of America

Case No.: 15-1632

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

Focus: Plea Agreement – Ineffective Assistance of Counsel

A jury convicted Fernando Delatorre of several felonies. He was sentenced to life in prison, and his conviction and sentence were affirmed on appeal. He then filed a motion to vacate, set aside, or correct his sentence, arguing that (1) the prosecutor committed misconduct by reneging on a promise to provide him with a plea agreement and (2) his pretrial counsel’s performance was constitutionally ineffective. The district court rejected these claims and denied his collateral motion.   Because Delatorre failed to raise the prosecutorial‐ misconduct claim in the district court or on direct appeal, we hold that this claim has been procedurally defaulted. We further hold that Delatorre has failed to meet the cause‐and‐ prejudice standard necessary to overcome procedural de‐ fault. We therefore do not address the merits of that claim. Finally, because Delatorre’s pretrial counsel was not deficient and because Delatorre suffered no prejudice as a result of his counsel’s performance, we reject his claim of ineffective assistance of counsel.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kristopher Craig Russell

Case No.: 2015AP2484-CR

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

Focus: Suppression of Evidence

Kristopher Craig Russell appeals a judgment of conviction, entered upon his guilty plea, for possession with intent to deliver a controlled substance. The sole issue on appeal is whether the circuit court should have suppressed the evidence that police found when they conducted a protective search of Russell’s car. Because we conclude that the search was lawful, we affirm.

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WI Court of Appeals – District IV

Case Name: Nikole Havens v. Wisconsin Department of Health Services

Case No.: 2015AP2661

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

Focus: Attorney Fees

Nikole Havens appeals from an order denying her request for attorney’s fees and costs associated with her petition for judicial review of an administrative decision. Because Havens was not a “prevailing party” within the meaning of WIS. STAT. § 814.245(3) (2015-16), we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Scott J. Kocian

Case No.: 2015AP1545-CR

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

Focus: Sentence Modification

Scott Kocian, pro se, appeals an order denying his WIS. STAT. § 974.06 (2015-16) motion for sentence modification. As explained below, Kocian has forfeited all but two of the arguments raised on appeal. We reject the arguments not otherwise forfeited and affirm the order.

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WI Court of Appeals – District II

Case Name: Laura V. Holtz v. Deborah H. Steiner

Case No.: 2015AP1859; 2016AP146

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

Focus: Due Process – Probate

Laura V. Holtz appeals from circuit court orders granting summary judgment to Deborah Steiner and Marcia Holtz (Respondents), on Laura’s objection to probate of the Last Will and Testament of Jean Holtz, objection to the validity of the Carl Holtz and Jean Holtz Living and Devolution Trust (the Trust), and two claims against Jean’s Estate (the Estate). Laura claims that she was denied due process of law and that summary judgment was inappropriate. We disagree and affirm.

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WI Court of Appeals – District III

Case Name: MillerCoors, LLC v. Millis Transfer Inc. et al

Case No.: 2015AP1894

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

Focus: Money Damages – Duty to Defend

Millis Transfer, Inc. (Millis) and its insurer, Zurich American Insurance Company (Zurich), appeal a summary judgment awarding money damages in favor of MillerCoors, LLC (MillerCoors). Millis and Zurich argue the circuit court erred in determining Millis breached its contractual duty to MillerCoors by failing to defend and indemnify MillerCoors in a negligence suit brought by one of Millis’s employees. MillerCoors cross-appeals seeking additional damages. We affirm.

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WI Court of Appeals – District III

Case Name: Kenneth N. Sortedahl v. Wisconsin Employment Relations Commission et al

Case No.: 2015AP1938

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

Focus: Contested Layoff – Sufficiency of Evidence

Kenneth Sortedahl appeals a circuit court order affirming a decision by the Wisconsin Employment Relations Commission that rejected Sortedahl’s claims contesting his layoffs from the St. Croix County District Attorney’s Office. Sortedahl contends the Commission irrationally

applied the “just cause” standard governing his layoffs. He also argues certain of the Commission’s factual findings were not supported by substantial evidence. Applying great weight deference, we conclude the Commission reached a rational decision. We also conclude there was sufficient evidence to sustain its factual findings. Accordingly, we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jamie Dean Jardine

Case No.: 2015AP2285

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

Focus: Sentence Modification – General Appeal

Jamie Jardine, pro se, appeals orders denying his postconviction motions. The circuit court denied Jardine’s motions for: (1) sentence modification; (2) reconsideration of the court’s order denying his sentence modification motion; (3) vacation of the order denying his motion for reconsideration; and (4) judicial recusal. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v, Gabriel Diaz

Case No.: 2016AP107

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

Focus: Court Error

Gabriel Diaz appeals an order denying his postconviction motion for a new trial on a charge that he sexually assaulted his girlfriend’s son, J.A.N. He argues: (1) the circuit court improperly allowed the victim to testify that Diaz similarly assaulted him ten to fifty times, even though

the victim could only remember details regarding two of the incidents; (2) Diaz’s right to be present during voir dire was violated because no interpreter was present during part of the voir dire; and (3) he is entitled to a new trial because DNA evidence used against him was destroyed during testing by the State. We reject these arguments and affirm the order.

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WI Court of Appeals – District II

Case Name: Laura V. Holtz v. Deborah H. Steiner

Case No.: 2015AP1859; 2016AP146

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

Focus: Probate – Claim Against Estate

Laura V. Holtz appeals from circuit court orders granting summary judgment to Deborah Steiner and Marcia Holtz (Respondents), on Laura’s objection to probate of the Last Will and Testament of Jean Holtz, objection to the validity of the Carl Holtz and Jean Holtz Living and Devolution Trust (the Trust), and two claims against Jean’s Estate (the Estate). Laura claims that she was denied due process of law and that summary judgment was inappropriate. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: American Express Centurion Bank v. Tim Hagen-Foley

Case No.: 2016AP802

Officials: Neubauer, C.J.

Focus: Motion to Vacate

American Express Centurion Bank (AMEX) appeals from an order denying its motion to vacate a judgment entered upon its default in failing to appear at a scheduled trial. AMEX contends that it demonstrated “good cause” to warrant reopening the default judgment. We disagree and affirm.

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WI Court of Appeals – District IV

Case Name: Diane Flores et al v. The Cincinnati Insurance Company

Case No.: 2015AP2407

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

Focus: Personal Injury – Breach of Contractual Duty

Diane Flores appeals a circuit court order granting summary judgment in favor of Dodge County Antique Power Club, a nonprofit organization, and its insurer, The Cincinnati Insurance Company, in this personal injury case. For the reasons set forth below, we affirm the order of the circuit court.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Kelly D. Hendrickson

Case No.: 2015AP2495-CR

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

Focus: Sufficiency of Evidence

Kelly Hendrickson appeals a postconviction order that granted him a new trial, but denied his motion to vacate the conviction and dismiss the complaint due to insufficient evidence at trial. The only issue before us is sufficiency of the evidence. We conclude that the evidence is sufficient, and we affirm.

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WI Court of Appeals – District IV

Case Name: Paulina S. Easterling v. Labor and Industry Review Commission, et al

Case No.: 2016AP190

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

Focus: Unemployment Benefits – Termination

Paulina S. Easterling appeals a circuit court order that affirmed the decision of the Labor and Industry Review Commission (LIRC) denying Easterling’s claim for unemployment benefits on the basis of substantial fault. As pertinent to our resolution of this appeal, LIRC based its decision on a finding that the conduct of Easterling that resulted in her termination was intentional, and not an “inadvertent error[],” as that phrase is used in WIS. STAT. § 108.04(5g) (2015-16).1 For the reasons discussed below, we reverse the order of the circuit court and remand for further proceedings.

Recommended for publication

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Tyrone T. Robinson

Case No.: 2016AP447

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

Focus: Ineffective Assistnace of Counsel

Tyrone T. Robinson, pro se, appeals an order denying his WIS. STAT. § 974.06 (2015-16)1 motion for postconviction relief. Robinson argues that his postconviction counsel was ineffective for failing to challenge the effectiveness of his trial counsel and that the circuit court erroneously denied his motion without conducting an evidentiary hearing. We reject Robinson’s arguments and affirm.

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WI Court of Appeals – IV

Case Name: Revolution Processing Solutions, Inc.

Case No.: 2016AP612

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

Focus: Court Errors

Collins Financial, LLC, and its sole owner, Nicholas Collins (collectively the “Collins defendants”), appeal a circuit court judgment in favor of Revolution Processing Solutions, Inc. The parties’ dispute arises out of a contract between Collins Financial and Revolution Processing. The Collins defendants argue that the circuit court erred by (1) relying on extrinsic evidence to construe unambiguous contract language, (2) holding Nicholas Collins personally liable for damages, (3) awarding punitive damages against Nicholas Collins, (4) violating the election of remedies doctrine, (5) awarding duplicate damages, (6) declaring that the judgment was non-dischargeable in bankruptcy, and (7) ordering the surrender of funds that belonged to Collins Financial. For the reasons below, we affirm.

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WI Court of Appeals – IV

Case Name: State of Wisconsin v. William J. Drake, II

Case No.: 2016AP724-CR

Officials: Sherman, J.

Focus: Ineffective Assistance of Counsel

William Drake, II, appeals a judgment of conviction for retail theft and disorderly conduct, contrary to WIS. STAT. §§ 943.50(1m)(b) and 947.01, and an order of the circuit court denying his postconviction motion to withdraw his plea on the grounds of ineffective assistance of counsel. Drake contends that his trial counsel was ineffective for failing to determine prior to Drake entering his plea whether Drake was eligible for Huber privileges and in failing to inform Drake that he was not guaranteed to receive Huber privileges for the entire duration of his incarceration. For the reasons discussed below, I affirm.

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