Weekly Case Digests — July 3 to July 7, 2017

United States Supreme Court

Case Name: TURNER ET AL. v. UNITED STATES

Case No.: 15-1503

Focus: Withheld Evidence

The withheld evidence is not material under Brady.

The Government does not contest petitioners’ claim that the withheld evidence was “favorable to the defense.” Petitioners and the Government, however, do contest the materiality of the undisclosed Brady information. Such “evidence is ‘material’ . . . when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Cone v. Bell, 556 U. S. 449, 469–470. “A ‘reasonable probability’ of a different result” is one in which the suppressed evidence “‘undermines confidence in the outcome of the trial.’” Kyles v. Whitley, 514 U. S. 419, 434. To make that determination, this Court “evaluate[s]” the withheld evidence “in the context of the entire record.” United States v. Agurs, 427 U. S. 97, 112.

Affirmed

Dissenting: Kagan, Ginsburg

Concurring:

United States Supreme Court

Case Name: MASLENJAK v. UNITED STATES

Case No.: 16-309

Focus: False statement under oath in naturalization proceeding

The text of §1425(a) makes clear that, to secure a conviction, the Government must establish that the defendant’s illegal act played a role in her acquisition of citizenship.

To “procure . . . naturalization” means to obtain it. And the adverbial phrase “contrary to law” specifies how a person must procure naturalization so as to run afoul of the statute: illegally. Thus, someone “procure[s], contrary to law, naturalization” when she obtains citizenship illegally. As ordinary usage demonstrates, the most natural understanding of that phrase is that the illegal act must have somehow contributed to the obtaining of citizenship. To get citizenship unlawfully is to get it through an unlawful means—and that is just to say that an illegality played some role in its acquisition.

Vacated and remanded

Dissenting:

Concurring: Gorsuch, Thomas, Alito

United States Supreme Court

Case Name: JAE LEE v. UNITED STATES

Case No.: 16-327

Focus: Ineffective Assistance of Counsel

Lee has demonstrated that he was prejudiced by his counsel’s erroneous advice.

When a defendant claims that his counsel’s deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U. S. 52, 59.

Reversed and remanded

Dissenting: Thomas, Alito

Concurring:

United States Supreme Court

Case Name: MURR ET AL. v. WISCONSIN ET AL.

Case No.: 15-214

Focus: Analysis of property

The State Court of Appeals was correct to analyze petitioners’ property as a single unit in assessing the effect of the challenged governmental action.

The Court’s Takings Clause jurisprudence informs the analysis of this issue. Regulatory takings jurisprudence recognizes that if a “regulation goes too far it will be recognized as a taking.” Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415. This area of the law is characterized by “ad hoc, factual inquiries, designed to allow careful examination and weighing of all the relevant circumstances.” Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U. S. 302, 322.

Affirmed

Dissenting: Roberts, Thomas, Alito

Concurring:

United States Supreme Court

Case Name: PERRY v. MERIT SYSTEMS PROTECTION BOARD

Case No.: 16-399

Focus: Mixed case on jurisdictional grounds

The proper review forum when the MSPB dismisses a mixed case on jurisdictional grounds is district court.

The Government argues that employees must split their mixed claims, appealing MSPB nonappealability rulings to the Federal Circuit while repairing to the district court to adjudicate their discrimination claims. Perry counters that the district court alone can resolve his entire complaint. Perry advances the more sensible reading of the statutory prescriptions.

Reversed and remanded

Dissenting: Gorsuch, Thomas

Concurring:

United States Supreme Court

Case Name: TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v. COMER, DIRECTOR, MISSOURI DEPARTMENT OF NATURAL RESOURCES

Case No.: 15-577

Focus: Free exercise of religion

The Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status.

This Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion. Thus, in McDaniel v. Paty, 435 U. S. 618, the Court struck down a Tennessee statute disqualifying ministers from serving as delegates to the State’s constitutional convention. A plurality recognized that such a law discriminated against McDaniel by denying him a benefit solely because of his “status as a ‘minister.’ ” Id., at 627. In recent years, when rejecting free exercise challenges to neutral laws of general applicability, the Court has been careful to distinguish such laws from those that single out the religious for disfavored treatment. See, e.g., Lyng v. Northwest Indian Cemetery Protective Assn., 485 U. S. 439; Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872; and Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520. It has remained a fundamental principle of this Court’s free exercise juris- prudence that laws imposing “special disabilities on the basis of . . . religious status” trigger the strictest scrutiny. Id., at 533.

Reversed and remanded

Dissenting: Sotomayor, Ginsburg

Concurring: Thomas, Gorsuch

United States Supreme Court

Case Name: CALIFORNIA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM v. ANZ SECURITIES, INC.ET AL.

Case No.: 16-373

Focus: Statutes of limitations – Securities

Petitioner’s untimely filing of its individual complaint more than three years after the relevant securities offering is ground for dismissal.

The two categories of statutory time bars—statutes of limitations and statutes of repose—each have “a distinct purpose.” CTS Corp. v. Waldburger, 573 U. S. ___, ___. Statutes of limitations are designed to encourage plaintiffs “‘to pursue diligent prosecution of known claims,’ ” id., at ___, while statutes of repose “effect a legislative judgment that a defendant should ‘be free from liability after the legislatively determined period of time,’ ” id., at ___. For this reason, statutes of limitations begin to run “when the cause of action accrues,” while statutes of repose begin to run on “the date of the last culpable act or omission of the defendant.”

Affirmed

Dissenting: Ginsburg, Breyer, Sotomayor, Kagan

Concurring:

United States Supreme Court

Case Name: DAVILA v. DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Case No.: 16-6219

Focus: Ineffective Assistance of Counsel

The ineffective assistance of postconviction counsel does not pro- vide cause to excuse the procedural default of ineffective-assistance- of-appellate-counsel claims.

In Coleman v. Thompson, 501 U. S. 722, this Court held that attorney error committed in the course of state postconviction proceedings—for which the Constitution does not guarantee the right to counsel—cannot supply cause to excuse a procedural default that occurs in those proceedings. Id., at 755. In Martinez, the Court announced an “equitable . . . qualification” of Coleman’s rule that applies where state law requires a claim of ineffective assistance of trial counsel to be raised in an “initial-review collateral proceeding,” rather than on direct appeal. 566 U. S., at 16, 17. In those situations, “a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if” the default results from the ineffective assistance of the prisoner’s counsel in the collateral proceeding. Id., at 17. The Court clarified in Trevino that Martinez’s exception also applies where the State’s “procedural framework, by reason of its design and operation, makes it unlikely in a typical case that a defendant will have a meaningful opportunity to raise” the claim on direct appeal. 569 U. S., at ___.

Affirmed

Dissenting: Breyer, Ginsburg, Sotomayor, Kagan

Concurring:

United States Supreme Court

Case Name: JESUS C. HERNANDEZ, ET AL., PETITIONERS v. JESUS MESA, JR., ET AL.

Case No.: 15-118

Focus: Fourth Amendment violation

The Court of Appeals, affirming the District Court, held (among other things) that Hernández had no Fourth Amendment rights because he was not a citizen of the United States, he was “on Mexican soil at the time he was shot,” and he “had no ‘significant voluntary connection’ to the United States.

Hernandez v. United States, 785 F. 3d 117, 119 (2015) (per curiam) (quoting United States v. Verdugo-Urquidez, 494 U. S. 259, 271 (1990)). I would reverse the Court of Appeals’ Fourth Amendment holding. And, in my view, that reversal would ordinarily bring with it the right to bring an action for damages under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). See Wood v. Moss, 572 U. S. ___, ___ (2014) (slip op., at 11) (Bivens actions lie for Fourth Amendment violations); Tennessee v. Garner, 471 U. S. 1, 11 (1985) (officer’s application of lethal force when there is no immediate threat to self or others violates the Fourth Amendment).

Vacated and remanded

Dissenting: Breyer, Ginsburg

Concurring:

United States Supreme Court

Case Name: MARISAN. PAVAN, ET AL., v. NATHANIEL SMITH

Case No.: 16-992

Focus: Same-sex marriage – Birth Certificate

The Arkansas Supreme Court’s decision, we conclude, denied married same-sex couples access to the “constellation of benefits that the Stat[e] ha[s] linked to marriage.” Obergefell, 576 U. S., at ___ (slip op., at 17).

As already explained, when a married woman in Arkansas conceives a child by means of artificial insemination, the State will—indeed, must—list the name of her male spouse on the child’s birth certificate. See §20–18–401(f)(1); see also §9–10–201; supra, at 2. And yet state law, as interpreted by the court below, allows Arkansas officials in those very same circumstances to omit a married woman’s female spouse from her child’s birth certificate. See 505 S. W. 3d, at 177–178. As a result, same-sex parents in Arkansas lack the same right as opposite-sex parents to be listed on a child’s birth certificate, a document often used for important transactions like making medical decisions for a child or enrolling a child in school. See Pet. for Cert. 5–7 (listing situations in which a parent might be required to present a child’s birth certificate).

Reversed and remanded

Dissenting: Gorsuch, Thomas, Alito

Concurring:

United States Supreme Court

Case Name: DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL. v. INTERNATIONAL REFUGEE ASSISTANCE

Case No.: 16-1436, 16-1540

Focus: Entry of foreign nationals

These cases involve challenges to Executive Order No. 13780, Protecting the Nation From Foreign Terrorist Entry Into the United States. The order alters practices concerning the entry of foreign nationals into the United States by, among other things, suspending entry of nationals from six designated countries for 90 days. Respondents challenged the order in two separate lawsuits. They obtained preliminary injunctions barring enforcement of several of its provisions, including the 90-day suspension of entry. The injunctions were upheld in large measure by the Courts of Appeals.

Dissenting:

Concurring:

WI Supreme Court Digests

WI Supreme Court

Case Name: Margaret Pulera v. Town of Richmond and Town of Johnstown

Case No.: 2017 WI 61

Focus: Highway orders – Third-day period

Margaret Pulera (Pulera) appeals dismissals of the petitions for certiorari review of highway orders recorded in Rock and Walworth Counties. The issue certified is: what event triggers the thirty-day period under Wis. Stat. § 68.13(1)(2013-14)4 during which certiorari review may be obtained for a town board’s highway order. To address this issue, we must interpret the terms of § 68.13(1), the statute affording certiorari review, in accord with Wis. Stat. § 82.15, the statute governing appeals of highway orders. We conclude that the thirty-day period during which certiorari review is available for a town board’s highway order to lay out, alter or discontinue a highway begins to run on the date that the highway order is recorded by the register of deeds.6 This interpretation best comports with the language and structure of Wis. Stat. § 68.13 and Wis. Stat. § 82.15. And, in addition, it provides aggrieved persons and parties a date certain for commencement of the thirty-day period during which judicial review of a highway order is available.

Reversed and remanded

Dissent: A.W. Bradley, Abrahamson

Concurring: R.G. Bradley

WI Supreme Court

Case Name: State of Wisconsin v. Heather Steinhardt

Case No.: 2017 WI 62

Focus: Ineffective Assistance of Counsel

Steinhardt argues that her convictions for both failure to protect a child from sexual assault contrary to Wis. Stat. § 948.02(3) (2011-12) and first-degree sexual assault of a child under 13 as a party to a crime contrary to Wis. Stat. §§ 948.02(1)(e) and 939.05 violated the Double Jeopardy Clauses of the United States Constitution and Wisconsin Constitution. Therefore, she asks this court to vacate her conviction for failure to protect a child. In addition, she argues that she received ineffective assistance of counsel because her counsel never alerted her to the potential double jeopardy claim. She asks this court to remand her case for a hearing to determine whether her counsel was ineffective. We hold that Steinhardt’s conviction for failure to protect a child from sexual assault does not violate double jeopardy because failure to protect a child from sexual assault and first-degree sexual assault of a child under 13 as a party to a crime are not identical in fact. Moreover, we determine that Steinhardt failed to overcome the presumption that the legislature intended cumulative punishments for her conduct, given that her conduct consisted of two separate acts. We also hold that Steinhardt’s claim of ineffective assistance of counsel fails because her counsel could not be deficient for failing to advise her of a potential double jeopardy claim that does not exist.

Affirmed

Dissent: Abrahamson, A.W. Bradley

Concurring:

WI Supreme Court

Case Name: State of Wisconsin v. Keimonte Antonie Wilson, Sr.

Case No.:2017 WI 63

Focus: Postconviction relief

Petitioner, Keimonte Antonie Wilson, Sr. (“Wilson”), seeks review of a court of appeals decision affirming a circuit court judgment of conviction and order denying his postconviction motion. The court of appeals determined that the circuit court correctly interpreted the statutory procedure for subpoenaing witnesses in a criminal case. Additionally, it concluded that Wilson did not receive ineffective assistance of counsel because he was not prejudiced by the failure to obtain a witness’s testimony at a suppression hearing.

Reversed and remanded

Dissent: Ziegler, Gableman

Concurring:

WI Supreme Court

Case Name: State of Wisconsin v. Lazaro Ozuna

Case No.: 2017 WI 64

Focus: Expungement

We review an unpublished decision of the court of appeals, State v. Ozuna, No. 2015AP1877-CR, unpublished slip op. (Wis. Ct. App. April 13, 2016), affirming the Walworth County circuit court’s order denying expungement of the defendant’s misdemeanor convictions. We affirm the decision of the court of appeals and hold that the circuit court properly concluded that the defendant was not entitled to expungement. We do so because the defendant did not meet the statutory requirements for expungement. Specifically, in order to be entitled to expungement, a probationer must “satisf[y] the conditions of probation.” Wis. Stat. § 973.015(1m)(b) (2013-14). In this case, when the Department of Corrections (“DOC”) notified the circuit court that the defendant had completed probationary supervision, it simultaneously notified the court that the defendant had violated the court’s expressly ordered condition that he neither possess nor consume alcohol. Consequently, the circuit court ruled that the defendant was not entitled to expungement, and the court of appeals affirmed. We affirm the decision of the court of appeals.

Affirmed

Dissent: A.W. Bradley, Abrahamson

Concurring:

WI Supreme Court

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

Case No.:2017 WI 65

Focus: Wisconsin Fair Dealership Law – Termination or nonrenewal

This is a review of an unpublished decision of the court of appeals, Benson v. City of Madison, No. 2015AP2366, unpublished slip op. (Wis. Ct. App. Aug. 25, 2016), which affirmed the Dane County circuit court’s judgment dismissing a lawsuit filed by the petitioners against the City of Madison (“the City”) pursuant to the Wisconsin Fair Dealership Law (“the WFDL”), a statute that governs, among other things, the termination or nonrenewal of specified types of business relationships. See generally Wis. Stat. ch. 135 (“Dealership Practices”) (2013-14). We conclude that the WFDL applies to the City; that the relationships between the Golf Pros and the City are “dealerships” under the WFDL; that the Golf Pros’ lawsuit is not time-barred; and that the City is not immune from the lawsuit. Consequently, we reverse the decision of the court of appeals and remand for further proceedings consistent with this opinion.

Reversed and remanded

Dissent: Abrahamson, A.W. Bradley

Concurring: Kelly

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Philip A. Shepherd

Case No.: 2017 WI 66

Focus: Disciplinary proceeding

We review a report filed by Referee John B. Murphy concluding that Attorney Philip A. Shepherd committed ten counts of misconduct as alleged in the Office of Lawyer Regulation’s (OLR) complaint. The referee determined that a public reprimand was appropriate discipline for Attorney Shepherd’s misconduct. The referee also recommended that Attorney Shepherd should be directed to pay restitution in two client matters and should be assessed the full costs of the proceeding, which are $1,887.96 as of March 8, 2017. After careful review of the matter, we conclude that the referee’s findings of fact are supported by clear, satisfactory, and convincing evidence. We adopt the referee’s conclusions of law. We agree that the appropriate discipline for Attorney Shepherd’s misconduct is a public reprimand, and we agree that Attorney Shepherd should be required to pay restitution as recommended, and shall bear the full costs of this proceeding.

Affirmed

Dissent: Abrahamson, A.W. Bradley

Concurring: Abrahamson, A.W. Bradley

WI Supreme Court

Case Name: The Honorable William M. Gabler, Sr., v. Crime Victims Rights Board

Case No.: 2017 WI 67

Focus: Constitutionality

In creating an executive branch entity with authority to pass judgment and impose discipline on a judge’s exercise of core judicial powers, the Wisconsin legislature violates the Wisconsin Constitution’s structural separation of powers and invades a domain recognized for over two hundred years as the exclusive province of the judiciary. Neither the executive branch nor the legislature may reprimand or otherwise discipline a Wisconsin judge. The Wisconsin Constitution reserves such disciplinary powers for the supreme court alone. Nor may the legislature empower the executive branch to threaten any judicial officer with repercussions for exercising constitutional power vested exclusively in the judiciary. Encroachment on judicial power degrades the judicial independence that serves as a bulwark protecting the people against tyranny. By statutorily authorizing executive action against the judiciary, the legislature unconstitutionally conferred power on an executive board to impair, improperly influence, and regulate the judiciary’s exercise of its constitutional duties. Specifically, the legislature transgressed the constitutional boundaries of its powers by authorizing the Crime Victims Rights Board (the “Board”) to investigate and adjudicate complaints against judges, issue reprimands against judges, and seek equitable relief and forfeitures through civil actions against judges. We therefore affirm the decision of the circuit court and hold that Wis. Stat. §§ 950.09(2)(a), (2)(c)-(d) and (3) and 950.11 (2015-16) are unconstitutional with respect to judges; accordingly, the Board’s actions against Judge William M. Gabler are void.

Affirmed

Dissent: Abrahamson

Concurring: Abrahamson

WI Supreme Court

Case Name: State of Wisconsin v. Raymond L. Nieves

Case No.: 2017 WI 69

Focus: Court Error – Testimony

We review a decision of the court of appeals vacating the judgment of conviction of Raymond Nieves (Nieves) and remanding for a new trial. Nieves was convicted of first-degree intentional homicide, as a party to the crime and with the use of a dangerous weapon and attempted first-degree intentional homicide, as a party to the crime and with the use of a dangerous weapon. Nieves’ argument on appeal is two-fold. First, Nieves argues the circuit court erred when it denied his pretrial motion to sever his trial from the trial of his co-defendant, Johnny Maldonado (Maldonado). Nieves contends the circuit court’s failure to sever the trials and the subsequent admission of Maldonado’s inculpatory statements violated his rights under Bruton v. United States, 391 U.S. 123 (1968) and Wis. Stat. § 971.12(3) (2009-10). Second, Nieves contends that the circuit court erred in admitting the statement of “Boogie Man” because it was inadmissible hearsay. We conclude that Crawford v. Washington, 541 U.S. 36 (2004) and its progeny limited the application of the Bruton doctrine to instances in which a co-defendant’s statements are testimonial. Therefore, Bruton is not violated by the admission of a non-testifying co-defendant’s statements that are nontestimonial. In the present case, Maldonado’s statements were nontestimonial, and therefore Nieves’ confrontation rights were not violated. Accordingly, the circuit court did not err in denying Nieves’ motion to sever the trials.

Reversed and remanded

Dissent: A.W. Bradley, Abrahamson

Concurring:

WI Supreme Court

Case Name: State of Wisconsin ex rel. John Krueger v. Appleton Area School District Board of Education et al.

Case No.: 2017 WI 70

Focus: Wisconsin’s open meeting law

This case requires us to decide whether the Appleton Area School District’s Communications Arts 1 Materials Review Committee (“CAMRC”) was a governmental body subject to Wisconsin’s open meetings law. John Krueger, the parent of a child who attended school in the District, sued CAMRC and the Appleton Area School District Board of Education (the “Board”), alleging that CAMRC failed to comply with the open meetings law. The Outagamie County circuit court granted summary judgment in favor of the Board and CAMRC, concluding that CAMRC was not subject to the open meetings law. We now review the unpublished decision of the court of appeals that affirmed the circuit court’s grant of summary judgment. We reverse the decision of the court of appeals and hold that CAMRC met the definition of “governmental body” under the open meetings law and therefore was subject to its terms. See Wis. Stat. § 19.82(1) (2011-12). Where a governmental entity adopts a rule authorizing the formation of committees and conferring on them the power to take collective action, such committees are “created by . . . rule” under § 19.82(1) and the open meetings law applies to them. Here, the Board’s Rule 361 provided that the review of educational materials should be done according to the Board-approved Assessment, Curriculum, & Instruction Handbook (the “Handbook”). The Handbook, in turn, authorized the formation of committees with a defined membership and the power to review educational materials and make formal recommendations for Board approval. Because CAMRC was formed as one of these committees, pursuant to authority delegated to it by the Board by means of Rule 361 and the Handbook, it was “created by . . . rule” and therefore was a “governmental body” under § 19.82(1).

Reversed and remanded

Dissent:

Concurring: Abrahamson, A.W. Bradley

WI Supreme Court

Case Name: The Segregated Account of Ambac Assurance Corporation, et al., v. Countrywide Home Loans, Inc.,

Case No.: 2017 WI 71

Focus: Jurisdiction – Foreign corporation

This case implicates the authority of Wisconsin courts to exercise general jurisdiction over a foreign corporation. Countrywide Home Loans, Inc. petitioned this court for review of an unpublished decision of the court of appeals, which held that Countrywide consented to general personal jurisdiction in Wisconsin when it appointed a registered agent pursuant to Wis. Stat. § 180.1507 (2015-16). Because the text of § 180.1507 does not even mention jurisdiction, much less consent, Countrywide’s compliance with the statute does not, on its own, confer jurisdiction. We therefore hold that compliance with § 180.1507 does not subject Countrywide to general jurisdiction in Wisconsin; accordingly, we reverse the decision of the court of appeals and remand the matter to the court of appeals for further proceedings consistent with this opinion.

Reversed and remanded

Dissent: A.W. Bradley, Abrahamson

Concurring:

WI Supreme Court

Case Name: Tracie L. Flug v. Labor and Industry Review Commission, et al.

Case No.: 2017 WI 72

Focus: Workers compensation – Preexisting condition

Tracie L. Flug suffered from two medical conditions——a soft-tissue strain, and a degenerative disc disease. The first was work-related (and has since resolved), the second is not. She underwent surgery in the belief it was necessary to treat her work-related soft-tissue strain. In actuality, it was treating the unrelated degenerative disc disease. The procedure left her with a permanent partial disability. Ms. Flug tells us Wal-Mart (her employer) must compensate her for this permanent partial disability because she believed, in good-faith, that the disability-causing surgery was necessary to treat her work- related condition. We hold today that an employee is not eligible for benefits under Wis. Stat. § 102.42(1m) if the disability-causing treatment was directed at treating something other than the employee’s compensable injury. Because Ms. Flug’s surgery treated her pre-existing condition, not her compensable injury, her claim must be disallowed. We reverse the court of appeals because it should have affirmed the Commission’s decision.

Reversed

Dissent: Roggensack, A.W. Bradley, Abrahamson

Concurring:

WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jackie E. Lott

Case No.: 2015AP1857

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

Focus: Court Error – Competency

Jackie Lott, pro se, appeals an order denying his request for a competency evaluation Lott argues the circuit court erred by failing to order competency proceedings under WIS. STAT. § 971.14. We reject Lott’s arguments and affirm the order.

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Brandon L. Hilgenberg

Case No.: 2015AP2586-CR

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

Focus: Ineffective Assistance of Counsel – Evidentiary Rulings

Brandon Hilgenberg appeals judgments of conviction, entered following a jury trial, for three drug-related crimes (two felonies and one misdemeanor), as well as an order denying his postconviction motion. He challenges certain of the circuit court’s evidentiary rulings, argues his attorney rendered constitutionally ineffective assistance, and asserts the evidence was insufficient to convict him of possession of drug paraphernalia. The State concedes Hilgenberg’s conviction for possession of drug paraphernalia cannot stand. We therefore reverse the judgment of conviction separately entered for that count and the associated portion of the postconviction order, and we remand with directions that the circuit court vacate that judgment and dismiss that charge. In all other respects, we reject Hilgenberg’s arguments and affirm.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Nathaniel Justin Taylor, Jr.

Case No.: 2016AP68

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

Focus: Ineffective Assistance of Counsel

Nathaniel Justin Taylor, Jr., appeals a judgment convicting him of one count of felon in possession of a firearm and one count of possession of a firearm while subject to a domestic abuse injunction. See WIS. STAT. § 941.29(2)(a) & (e) (2013-14). He also appeals the order denying his postconviction motion without a hearing. Taylor argues that he is entitled to a new trial because he received ineffective assistance from his trial counsel, or, alternatively, in the interest of justice. We reject these claims and affirm.

WI Court of Appeals – District

Case Name: State of Wisconsin v. Tyshun DeMichael Young

Case No.: 2016AP657-CR

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

Focus: Court Error – Testimony

Tyshun DeMichael Young appeals from a judgment of conviction, entered on a jury verdict, for one count of attempted first- degree intentional homicide and one count of first-degree recklessly endangering safety with use of a dangerous weapon. Young was charged in connection with a shooting on November 10, 2013, that injured the targeted person, Adam, and his sister, Beth, who was standing nearby. Young seeks to have his conviction vacated on the grounds that the trial court erred when it permitted the jury to hear testimony that exactly one year prior to Adam’s shooting, Adam had been present when Young’s brother, Wendall Watson (Wendall), was killed in a shooting. Young argues this is error because the correlation to the one-year anniversary is irrelevant and because the risk of unfair prejudice outweighs any probative value. We conclude that the trial court applied the proper standard of law to the facts of this case, and its decision to allow the jury to hear about the shooting that occurred on the same day the prior year was reasonable. We further conclude that even if the decision was error, the error was harmless. Therefore we affirm.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Lamont Donnell Sholar

Case No.: 2016AP897

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

Focus: Ineffective Assistance of Counsel

Lamont Donnell Sholar appeals from a judgment of conviction, following a jury trial, involving five counts of “sex trafficking” and one count of sexual assault. He also appeals an order denying his postconviction motion for relief on the “sex trafficking” counts This is Sholar’s second appeal regarding his conviction. Previously, we reversed the order denying his postconviction motion and remanded the action for a Machner hearing. See State v. Sholar (Sholar I), No. 2014AP1945, unpublished slip op. ¶¶33, 40 (June 30, 2015). On this appeal Sholar argues that the Machner court erred in its interpretation of Sholar I. He also contends that the outcome of his trial on all six counts was prejudiced because trial counsel was ineffective in allowing an entire exhibit including approximately 1400 text messages and photographs of women and girls in suggestive poses to be given to the jury. ¶3 After holding a Machner hearing, the Machner court found that although the trial counsel was deficient in allowing the photos and texts to be given to the jury, Sholar suffered only prejudice with respect to the one charge of second degree sexual assault, not with respect to the remaining charges. This appeal followed. For the reasons stated below we agree with the Machner court and affirm.

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jessica R. Townsend

Case No.: 2016AP1470-CR

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

Focus: Court Error – Motion to Suppress

Jessica Townsend appeals a judgment convicting her of fourth-offense operating a motor vehicle while intoxicated. She contends the arresting officer lacked legal justification to stop her vehicle and, therefore, the circuit court erred when it denied her motion to suppress evidence of her intoxication. Because we conclude the officer had sufficient reasonable suspicion that the driver was operating the vehicle while intoxicated, we affirm the judgment.

WI Court of Appeals – District III

Case Name: State of Wisconsin ex rel. Don M. Summers, v. Jon E. Litscher

Case No.: 2016AP1552

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

Focus: Ineffective Assistance of Counsel – Habeas Corpus

Don Summers appeals an order denying his petition for a writ of habeas corpus following revocation of his probation and extended supervision. Summers argues the attorney who represented him at his revocation hearing provided ineffective assistance. We disagree and affirm.

WI Court of Appeals – District II

Case Name: State of Wisconsin v. DeAnthony K. Muldrow

Case No.: 2016AP740-CR

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

Focus: Plea Withdrawal

DeAnthony K. Muldrow pled guilty to third- degree sexual assault and sexual assault of a child under sixteen years of age. Nothing in the plea colloquy, however, informed him of the possibility of lifetime GPS monitoring as a consequence of his conviction. Muldrow now seeks plea withdrawal as a matter of right on the grounds that lifetime GPS monitoring is a “punishment” that he must be informed of, the failure of which rendered his plea unknowing and unintelligent in violation of his constitutional rights. The circuit court denied Muldrow’s motion for plea withdrawal, and we affirm.

Recommended for Publication

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Angelo M. Reynolds

Case No.: 2016AP420-CR

Officials: Sherman, J.

Focus: Court Error – Motion to Suppress – PBT

Angelo M. Reynolds appeals from a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant, third offense, contrary to WIS. STAT. § 346.63(1). Reynolds contends the circuit court erred in denying his motion to suppress the results of his preliminary breath test (PBT) on the basis that the officer who administered the test lacked probable cause sufficient to request the test. I affirm.

WI Court of Appeals – District IV

Case Name: Communications Products Corporation, v. American Trust and Savings Bank, et al.

Case No.: 2016AP844

Officials: Lundsten, Sherman and Blanchard, JJ.

Focus: Claim Preclusion

Communications Products Corporation appeals a judgment of the circuit court granting summary judgment in favor of American Trust & Savings Bank, Jeffrey Vorwald, Thomas Utzig, Michael Polsky, and Beck, Chaet, Bamberger & Polsky, S.C., the law firm in which Polsky is a shareholder (collectively, “the Respondents”). Communications Products brought suit against the Respondents, alleging numerous claims against the Respondents, both individually and collectively. The circuit court granted summary judgment in favor of the Respondents on the basis that Communications Products’ claims are barred by both claim preclusion and issue preclusion, and because the statute of limitations has run on the claims. For the reasons discussed below, we conclude Communications Products claims are barred by claim preclusion and, therefore, affirm summary judgment.

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jason Wendt

Case No.: 2016AP1023-CR

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

Focus: Court Error – Child Support

After a jury trial, the circuit court entered judgment convicting Jason Wendt of 10 counts of felony failure to pay child support. Wendt argues that the circuit court made two errors during the trial, both relating to Wendt’s alleged inability to provide support. First, Wendt argues that the court erred by refusing to submit to the jury the statutory affirmative defense of inability to provide support. Second, Wendt argues that the court relieved the State of its burden to prove intent by instructing the jury that this defense was not at issue. We reject these arguments and, accordingly, we affirm the judgment.

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Benjamin Schneller

Case No.: 2016AP2474-CR

Officials: Sherman, J.

Focus: Motion to Suppress – OWI

Benjamin Schneller appeals a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant (OWI), third offense, contrary to WIS. STAT. § 346.63(1)(a), and resisting an officer, contrary to WIS. STAT. § 946.41(1). Schneller contends that the results of his blood sample should have been suppressed because the warrant authorized the collection of a blood sample, but did not separately authorize the testing of the sample. Schneller argues that testing of the blood sample was a separate search and that the warrant authorizing the taking of his blood must have also specifically authorized the testing of that blood, or an additional warrant authorizing the testing of his blood must have been obtained. I affirm for the reasons discussed below.

WI Court of Appeals – District I

Case Name: Sears, Roebuck and Co., v. Bayshore Town Center, LLC

Case No.: 2015AP1381

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

Focus: Negligence and Breach of Contract

Plaintiff Sears, Roebuck and Co. appeals from an order granting summary judgment to defendants on negligence and breach of contract claims related to flooding at its Glendale store. Defendants are the Glendale store’s current and prior landlords and their leasing agent (the landlord defendants), the project’s developer (the developer), and the project’s construction manager.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. John Spooner

Case No.: 2015AP2089-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Court Error – Venue and Evidence

John Spooner appeals from a judgment of conviction, entered upon a jury’s verdict, on one count of first-degree intentional homicide with use of a dangerous weapon. He claims that the trial court erred in refusing to change venue; that insufficient evidence supports the jury’s finding of guilt; that the trial court erred in refusing to give a particular jury instruction; and that the real controversy was not fully tried. We reject these arguments and affirm the judgment.

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Steven F. Zastrow

Case No.: 2015AP2182-CRAC

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

Focus: DOC Error – Sentence Calculation

Steven Zastrow appeals an order denying his motion for postconviction relief. He argues the Department of Corrections (DOC) erroneously calculated the date of his release to extended supervision when it determined his prison sentence in Outagamie County case No. 2002CF1013 began on January 31, 2008—the date his sentence in Winnebago County case No.2005CF158 was vacated. We conclude Zastrow’s prison sentence in Outagamie County case No. 2005CF285—the only Outagamie County case he appeals and which sentence was consecutive to the imposed sentence in Outagamie County case No. 2002CF1013—began on October 18, 2013. We therefore reverse the order denying postconviction relief and remand to the circuit court with directions that the DOC recalculate the date of Zastrow’s release to extended supervision.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Robert D. Lee-Kendrick

Case No.: 2016AP627

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

Focus: Ineffective Assistance of Counsel

Robert D. Lee-Kendrick, pro se, appeals from an order of the circuit court that denied his postconviction motion without a hearing. Lee-Kendrick believes he is entitled to a hearing on the motion, and/or a new trial, based on claims of ineffective assistance of trial counsel. We reject Lee- Kendrick’s arguments and affirm the circuit court.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kelsea Santana Smith

Case No.: 2016AP638-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Ineffective Assistance of Counsel – Plea Withdrawal

Kelsea Santana Smith appeals from a judgment of conviction for one count of first-degree reckless homicide, as a party to a crime contrary to WIS. STAT. §§ 940.02(1), 939.05 (2015-16). Smith also appeals from an order denying his postconviction motion for a Machner hearing, a withdrawal of his plea or, alternatively, a sentence modification. Smith argues that he should be allowed to withdraw his guilty plea because his trial counsel provided ineffective assistance in multiple ways. Smith additionally asserts that his plea was not knowingly and voluntarily made because the State’s offer of resolution was not placed on the record during Smith’s plea, because the plea was accepted out of fear, and because his attorney made sentencing promises and pressured him into accepting the plea bargain. As an alternative to plea withdrawal, Smith argues that his sentence should be modified because of a new factor relevant to the imposition of his sentence. We affirm.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Matthew Ray Taylor

Case No.: 2016AP682-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Ineffective Assistance of Counsel – Evidence

Matthew Ray Taylor appeals from his judgment of conviction, entered upon a jury’s verdict, for first-degree reckless homicide while using a dangerous weapon, first-degree reckless injury while using a dangerous weapon, and being a felon in possession of a firearm. These charges stemmed from a drug deal that resulted in two men being shot, one fatally.

Taylor subsequently filed a postconviction motion seeking a new trial, or alternatively, an evidentiary hearing, claiming there was new evidence in the form of three witnesses who had previously remained silent out of concern for their safety. Taylor also sought a new trial on grounds of ineffective assistance of counsel based on his trial counsel’s failure to call any witnesses at trial, as well as failing to object to the witnesses’ out-of-court identification of Taylor. Alternatively, he requested a Machner hearing on this issue. The trial court rejected both arguments without a hearing. We affirm.

WI Court of Appeals – District III

Case Name: State of Wisconsin v. David E. Sierra-Lopez

Case No.: 2016AP704-CR

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

Focus: Ineffective Assistance of Counsel – Lack of Consent

David Sierra-Lopez appeals two judgments of conviction, entered upon jury verdicts, on multiple charges related to a residential burglary and the robbery and sexual assault of the occupant. He also appeals an order denying his motion for postconviction relief. We reject Sierra-Lopez’s argument that his statements during an interview with law enforcement, as well his consent to provide a DNA sample, were not knowingly, intelligently and voluntarily given. We also reject his arguments that he received ineffective assistance of trial counsel and that he is entitled to reversal in the interest of justice. Accordingly, we affirm.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Dimitri C. Boone

Case No.: 2016AP918-CR

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

Focus: Court Error – Sentencing

Dimitri C. Boone appeals from a judgment of conviction entered on his guilty plea and an order denying his postconviction motion. Boone seeks sentence modification on the grounds of a new factor under State v. Harbor, 2011 WI 28, 40, 333 Wis. 2d 53, 797 N.W.2d 828. He claims

the new factor was a report, prepared after sentencing by an employee of the Public Defender’s office, which showed “gross inaccuracies” in the presentence investigation (PSI) prepared by the Department of Corrections (DOC) with regard to his performance while on DOC supervision. These inaccuracies, he argues, were highly relevant to the trial court at sentencing, entitling him to a re- sentencing under Harbor. Relatedly, he argues that the trial court erroneously exercised its discretion in finding that the new factor did not justify re-sentencing.

We disagree and affirm the circuit court. Boone failed to meet his burden of showing that the post-sentencing report was a new factor under Harbor. None of the purportedly inaccurate information was in fact, inaccurate, or new, and none was highly relevant to the trial court at sentencing.

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jeff Allen Coleman

Case No.: 2016AP1324-CR

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

Focus: Preclusion – OWI

Jeff Coleman appeals a judgment convicting him of fifth-offense operating a motor vehicle while intoxicated. He contends the circuit court should have granted his motion to suppress evidence obtained as a result of the traffic stop. Coleman argues: (1) the doctrine of issue preclusion applies based on a 2009 decision suppressing evidence arising from the same traffic stop; and (2) the arresting officer lacked sufficient grounds for performing the traffic stop. We reject these arguments and affirm the judgment.

WI Court of Appeals – District III

Case Name: Amos Financial, LLC v. Kenneth J. Langeslay, et al.

Case No.: 2016AP1699

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

Focus: Court Error – Dismissal Order

As a sanction for failing to comply with a court order and several civil procedure statutes, the circuit court dismissed Amos Financial, LLC’s lawsuit to enforce a loan agreement against Kenneth and Elaine Langeslay. Amos contends the order dismissing its lawsuit is void because the circuit court failed to provide adequate notice that dismissal was a possible sanction for Amos’ conduct. We conclude the dismissal order is not void because WIS. STAT. § 805.03 (2015-16),1 provided constructive notice that dismissal was a possible sanction. We lack jurisdiction to consider Amos’ other arguments regarding the dismissal order. Amos has failed to develop any argument that the circuit court erred by denying Amos’ subsequent WIS. STAT. § 806.07 motion to vacate the dismissal order. Accordingly, we affirm.

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jonathon J. Olson

Case No.: 2016AP2189-CR

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

Focus: Court Error – Suppression Motion

Jonathon Olson appeals a judgment convicting him of possession with intent to deliver up to 200 grams of tetrahydrocannabinols (THC). Olson argues the circuit court erred by denying his suppression motion because: (1) police lacked reasonable suspicion to detain Olson past the time required to investigate a traffic accident; and (2) police impermissibly searched Olson’s backpack without a warrant.

We conclude police had reasonable suspicion to detain Olson beyond the time required to investigate the accident. However, we agree with Olson that a warrant was required in order for police to search his backpack. We reject the State’s argument that Olson is not entitled to suppression because police would have inevitably discovered the evidence inside the backpack absent the constitutional violation. We therefore reverse Olson’s judgment of conviction and remand with directions that the circuit court suppress the evidence found in Olson’s backpack.

WI Court of Appeals – District III

Case Name: Hieu N. Arnholt v. Jeffrey C. Arnholt

Case No.: 2016AP2242-FT

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

Focus: Postdivorce Order – Maintenance

Hieu Arnholt appeals a postdivorce order reducing the monthly amount of her former husband’s limited-term maintenance payments. We conclude the circuit court could reasonably find a substantial change of circumstances, it adequately considered both the support and fairness objectives underlying the maintenance award, and it did not otherwise erroneously exercise its discretion in reducing the maintenance award. We therefore affirm.

WI Court of Appeals – District II

Case Name: Scenic Pit, LLC v. Village of Richfield, et al.

Case No.: 2015AP2291

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

Focus: Landfills – Zoning

The siting of landfills is, understandably, often fraught with controversy. In response, the State of Wisconsin has seen fit to preempt local neighborly battles for the common good by establishing a statewide landfill regulatory scheme. This case concerns the scope of that statewide scheme for solid waste facilities exempt from regulation under WIS. STAT. § 289.43(8) (2015-16)—clean fill facilities—vis-à-vis a municipality’s zoning powers and certain other local construction permitting requirements.

Scenic Pit LLC sought to open a clean fill facility in the Village of Richfield. The Village maintains that a clean fill facility may not be opened and operated at the site Scenic wishes to use because it is not zoned for such activities, and because Scenic must, as a prerequisite, comply with local construction storm water and erosion permitting requirements as well. Scenic, relying on DeRosso Landfill Co. v. City of Oak Creek, 200 Wis. 2d 642, 547 N.W.2d 770 (1996), maintains that the Wisconsin Department of Natural Resources (DNR) has— pursuant to state statute and the administrative rules promulgated thereunder— exempted clean fill facilities from the local approvals identified by the Village, namely, zoning and certain construction storm water and erosion permitting requirements. We agree with Scenic and reverse the circuit court’s order granting summary judgment to the Village.

Recommended for Publication

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Nathan J. Paape

Case No.: 2015AP2462-CR

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

Focus: Postconviction Relief – Parole

Nathan J. Paape appeals from a judgment entered upon a jury verdict convicting him of first-degree intentional homicide and an order denying his motion for postconviction relief. Paape contends that a sentence of life imprisonment with the possibility of release to extended supervision after thirty years of confinement amounts to a “de facto” life sentence because, when he first becomes eligible to seek release, he will not have a “meaningful opportunity” to demonstrate to the court that he has matured and been rehabilitated and, thus, should be released. We disagree. Accordingly, we reject Paape’s challenges, whether facial or as applied, to WIS. STAT. §§ 302.114 and 973.014. The circuit court, upon remittitur shall amend the judgment of conviction to reflect that Paape is first eligible for release on December 12, 2043, to extended supervision, not parole.

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Anthony Lamont Johnson

Case No.: 2016AP745-CR

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

Focus: Postconviction Relief – Multiplicitous Conviction

Anthony Lamont Johnson appeals a judgment of conviction entered following a jury trial and an order denying his motion for postconviction relief. He argues that his convictions for strangulation and suffocation in violation of WIS. STAT. § 940.235(1) (2015-16)1, and for battery in violation of WIS. STAT. § 940.19(1), are multiplicitous, and requests that this Court vacate his battery conviction. Because we conclude that neither offense is included in the other under WIS. STAT. § 939.66(1), we affirm.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jamal L. Williams

Case No.: 2016AP883-CR

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

Focus: Court Error – Sentencing

Jamal Williams raises two issues on appeal. He first claims he is entitled to resentencing on the ground that the circuit court sentenced him based on an “improper and irrelevant sentencing factor,” “namely, the fact that Williams refused to stipulate to restitution for which he was not legally responsible.” Second, he argues the court erred on ex post facto grounds in requiring him to pay a mandatory DNA surcharge. We affirm the court on Williams’ first claim, but reverse on the second.

Recommended for Publication

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Joseph T. Langlois

Case No.: 2016AP1409-CR

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

Focus: Court Error – Evidence and Jury Instructions

Joseph T. Langlois appeals from a judgment and an amended judgment of conviction entered after a jury found him guilty of homicide by negligent handling of a dangerous weapon. He further appeals from two orders denying his motions for postconviction relief. Langlois contends that there were errors in the court’s instructions to the jury on the defenses of accident and self-defense, which counsel let pass without objection, resulting in Langlois being denied the effective assistance of counsel. We disagree. The court properly instructed the jury that the State had the burden of disproving self-defense beyond a reasonable doubt. The accident and homicide by negligent handling of a dangerous weapon instructions correctly advised the jury that they had to find that Langlois’s conduct created an unreasonable and substantial risk of death or great bodily harm. Langlois also contends that the evidence presented was legally insufficient to support a conviction for homicide by negligent handling of a dangerous weapon. Again, we disagree. Thus, we affirm the judgments and orders.

Recommended for Publication

File Text

WI Court of Appeals – District IV

Case Name: Jackson Country V. G.B. and G.O.

Case No.: 2015AP2458

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

Focus: Custody

G.B. and G.O. (collectively, the sisters) appeal an order that removed both of them as guardians of the person for their brother G.B.B. The sisters argue, first, that the evidence was insufficient to support the circuit court’s determination that they had failed to act in their brother’s best interests, and second, that the remedy of removal was unwarranted. For the reasons we set forth below, we reject both arguments and affirm the order of removal.

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Scott Maher

Case No.: 2015AP2658

Officials: Lundsten, Sherman and Blanchard, JJ

Focus: Ineffective Assistance of Counsel – Discharge Hearing

Scott Maher appeals an order that denied his petition for discharge or supervised release from a Chapter 980 commitment, and a subsequent order denying his motion for a new trial. The sole issue on appeal is whether Maher was denied the effective assistance of counsel at his discharge hearing when his attorney failed to object to purported hearsay testimony from both the State’s expert witness and his own expert witness regarding prior psychological evaluations of Maher that had been performed by other experts. For the reasons discussed below, we reverse and remand with directions that Maher be provided with a new hearing on his discharge petition.

7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: 1000 Friends of Wisconsin Inc. v. United States Department of Transportation, et al.,

Case No.: 16-2321; 16-2586

Officials: EASTERBROOK and WILLIAMS, Circuit Judges, and FEINERMAN, District Judge.

Focus: Lack of Justiciable Controversy.

For these reasons, I respectfully dissent from the dismissal of Wisconsin’s appeal for lack of a justiciable controversy, and would proceed to the merits.

Dismissed

7^th Circuit Court of Appeals

Case Name: United States of America v. Terry Joe Smith

Case No.: 16-2035

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

Focus: Sentencing – Applicable Guidelines

A jury convicted Terry Joe Smith, a police officer, of violating 18 U.S.C. § 242, by subjecting two men to the intentional use of unreasonable and excessive force, and violating their civil right to be free of such abuse. The district court sentenced Smith to fourteen months’ imprisonment, less than half the low end of the applicable guidelines range. In the first appeal of the case, we affirmed Smith’s conviction but vacated the sentence and remanded for full resentencing, concluding that the court had failed to justify the below-guidelines sentence. United States v. Smith, 811 F.3d 907 (7th Cir. 2016). On remand, the court again sentenced Smith to fourteen months’ imprisonment and once more failed to adequately explain or justify the below-guidelines sentence. We again vacate and remand for a complete re-sentencing.

Vacated and remanded

7^th Circuit Court of Appeals

Case Name: Autumn Tibbs v. Administrative Office of the Illinois Courts

Case No.: 16-1671

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

Focus: Wrongful Termination – FMLA

Autumn Tibbs worked as an administrative assistant in the Illinois court system. She was suspended the day she returned to work after taking leave under the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601 et seq. She was then fired after she chose not to attend a disciplinary meeting. Tibbs sued the Administrative Office of the Illinois Courts. She contends that this agency employed her and that she was fired in retaliation for taking FMLA leave. The district court granted summary judgment for the agency, reasoning that it never employed Tibbs and thus could not have discharged her, and that in any event, there is no evidence of retaliation. We affirm because Tibbs cannot point to evidence from which a jury could reasonably infer that any of her supervisors harbored retaliatory animus against her. We do not resolve the question whether the Administrative Office employed Tibbs. The judgment of the district court in favor of the Administrative Office of the Illinois Courts on Tibbs’s claim of FMLA retaliation is affirmed.

Affirmed

7^th Circuit Court of Appeals

Case Name: Pamela D. Ferrill v. Oak Creek-Franklin Joint School District, et. al

Case No.: 15-3805

Officials: POSNER and SYKES, Circuit Judges, and YANDLE,

District Judge

Focus: Wrongful Termination – Title VII Violation

Pamela Ferrill was hired as the principal of Edgewood Elementary School in the Oak Creek- Franklin Joint School District for an initial two-year term with an automatic third-year rollover unless the Board of Education opted out. Ferrill is black; the school district serves two predominantly white suburbs on the southern edge of Milwaukee County. During her tenure as principal, the Edgewood staff had exceedingly low morale, and Ferrill was plagued with multiple performance complaints.The retaliation claim fails for lack of evidence connecting the Board’s decision to activity protected by Title VII. Even with that generous assumption, Ferrill’s claim fails for lack of evidence of causation. To prevail on a retaliation claim requires “proof that the desire to retaliate was the but- for cause of the challenged employment action.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013). As we’ve explained, the evidence establishes beyond dispute that Dr. Burmeister’s recommendation that the Board opt out of the contract rollover was motivated by Ferrill’s persistent resistance to improving her performance, which spanned the entirety of her two-year tenure and was confirmed by an independent consultant. Ferrill asserts that Dr. Burmeister would not have taken this step but for a desire to retaliate against her for complaining about racism at the school. The record does not support that assertion.

Affirmed

7^th Circuit Court of Appeals

Case Name: Amin Ijbara Equity Corp. et al., v. Village of Oak Lawn et al.

Case No.: 15-2655

Officials: POSNER and SYKES, Circuit Judges, and YANDLE, District Judge.

Focus: Statue of Limitations – Constitutional Violation

Amin Ijbara owned a strip mall in the Village of Oak Lawn, Illinois, but defaulted on his mortgage payments, precipitating a foreclosure. He blames this misfortune on Oak Lawn officials, accusing them of waging a campaign of regulatory harassment that included frivolous inspections and citations for nonexistent or trumped-up building-code violations, which cost him money and scared off prospective tenants. He filed this suit under 42 U.S.C. § 1983 alleging that this abuse of power violated his right to equal protection of the law.

The district judge dismissed the suit as time-barred. She held that Ijbara’s claim accrued when the foreclosure action was filed, or at the very latest, when the judge presiding in that action appointed a receiver to take control of the mall. Ijbara’s suit, filed almost three years later, missed the two- year limitations deadline. Ijbara resists this conclusion, arguing that his claim did not accrue until the state court entered final judgment in the foreclosure action. If he’s right, the suit was timely and dismissal was improper. He is not right. Ijbara confuses the eventual consequences of a constitutional violation with the constitutional injury that starts the limitations clock. Ijbara was well aware of his injury and its cause long before the entry of final judgment in the foreclosure proceeding. We affirm.

Affirmed

7^th Circuit Court of Appeals

Case Name: Donna Nicholson v. City of Peoria, Illinois, et al.

Case No.: 16-4162

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

Focus: Court Error – Sufficiency of Evidence

Peoria police officer Donna Nicholson appeals from a judgment against her in this discrimination and retaliation case. She also appeals the denial of her motion for reconsideration and motion to disqualify Judge Mihm. For the reasons stated below, we agree with the district court that Nicholson did not present sufficient evidence to survive summary judgment on either claim. Moreover, the district court did not err in denying Nicholson’s motion for reconsideration or the motion to disqualify Judge Mihm, which was frivolous. Therefore, we affirm the judgment below.

Affirmed

7^th Circuit Court of Appeals

Case Name: Hanson Cold Storage Company of Indiana d/b/a Hanson Logistics, v. National Labor Relations Board

Case No.: 16-3617; 16-3671

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

Focus: Labor Board Error – Abuse of Discretion

Thirty‐seven employees of an Indiana employer voted in a union‐representation election. The employer and the union disputed two of the votes, a sufficient number to affect the outcome of the election. The employer argued that one vote should not count, claiming that the voter’s intent could not be discerned from the ballot; the union argued that another vote should not count, claiming that the voter was not employed by the employer at the time of the vote. The National Labor Relations Board rejected the employer’s argument and counted the first disputed vote as a vote in favor of representation. The Board then concluded that the second disputed vote was no longer outcome determinative of the election.

So it dismissed that dispute as moot and certified the union. The parties now contest the Board’s counting of the first disputed vote, a dispute that turns on the intent of a voter who produced a hopelessly unclear ballot. Because we find it impossible to divine the voter’s intent from the face of the ballot, we hold that the Board abused its discretion by counting that vote. We further hold that the Board erred by dismissing as moot the union’s challenge to the second disputed vote. For the foregoing reasons, we VACATE the Board’s certification decision; DENY the Board’s cross‐application for enforcement of its unfair‐labor practice order; and REMAND for proceedings consistent with this opinion.

Vacated and remanded

7^th Circuit Court of Appeals

Case Name: Fulton Dental, LLC v. Bisco, Inc.

Case No.: 16-3574

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

Focus: Court Error – Telephone Consumer Protection Act

Our putative class representative, Fulton Dental, LLC, received an unsolicited fax from Bisco, Inc., and it has sued for damages under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 et seq. Before Fulton moved for class certification, Bisco tried to moot its claim by tendering an offer that (Bisco says) gives Fulton all of the individual relief it could possibly expect. This offer, however, was not submitted pursuant to Federal Rule of Civil Procedure 68, as were the offers in Genesis and Campbell‐Ewald. Instead, Bisco tried to use Rule 67, which allows a party to deposit a payment with the court. The district court concluded that Bisco’s maneuver was enough to moot Fulton’s individual claim and to disqualify it from serving as a class representative, and so it dismissed the entire action. We conclude, however, that this step was premature, and so we return the case to the district court for further proceedings. We therefore REVERSE the judgment of the district court and REMAND for further proceedings.

Reversed and remanded

7^th Circuit Court of Appeals

Case Name: United States of America v. Avalon Betts-Gaston

Case No.: 16-2034

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

Focus: Court Error – Testimony

Defendant Avalon Betts‐Gaston was convicted at trial on two counts of wire fraud. In this appeal, she raises numerous challenges to both her convictions and sentence. We affirm the convictions and sentence. The district court’s determination was not mistaken for two reasons: Betts‐Gaston’s narrative was implausible in its own right, and Ross’s testimony contradicted her. To believe Betts‐Gaston’s version of the story, the court would have had to believe that, on learning for the first time that the application erroneously indicated the purchase was for a second home, Betts‐Gaston would not have tried to fix the error. It would have had to accept that she thought it made sense to ask her father to move from the suburbs to Chicago’s south side to reside occasionally with a woman he did not know, presumably leaving his mother (who lived with him) alone. And the court would have had to believe that her father agreed to that after one conversation at the closing. The court did not clearly err in disbelieving that testimony. Nor did the court err in crediting Ross’s testimony. She described Betts‐Gaston as actively involved with her father’s loan application, acting as a go‐between to adjust his reported income and the purpose of the purchase until he qualified for the loan. In Ross’s account, Betts‐Gaston proposed reporting that the property would be her father’s primary residence, but Ross refused to use such a blatant falsehood. Betts‐Gaston then said to say it would be his secondary residence, and Ross agreed to that. That testimony supports the district court’s application of the obstruction of justice enhancement.

The judgment of the district court is AFFIRMED.

Affirmed

7^th Circuit Court of Appeals

Case Name: United States of America v. Robert J. Lunn

Case No.: 16-1791

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

Focus: Court Error – Testimony and Jury Instruction

On May 30, 2012, Defendant-appellant Robert Lunn was charged with five counts of bank fraud, in violation of 18 U.S.C. § 1344. A jury convicted Lunn on all five counts on October 17, 2014. Lunn now challenges his conviction, arguing that the district court improperly interfered with his testimony and failed to provide his requested jury instruction.

Affirmed

7^th Circuit Court of Appeals

Case Name: James Owens v. Salvador A. Godinez, et al.,

Case No.: 15-3892

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

Focus: Civil Rights Liberty Violation

James Owens, an Illinois state prisoner, brought this suit under 42 U.S.C. § 1983 because he believes that nearly two dozen prison employees deliberately ignored his medical needs and retaliated against him for filing grievances and lawsuits. He is primarily dissatisfied with the adequacy of the toothpaste, mail supplies, and laundry detergent he received at three different prisons over a six-year period. The district court narrowed the list of defendants at screening, see 28 U.S.C. § 1915A, and later granted summary judgment for the remaining defendants. We affirm.

Affirmed

7^th Circuit Court of Appeals

Case Name: Anthony Barnett v. Ron Neal, Superintendent, Indiana State Prison

Case No.: 15-3559

Officials: WOOD, Chief Judge, SYKES, Circuit Judge, and COLEMAN, District Judge

Focus: Conditional Writ of Habeas Corpus

For more than a decade, Anthony Barnett has been trying to set aside his Indiana convictions for felony battery, felony burglary, felony intimidation, and being a habitual criminal. He thought that he had achieved success when the federal district court issued a conditional writ of habeas corpus in response to his petition, but the writ promised less than he thought. It offered the state the choice between releasing him outright, or giving him a new direct appeal in the state court. A procedural snarl ensued, at the end of which the district court gave the state extra time to seek the new appeal. Believing that he now has an unconditional right to immediate release, Barnett has appealed. We conclude that the district court was entitled to handle the matter as it did, and so we affirm its judgment.

Affirmed

7^th Circuit Court of Appeals

Case Name: United States Equal Employment Opportunity Commission v. Auto Zone, Inc., et al.

Case No.: 15-3201

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

Focus: Title VII Violation

From 2008 to 2012, Kevin Stuckey worked as a sales manager for the auto-parts retailer Auto- Zone, Inc. During his four years with the company, Stuckey was transferred between Chicago-area stores several times. None of these transfers entailed any loss in pay, benefits, or job responsibilities. In July 2012 he was transferred again, this time from a store on Kedzie Avenue that serves a largely Hispanic clientele. This transfer, too, involved no reduction in his pay or responsibilities. Stuckey never reported for work at his new assignment. Instead he filed a complaint with the Equal Employment Opportunity Commission accusing AutoZone of racial discrimination in violation of Title VII. Stuckey is black; he claimed that AutoZone transferred him out of the Kedzie location in an effort to make it a “predominantly Hispanic” store.

The EEOC filed suit on Stuckey’s behalf alleging that the transfer violated 42 U.S.C. 2000e-2(a)(2), an infrequently litigated provision in Title VII that makes it unlawful for an employer “to limit, segregate, or classify his employees … in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” The district judge granted summary judgment for AutoZone, holding that the transfer was not an adverse employment action. The EEOC contests this conclusion, arguing that the statute doesn’t require the claimant to prove that the challenged action adversely affected his employment opportunities or status. That reading cannot be squared with the plain statutory text. The district judge properly entered summary judgment for Auto Zone. We affirm.

Affirmed

7^th Circuit Court of Appeals

Case Name: Joseph Lombardo v. United States of America

Case No.: 15-2860

Officials: BAUER and POSNER, Circuit Judges, and DEGUILIO, District Judge

Focus: Ineffective Assistance of Counsel

Joseph Lombardo is serving a life sentence on his convictions for racketeering, murder, and obstruction of justice. After we affirmed his convictions and sentence on direct appeal, he retained a new attorney to argue that his convictions were the product of his trial counsel’s in- effectiveness. However, his new attorney misunderstood when the one-year limitations period for motions under 28 U.S.C. § 2255 began running, and thus filed Lombardo’s motion too late.

The question in this appeal is whether an attorney’s miscalculation of a statute of limitations justifies equitably tolling the limitations period for a motion under § 2255. Following longstanding precedent, we hold that it does not, even if the result is to bar a claim of ineffective assistance of trial counsel. We therefore affirm the district court’s dismissal of Lombardo’s untimely motion.

Affirmed

7^th Circuit Court of Appeals

Case Name: Affordable Recovery Housing v. City of Blue Island, et al.

Case No.: 16-3677

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

Focus: Fair Housing Amendment Violation

The Fair Housing Amendments Act forbids “mak[ing] unavailable or deny[ing] a dwelling to any buyer or renter because of a handicap of … a person residing in or intending to reside in that dwelling.” 42 U.S.C. § 3604(f)(1). But Affordable of course was not trying to exclude handicapped persons from its facilities, and Blue Island’s exclusion when it forced the 73 residents to leaves was quickly undone when Affordable discovered the supervening state law regarding sprinkler systems. Affordable not having prevailed on any claims that allow for fee‐shifting from the loser to the winner of a lawsuit, the “American Rule,” requiring each party to bear the expense of its lawyers, governs, barring Affordable’s money claims.

Affirmed

7^th Circuit Court of Appeals

Case Name: Yehuda Frager v. Indianapolis Colts, Inc.

Case No.: 16-4183

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

Focus: Conversion

Yehuda Frager, the plaintiff in this diversity suit (governed by Indiana law) against the Colts for conversion, bought 94 season tickets in 2015. He believed that he would be able to renew those season tickets in 2016, and considers himself to be the rightful owner of 94 season tickets for the 2016 season as a consequence of his having purchased the 2015 season tickets. But the Colts refused to give him season tickets for 2016, precipitating this suit. He claims to own the tickets, that the Colts stole them from him (“converted” them, in polite legal language), and that he is entitled to be reimbursed by the Colts for his loss. The district judge, disagreeing, dismissed the plaintiff’s suit, with prejudice. Frager had a reasonable expectation that he’d be able to renew his season tickets for 2016. That purchasers of season tickets are willing to pay a 30 percent transfer fee in the online marketplace indicates that the expectation of renewal added to the salable value of season tickets, but given the wording of his contract with the Colts it was merely “a speculation on a chance, not a legal right.”

Affirmed

7^th Circuit Court of Appeals

Case Name: Brendan Dassey

Case No.: 16-3397

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

Focus: Ineffective Assistance of Counsel – Confession

After many hours of questioning and interrogation spread over several days, Dassey confessed that he, along with Avery, had raped and brutally murdered Halbach and then burned her body in an on‐site fire pit. By the time of the trial, Dassey had recanted his confession, and the State had failed to find any physical evidence linking him to the crime, but he was convicted and sentenced to life in prison nonetheless. After appeals and post‐conviction proceedings in the state court failed to bring him relief. The state court on post‐conviction review stated the generalized standard for evaluating the voluntariness of a confession– totality of the circumstances–but failed to note how that juvenile confession requires more care and failed to apply the standard at all. Dassey filed a petition for a writ of habeas corpus in the district court, claiming that he did not receive effective assistance of counsel and that his confession was not voluntarily given. The district court, concluding as we do that the state court did not apply the proper standard, granted the writ. Despite the limited role of a federal court on habeas review we must affirm. If a state court can evade all federal review by merely parroting the correct Supreme Court law, then the writ of habeas corpus is meaningless.

All agree that the governing constitutional standard for the voluntariness of a confession depends on the totality of the circumstances. The state courts recognized that standard and applied it reasonably to the facts before them. As in most cases on voluntariness of confessions, relevant factors point in conflicting directions. A few factors and passages from Dassey’s confession support the majority’s view that the confession was not voluntary. Many other factors and passages support the state courts’ view that, overall, the confession was voluntary. The Wisconsin Court of Appeals could have been much more thorough in its discussion, but its conclusion was within the bounds of reason. It was not contrary to or an un‐ reasonable application of controlling Supreme Court precedent. We should reverse the district court’s grant of the writ of habeas corpus.

Affirmed

7^th Circuit Court of Appeals

Case Name: Ryan DeKeyser, et al. v. ThyssenKrupp Waupaca, Inc. d/b/a as Waupaca Foundry, Inc.

Case No.: 16-2159

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

Focus: Fair Labor Standards Act – Compensable Work Time

Before us is an appeal by the defendant (Waupaca for short) in a class action suit brought against it in a federal district court in Wisconsin on behalf of a number of the workers that it employs in six foundries that manufacture ductile and gray cast iron parts for use in the automotive and other industries. Four of the six foundries are located in Wisconsin, and the remaining two in Indiana and Tennessee. The suit alleges that Waupaca violated the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., by its long- standing practice of not treating the time that its foundry workers spend changing clothes and showering on-site at the end of a foundry shift to be compensable “work” time. The plaintiffs allege that they end their shifts covered in a layer of “foundry dust,” which can irritate the skin and cause lung disease if inhaled. Changing clothes and showering immediately after a shift, they argue, is indispensable to reducing the risk that foundry work poses to their health. The plaintiffs have also alleged violations of Wisconsin wage law.

The district court has certified the plaintiff class, now limited to Wisconsin plaintiffs, under Rule 23 and section 216(b), but has yet to determine whether the time spent changing clothes and showering is indeed “work” time compensable under the FLSA or, if it is, what damages the members of the plaintiff class are entitled to, to compensate them for Waupaca’s failure to have paid them for that time. Those determinations presumably will require a trial. For now we simply affirm the district court’s certification decision.

Affirmed

7^th Circuit Court of Appeals

Case Name: United States of America v. Chinyere Alex Ogoke

Case No.: 16-1297

Officials: BAUER and EASTERBROOK, Circuit Judges, and

DEGUILIO,* District Judge.

Focus: Contempt – Closing Argument

Attorney Michael Leonard was convicted of contempt under 18 U.S.C. §§ 401(1) and (3) after he made a closing argument, in violation of the district court’s written order, regarding a witness who did not testify at trial. He appeals his conviction on both substantive and procedural grounds. We affirm.

Affirmed

7^th Circuit Court of Appeals

Case Name: Cedric J. Smith v. United States of America

Case No.: 16-4085

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

Focus: Negligence

Cedric Smith brought suit against the federal government under the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq., for injuries he sustained when he fell off a stool at the federal courthouse in Rock Island, Illinois. Smith relies on the doctrine of res ipsa loquitur to impute negligence to the government. The district court concluded that Smith had not made a showing sufficient to trigger the res ipsa loquitur inference of negligence. We find to the contrary and reverse and remand for further proceedings.

Reversed and remanded

7^th Circuit Court of Appeals

Case Name: 1^st Source Bank v. Joaquim Salles Leite Neto

Case No.: 17-1058

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

Focus: Parallel Civil Litigation

Joaquim Salles Leite Neto is a defendant in parallel civil litigation brought by 1st Source Bank in Indiana and Brazil. Neto sought antisuit injunctive relief in Indiana district court to prevent 1st Source from pursuing its claims in Brazil. The district court denied Neto’s motion, and Neto appeals. For the following reasons, we affirm.

Affirmed

7^th Circuit Court of Appeals

Case Name: Raymond S. McGaugh v. Commissioner of Internal Revenue

Case No.: 16-2987

Officials: BAUER and WILLIAMS, Circuit Judges, and DEGUILIO, District Judge

Focus: Taxable Distribution

This appeal from the Tax Court addresses whether a taxable distribution occurs where an individual directs his IRA custodian to wire funds directly from his IRA to purchase securities, but his custodian does not accept the resulting share certificate. For the reasons that follow, we conclude that the petitioner was never in actual or constructive receipt of funds from his IRA. Accordingly, we affirm the judgment of the Tax Court.

Affirmed

7^th Circuit Court of Appeals

Case Name: John Simpson v. Brown County, et al.

Case No.: 16-2234

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

Focus: Procedural Due Process

This appeal presents a classic test of procedural due process. As the case comes to us, we must assume that a county board revoked a man’s professional li- cense without giving him prior notice or an opportunity to be heard. Plaintiff John Simpson installed and repaired septic systems in the county until June 14, 2013, when his license to do so was revoked by the Brown County Board of Health.

Simpson then brought this action under 42 U.S.C. § 1983 against Brown County, the Brown County Health Department, and the Brown County Board of Health (collectively, “the County”). Simpson alleged he was deprived of property without due process of law and sought compensatory dam- ages for his loss of income. After prolonged procedural fencing over the pleadings, the district court dismissed Simpson’s operative complaint under Federal Rule of Civil Procedure 12(b)(6). The district court’s theory was that post-deprivation remedies under state law, such as common-law judicial re- view, satisfied the Fourteenth Amendment’s due process requirement and that Simpson had not availed himself of such remedies. Simpson appeals that decision. Taking Simpson’s allegations as true, we hold (1) that Simpson has plausibly alleged that he was denied the pre-deprivation notice and hearing he was due; and (2) that even if the evidence ultimately shows the County had some basis for summary action, the County has not shown there is an adequate post-deprivation remedy under state law, whether in the form of common-law judicial review or anything other. We reverse and remand for further proceedings.

Reverse and remanded

7^th Circuit Court of Appeals

Case Name: United States of America v. Deandre Armour

Case No.: 15-2170

Officials: LANA DIAMOND ROVNER, Circuit Judge DIANE S. SYKES, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

Focus: Order Amendment

The following is before the court: MOTION PURSUANT TO 28 U.S.C. § 1651 AND/OR RULE 60(a) OF CIVIL PROCEDURE TO CORRECT A CLERICAL MISTAKE, filed on May 30, 2017, by pro se Appellant. Duryea Rogers moves to amend our opinion in the appeal of his co-defendant, Deandre Armour. United States v. Armour, No. 15-2170. Rogers explains that the opinion incorrectly states that he testified against Armour, and he asks us to correct the opinion to reflect that he did not cooperate with the government. The government responds that it does not object to the change. Therefore, IT IS ORDERED that the opinion is AMENDED as follows:

In the last paragraph on page 2, the sentence that reads “Both testified against Armour, who went to trial” shall be replaced with the sentence “Hardy testified against Armour, who went to trial.”

Amended

7^th Circuit Court of Appeals

Case Name: Home Care Providers, Inc, et al., v. Kelly Hemmelgarn, et al.; Nightingale Home Healthcare, Inc. v. United States of America, et al.

Case No.: 16-2054; 16-3668; 16-3669

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

Focus: Court Error – Bankruptcy

This consolidated appeal was prompted by the federal government’s termination of Nightingale Home Healthcare, Inc.’s Medicare provider agreement. Nightingale sought and received a preliminary injunction from the bankruptcy court that prevented the government from terminating Nightingale’s agreement. On appeal, the district court concluded that the bankruptcy court had lacked jurisdiction to issue an injunction and reversed the order. We conclude, however, that the issue of whether the bankruptcy court properly granted the injunction was moot, as the bankruptcy court had dissolved the underlying injunction prior to the district court’s ruling. Separately, Home Care Providers, Inc., Nightingale’s sole shareholder, and its owner, Dr. Dev A. Brar, filed a civil action in the district court, alleging that certain Indiana state surveyors had committed various constitutional violations leading up to Nightingale’s Medicare termination. The district court dismissed those claims with prejudice. We conclude Nightingale’s and Dr. Brar’s constitutional claims were also jurisdictionally barred, pursuant to 42 U.S.C. § 405(g), and vacate and remand with instructions to dismiss without prejudice.

Vacated and remanded

7^th Circuit Court of Appeals

Case Name: PQ Corporation v. Lexington Insurance Company

Case No.: 16-3280

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

Focus: Warehouse Liability Insurance

This appeal presents a dispute over warehouse liability insurance. Defendant Lexington Insurance Company denied a claim by its insured, Double D Warehouse, LLC, for coverage of Double D’s liability to customers for contamination of warehoused products. One basis for denial was that Double D failed to document its warehousing transactions with warehouse receipts, storage agreements, or rate quotations, as required by the applicable insurance policies. Litigation ensued. Plaintiff PQ Corporation was a customer of Double D whose products were damaged while warehoused there. PQ is now the assignee of Double D’s pol‐ icy rights, having settled its own case against Double D by stepping into Double D’s shoes to try to collect on Lexington’s insurance policies. PQ argued in essence that even though Double D had not documented its warehousing transaction in one of the ways specified in the insurance policies, there were pragmatic reasons to excuse strict compliance with those terms. The district court, however, granted summary judgment in favor of Lexington, enforcing the documentation requirement in the policy. We affirm.

Affirmed

7^th Circuit Court of Appeals

Case Name: Timothy D. Moseley v. Paul S. Kemper, Warden

Case No.: 16-2247

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

Focus: Consent – Habeas Corpus

Timothy Moseley was convicted on three counts of possessing nude photos of T.H. that were taken without her consent. Prior to trial, Moseley moved to have the court review T.H.’s mental-health records in camera. At issue here is whether the Wisconsin appellate court’s decision denying that motion is “contrary to, or involved an unreasonable application of” Supreme Court precedent. 28 U.S.C. § 2254(d)(1). Because the Wisconsin appellate court’s decision is not substantially different from Supreme Court precedent and because the court did not unreasonably apply that precedent to Moseley’s case, we reject those arguments.

Affirmed

7^th Circuit Court of Appeals

Case Name: Stacey Liberty v. City of Chicago, Eric Jehl, et al.

Case No.: 15-3444

Officials: WOOD, Chief Judge, and BAUER and ROVNER, Circuit

Judges.

Focus: Civil Rights Liability

On June 15, 2013, Antwoyne Johnson was an occupant of a vehicle whose driver was searching for parking on South Springfield Avenue in Chicago, Illinois, at approximately 2:45 a.m. A Chicago police car pulled behind the vehicle and turned on its lights. Johnson left the vehicle and ran into a nearby alley. The police officers drove into the alley in pursuit of Johnson and fired a number of times, hitting Johnson in the back and hand. Johnson died of his injuries. On March 23, 2015, plaintiff‐appellant Stacey Liberty, Johnson’s mother, filed a complaint under 42 U.S.C. § 1983, naming the City of Chicago and unknown Chicago police officers. Liberty’s complaint raised claims of false arrest, excessive force, deliberate indifference, unlawful seizure, and violation of due process. She also argued that the City adopted policies that permit police to use excessive force, and that the City failed to properly train and supervise the unknown officers.

Before concluding, we briefly address Liberty’s final contention that her claims against the additional unknown officers and the City should be reinstated. The City contends that Liberty has waived these arguments because she failed to raise them before the district court. We agree.

Affirmed

7^th Circuit Court of Appeals

Case Name: Prime Choice Services, Inc. v. Schneider Logistics Transloading and Distribution, Inc.

Case No.: 16-4197

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

Focus: Breach of Contract

Defendant Schneider is a logistics firm—a firm that manages the flow and storage of goods, in order to meet a customer’s requirements. A branch of Schneider’s business was and we assume still is located near Savannah, Georgia. Freight entering the port of Savannah was trucked to Schneider’s building, unloaded on one side, sorted, and then reloaded on the other side of the building onto outgoing trucks; such reloading is called in the trade “cross docking.” Prime, the plaintiff, sought to do the cross‐ docking work and after multiple discussions was hired by Schneider to do so. Prime was to be paid for what it moved. It was paid, but for the most part not paid timely and not paid enough to break even, let alone make a profit, and it complained about that and also about a lack of communication from Schneider concerning assignments to Prime and support for its labors. The final straw for Prime was Schneider’s failure—without explanation—to pay Prime $82,464.71 for services that Prime had rendered to it. Not being paid, Prime removed its employees from Schneider’s Savannah building; and eventually brought this suit for the money it claimed to be owed, which had now climbed, according to Prime and not contested by Schneider, to $289,059.95. Schneider responded that Prime’s repudiation of the con‐ tract by removing its employees from Schneider’s building had caused Schneider damages of $853,401.49, amounting to a net loss to that company of $564,341.54 ($853,401.49‐$289,059.95).

Notice too that dealing with a much smaller firm (Prime’s quarterly revenues most likely never exceeded $1 million, while Schneider’s parent company had operating revenues of $1 billion in the first quarter of 2017, see “Schneider National, Inc. Reports First Quarter 2017 Results,” Business Wire, May 11, 2017, www.business wire.com/news/home/20170511005293/en/), Schneider had undoubtedly hurt little Prime more by failing to pay on time the $289,059.95 it owed Prime than Prime had hurt Schneider by causing it to pay $853,401.49 more for the cross‐ docking work than it would have had Prime not repudiated the contract, spread out over a few months—peanuts to such a large firm. And finally in the second trial the judge had arbitrarily excluded evidence favorable to Prime, such as Schneider’s failure to make timely payment of the money owed Prime, and the relative size and financial condition of the two firms. In short, the first verdict, awarding no dam‐ ages to Schneider, was reasonable, and we hereby instruct the district court to reinstate it and order the second verdict and the judgment entered in conformity with it vacated.

Vacated and Remanded

7^th Circuit Court of Appeals

Case Name: Oakland Police & Fire Retirement System, et al., v. Mayer Brown, LLP

Case No.: 16-2983

Officials: POSNER, MANION, and HAMILTON, Circuit Judges

Focus: Breach of Contract

This appeal began with a $1.5 billion (with a “b”) mistake in documenting a commercial trans‐ action. The central question is who might be held legally responsible for that mistake. General Motors, represented by the Mayer Brown law firm, entered into two separate secured transactions in which the JP Morgan bank acted as agent for two different groups of lenders. The first loan (structured as a secured lease) was made in 2001 and the second in 2006. In

2008, the 2001 secured lease was maturing and needed to be paid off. The closing for the 2001 payoff required the lenders to release their security interests in the collateral securing the transaction. The big mistake was that the closing papers for the 2001 deal accidentally also terminated the lenders’ security interests in the collateral securing the 2006 loan. No one noticed—not Mayer Brown and not JP Morgan’s counsel.

The district court dismissed for failure to state a claim, holding that Mayer Brown did not owe a duty to plaintiffs, who are third‐party non‐clients. Oakland Police & Fire Retirement System v. Mayer Brown, LLP, No. 15 C 6742, 2016 WL 3459714, at *6 (N.D. Ill. June 22, 2016). Plaintiffs appealed, arguing that Mayer Brown owed them a duty of due care. Plain‐ tiffs offer three theories: (a) JP Morgan was a client of Mayer Brown in unrelated matters and thus not a third‐party non‐ client; (b) even if JP Morgan was a third‐party non‐client, Mayer Brown assumed a duty to JP Morgan by drafting the closing documents; and (c) the primary purpose of the General Motors‐Mayer Brown relationship was to influence JP Morgan. We agree with Judge Gettleman that Mayer Brown did not owe a duty to plaintiffs under any of these theories. We affirm the judgment dismissing the case.

Affirmed

7^th Circuit Court of Appeals

Case Name: Daniel Aguilar v. Janella Gaston-Camara, et al.

Case No.: 15-3894

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

Focus: Eighth Amendment Violation

The plaintiff, Daniel Aguilar, an inmate under the supervision of the Wisconsin Department of Corrections (“DOC”), filed a pro se complaint pursuant to 42 U.S.C. § 1983, alleging that beginning in October 2012 he was confined for 90 days without a hearing based on a purported violation of extended supervision. He argued that as a person who was released from prison on parole status rather than extended supervision status, his confinement under the extended supervision provisions denied him the procedures that are afforded to parolees, in violation of the Due Process Clause, and violated his rights under the Eighth Amendment.

At best, Aguilar’s evidence that the documents improperly listed him as under extended supervision, and that the dates of the criminal case—if considered—would have allowed defendants Gaston-Camara, Haessig, and Yeates, to deduce the misclassification, allow an inference of negligence. But that is insufficient for both the Eighth Amendment and the Due Process claims. As stated above, the Eighth Amendment is violated by acts or omissions that exhibit deliberate indifference; mere negligence is insufficient. Armata, 766 F.3d at 721. Similarly, negligent conduct by a state official does not implicate the Due Process Clause. Daniels v. Williams, 474 U.S. 327, 333–34 (1986); Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472 (2015)(“‘liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.’”)(quoting County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998)); Davis v. Wessel, 792 F.3d 793, 801 (7th Cir. 2015)(same). Aguilar in his due process challenge asserts that the misclassification and the failure to correct it denied him procedural protections to which he was entitled. The district court denied the claim because it held that Aguilar’s evidence supported only a claim of negligent conduct. As we discussed, the evidence even considering the proposed statement from Saldana, does not suggest more than negligence, and that is insufficient to support a due process claim just as it fails to support the Eighth Amendment claim. Accordingly, the district court properly granted summary judgment to the defendants.

Affirmed

7^th Circuit Court of Appeals

Case Name: Lexington Insurance Company v. Horace Mann Insurance Company, et al.,

Case No.: 16-2352

Officials: BAUER and FLAUM, Circuit Judges, and SHADID, District Judge

Focus: Breach of Contract

Christopher Drake was involved in a car accident with another driver, who offered to settle the matter with Drake’s automobile insurer, Horace Mann Insurance Company. The offer expired before Horace Mann accepted it, however, and the driver sued Drake and sent a letter to Drake’s lawyer suggesting that Horace Mann had handled the matter in bad faith. Believing that this letter constituted a “claim” against Horace Mann for extracontractual damages—and that this “claim” had accrued before the start date of Horace Mann’s own insurance policy with Lexington Insurance Company—Lexington sought a judicial declaration that it had no duty to indemnify Horace Mann under that policy. Horace Mann counterclaimed for breach of contract and declaratory judgment, and requested (pursuant to an Illinois statute) additional damages for “vexatious and unreasonable” claims-handling. Horace Mann also filed a third-party complaint against its insurance broker, Aon Risk Insurance Services West, for negligence in reporting the extracontractual “claim” to Lexington. The district court resolved Lexington’s complaint, in Horace Mann’s favor, at summary judgment, but awarded judgment to Lexington and Aon on Horace Mann’s claims under Federal Rule of Civil Procedure 50(a). Horace Mann appeals the Rule 50(a) decisions, and for the following reasons, we affirm.

Affirmed

7^th Circuit Court of Appeals

Case Name: James Hunt v. Moore Brothers, Inc., et al.

Case No.: 16-2055

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

Focus: Breach of Contract

James Hunt worked as a truck driver in Nebraska. On July 1, 2010, he signed an Independent Contractor Operating Agreement with Moore Brothers, a small company located in Norfolk, Nebraska. Three years later, Hunt and Moore renewed the Agreement. Before the second term expired, however, relations between the parties soured. Hunt hired Attorney Jana Yocum Rine to sue Moore on his behalf. She did so in federal court, raising a wide variety of claims, but paying little heed to the fact that the Agreements contained arbitration clauses. Rine resisted arbitration, primarily on the theory that the clause was unenforceable as a matter of Nebraska law. Tired of what it regarded as a flood of frivolous arguments and motions, the district court granted Moore’s motion for sanctions under 28 U.S.C. § 1927 and ordered Rine to pay Moore about $7,500. The court later dismissed the entire action without prejudice.

We have no need to consider whether the sanctions imposed by the district court were also justified under the court’s inherent power. See Chambers v. NASCO, Inc., 501 U.S. 32, 45– 46 (1991). Nor are we saying that the district court would have erred if it had denied Moore’s sanctions motion. We hold only that it lay within the district court’s broad discretion, in light of all the circumstances of this case, to impose a calibrated sanction on Rine for her conduct of the litigation, culminating in the objectively baseless motion she filed in opposition to arbitration. We therefore AFFIRM the district court’s order imposing sanctions.

Affirmed

7^th Circuit Court of Appeals

Case Name: United States of America v. Vincent Jones

Case No.: 16-4254

Officials: WILLIAM J. BAUER, Circuit Judge JOEL M. FLAUM, Circuit Judge MICHAEL S. KANNE, Circuit Judge

Focus: Amended Order

The opinion issued on June 28, 2017, in connection with the above-referenced case, is AMENDED as follows: Page 6, first paragraph under the heading Discussion, line 5: the word “in” should be inserted after the word “wrong.”

Page10, footnote1, is completely replaced with the following language: “For purposes of argument, we will assume that the gun safes were closed, and thus the officers could not have observed the guns in plain view.”

Amended

7^th Circuit Court of Appeals

Case Name: United States of America v. Carnell King

Case No.: 16-3572

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

Focus: Parsimony Principle

Defendant Carnell King appeals his below-guideline sentence. Since he pled guilty and the district court’s guideline calculation was admittedly correct, it is not surprising that we affirm the sentence. We issue a precedential opinion in the case, however, because King has raised a novel argument about the relationship between the Sentencing Guidelines and the statute instructing sentencing judges on what to consider in making their decisions, 18 U.S.C. § 3553(a).

The district judge did exactly what he was supposed to do in this case: calculate the correct offense level and criminal history category under the Guidelines, then step back and use his independent judgment under § 3553(a) to impose a sentence tailored to the individual offender and his crimes. See Gall v. United States, 552 U.S. 38, 49–50 (2007). King argues, however, that the “parsimony principle” in § 3553(a), which instructs the court to impose a sentence “sufficient, but not greater than necessary,” to serve the statutory purposes of sentencing, requires an adjustment of the applicable guideline calculations themselves. In support, he cites a tentative suggestion from a non-precedential Sixth Circuit decision. We reject his argument, which would make post-Booker federal sentencing even more complex than it already is, but without gaining any apparent benefit in terms of more just sentences.

The parsimony principle in § 3553(a) is an important and binding instruction from Congress. A sentencing court takes it into account sufficiently when the court considers whether and to what extent to accept the advice provided by the Sentencing Guidelines in a particular case. Judge Gettleman did so here and imposed a sentence that was thoughtful and sound. The judgment of the district court is AFFIRMED.

Affirmed

7^th Circuit Court of Appeals

Case Name: United States of America v. Keefer Jones

Case No.: 16-1494

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

Focus: Sentencing

In July 2002, Appellant Keefer Jones was convicted of possession of crack cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). In 2004, the district court sentenced Jones to 262 months’ imprisonment and eight years’ supervised release. The district court imposed several conditions of supervised released, including drug testing, mental health treatment, and sex offender treatment. Jones appealed, but did not challenge the conditions of supervised release. We affirmed.

Affirmed

7^th Circuit Court of Appeals

Case Name: Don Meadows v. Rockford Housing Authority

Case No.: 15-3897

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

Focus: Fourth Amendment Rights Violation

Don Meadows alleges that his Fourth Amendment rights were violated when an administrator at the Rockford Housing Authority (“RHA”) ordered the locks on his apartment changed. We must determine whether the employees of a private security company, who carried out

that order, are entitled to qualified immunity. The district court concluded that they are. We agree and thus affirm the district court’s grant of summary judgment for the defend- ants.

Affirmed

7^th Circuit Court of Appeals

Case Name: Monarach Beverage Co., v. David Cook, et al.,

Case No.: 15-3440

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

Focus: Equal Protection Clause

We are again asked to decide whether an aspect of Indiana’s alcohol regulation system violates the Equal Protection Clause. Two years ago we upheld an Indiana law that prohibits grocery and convenience stores from selling chilled beer. See Indiana Petroleum Marketers & Convenience Store Ass’n v. Cook, 808 F.3d 318 (7th Cir. 2015). In this case Monarch Beverage Company challenges a feature of Indiana’s “prohibited interest” law that separates beer and liquor wholesaling by prohibiting beer wholesalers from holding an interest in a liquor-distribution permit. See IND. CODE §§ 7.1-3-3-19, 7.1-5-9-3, 7.1-5-9-6. Monarch contends that this component of the prohibited-interest law lacks a rational basis. A district judge rejected this argument and upheld the law. We affirm that judgment. Indiana’s policy of separating beer and liquor wholesaling survives review for rationality.

Affirm