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Weekly Case Digests — October 23-27, 2017

By: Rick Benedict//October 27, 2017//

Weekly Case Digests — October 23-27, 2017

By: Rick Benedict//October 27, 2017//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Cordell Sanders v. Michael Melvin, et al.,

Case No.: 17-1938

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

Focus: Civil Rights Violation – Prisoner

Sanders alleges in this suit under 42 U.S.C. §1983 that, although his confinement may protect guards and other prisoners, the isolation, heat, and restricted air flow in solitary confinement harm him by aggravating both his psychological problems and his asthma. He contends that the conditions of his confinement—if not the fact of long-term solitary. Sanders maintains that asthma and a deteriorating mental state satisfy the exception to the exception: a “prisoner … under imminent danger of serious physical injury” may litigate in forma pauperis no matter how many strikes he has.

Having found that Sanders has made a plausible allegation of imminent, serious physical harm, we must remand for further proceedings to determine whether the allegation is true. The court cannot disregard the allegation as self-serving, but neither must the court accept whatever a prisoner says. See, e.g., Fletcher v. Menard Correctional Center, 623 F.3d 1171, 1172–73 (7th Cir. 2010); Taylor, 623 F.3d at 485–86.

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: Stacy M. Haynes v. United States of America

Case No.: 17-1680

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

Focus: Sentencing Guidelines and Jurisdiction

In 1998 Stacy Haynes was convicted of 12 federal crimes and sentenced to life plus 105 years in prison. The district court concluded that Haynes’s §1952(a)(2) convictions should be classified the same way as the §1951 offense, because his interstate travel set the stage for robberies. Haynes immediately appealed, and his brief in this court contends that, whatever may hold for Hobbs Act robbery, the crime of interstate travel for the purpose of committing racketeering does not satisfy the elements clause of §924(c)(3)(A).

At oral argument we asked the parties to file memoranda discussing Andrews and later decisions such as Hammer. To their credit, they acknowledged the jurisdictional problem. We understand why Haynes filed an immediate appeal; his lawyer was concerned that, if he waited until the resentencing, the prosecutor might contend that the time to appeal had expired. But with today’s opinion the law in the Seventh Circuit is clear. We agree with Hammer, Hayes, Futch, Stitt, and Martin, and we hold that, whether a §2255 proceeding concerns one count or many counts, when a district court orders resentencing on any count, the decision is not final until the new sentence has been imposed. The appeal is dismissed for want of jurisdiction.

Dismissed

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7th Circuit Court of Appeals

Case Name: Jovo Asentic v. Jefferson B. Sessions III

Case No.: 17-1202

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

Focus: Immigration Appeal

Jovo Asentic, a Bosnian Serb who is now 65, was granted refugee status and brought his family to the United States from the former Yugoslavia more than fifteen years ago. He has been a permanent resident for nearly that long, but the Board of Immigration Appeals has authorized the government to remove Asentic from this country because, in applying for refugee status, he failed to disclose his participation as a combatant in the Bosnian conflict during the 1990s. The Board could have granted Asentic a discretionary waiver of removal under 8 U.S.C. § 1227(a)(1)(H) but declined to do so. Asentic petitions for review. Although he presents a sympathetic case, we agree with the Board that he is removable based on fraud, and we lack jurisdiction to review the Board’s discretionary decision to deny the waiver.

Dismissed in part. Denied in part.

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7th Circuit Court of Appeals

Case Name: Felicia Madden, Administrator of the Estate of Phillip Madden and Individually, v. United States Department of Veterans Affairs

Case No.: 16-3740

Officials: BAUER, ROVNER, and SYKES, Circuit Judges

Focus: Sufficiency of Evidence – Expert Testimony

This case was brought by the estate of decedent Phillip Madden (“Madden”). The claim arises under the Federal Tort Claims Act against the United States from an ultimately fatal medical incident Madden suffered while in the care, custody, and control of the Jessie Brown V.A. Medical Hospital (“Hospital”). After a bench trial, the district court found in favor of the United States. Madden now appeals. For the reasons that follow, we affirm.

Madden argues the trial court was biased against the plaintiff throughout the entirety of the bench trial, but specifically in finding the United States’ expert witness was credible while Madden’s expert witness was not credible. In so arguing, Madden claims the discrepancies in Dr. Husain’s testimony the district court relied on were “de minimus matters.” We disagree.

Madden also challenges a litany of other factual findings regarding the standard of care provided by the Hospital. Some of these include: the Hospital’s denial of a sitter upon Mad‐ den’s wife’s request; allowing Madden to sleep in his wheelchair; the Hospital’s decision to lay Madden on the floor rather than lift him to the bed during the Code Blue; and the fact that it took the Hospital 25 minutes to intubate Madden. With no valid reason to set aside the district court’s conclusion on the credibility of each expert witness, we have no reason to conclude that the court’s factual findings based on their testimony were clearly erroneous.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Travis Oliver

Case No.: 16-3611

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

Focus: Sentencing Guidelines

Travis Oliver pled guilty to wire fraud for defrauding investors. The district court sentenced Oliver to fifty‐one months in prison followed by three years of supervised release. Oliver challenges that sentence on appeal. He argues that the district court erred by failing to con‐ sider unwarranted sentencing disparities, relying on inaccurate information, not calculating the Guidelines range for supervision, and imposing a two‐level leadership enhancement. For the reasons stated below, we affirm.

Modified in part. Affirmed in part.

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7th Circuit Court of Appeals

Case Name: Ronald Forgue v. City of Chicago, et al.

Case No.: 16-2857

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

Focus: First Amendment Retaliation

From 1986 to 2015, Plaintiff Ronald Forgue was an officer with the Chicago Police Department (“CPD”). Forgue alleges that, from 2012 to 2015, he was harassed by fellow police officers for adhering to CPD policy and procedure and for filing numerous internal complaints. Forgue filed suit against the City of Chicago and over  forty individual officers under 42 U.S.C. § 1983 for First Amendment retaliation, equal protection, civil conspiracy, and procedural due process, as well as related state law claims. The district court granted defendants’ Rule 12(b)(6) motion to dismiss Forgue’s federal claims and declined to exercise supplemental jurisdiction over his state law claims. We affirm in part and reverse in part.

Forgue contends that his complaints with the IAD and IPRA about the CPD’s treatment of his sons are entitled to First Amendment protection because they were made “as a concerned citizen and father outside of his employment duties.” He stresses that anyone mistreated by the police is free to file complaints with the IAD. Forgue’s argument is unpersuasive. Finally, Forgue claims that defendants entered into a conspiracy to violate his First Amendment and equal protection rights. Because Forgue failed to state a plausible claim of relief under these theories, the district court properly dismissed his conspiracy claim

Affirmed in part. Reversed and Remanded in part.

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7th Circuit Court of Appeals

Case Name: Todd Saxon v. Jacqueline Lashbrook, Warden,

Case No.: 15-3365

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

Focus: Sufficiency of Evidence

In 2005, petitioner-appellant Todd Saxon was convicted in Illinois state court of first degree murder, arson, and concealment of homicide. The Illinois Appellate Court affirmed his conviction. After his state court appeals were exhausted, Saxon filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, raising a number of claims, including that the evidence was insufficient to support his conviction. The district court denied the petition. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Daniel Contreras

Case No.: 16-1721; 16-1914; 16-3375

Officials: KANNE, ROVNER, and SYKES, Circuit Judges

Focus: Sentencing Guidelines

Daniel Contreras pleaded guilty to various drug-trafficking offenses in three separately charged criminal cases assigned to three different district judges. When calculating the guidelines range at sentencing, each district judge applied an upward adjustment of two offense levels after finding that Contreras maintained a premises—his home— “for the purpose of manufacturing or distributing a controlled substance.” See U.S.S.G. § 2D1.1(b)(12). Contreras appeals his concurrent 87-month sentences, arguing that each judge erred by not comparing the frequency of legal activity to the frequency of illegal activity that occurred at his residence. We affirm the sentences because the eight drug transactions that Contreras conducted at his home support a finding that drug trafficking was a primary use of the residence, not an incidental or collateral one.

Affirmed

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7th Circuit Court of Appeals

Case Name: Datqunn Sawyer v. United States of America

Case No.: 15-2508

Officials: BAUER, EASTERBROOK, and HAMILTON, Circuit Judges

Focus: Ineffective Assistance of Counsel

On November 21, 2011, a jury convicted Datqunn Sawyer of multiple counts of sex trafficking, conspiracy to commit sex trafficking, and attempted sex trafficking, in violation of 18 U.S.C. §§ 1591(a) and 1594(c). The district court sentenced Sawyer to 50 years in prison.

On September 30, 2014, after his convictions were upheld on appeal, Sawyer filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2255, setting forth eight individual claims for relief. Only one of those—a claim of ineffective assistance of trial counsel—is relevant to this appeal.

Affirmed

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7th Circuit Court of Appeals

Case Name: Paysung Long v. Randy Pfister, Warden, Stateville Correctional Center

Case No.: 13-3327

Officials: WOOD, Chief Judge, and BAUER, EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, and HAMILTON, Circuit Judges.

Focus: Sufficiency of Evidence – Testimony

In evaluating and rejecting the possibility of harmless error, we consider the trial record as a whole. Napue, 360 U.S. at 272; see also Giglio, 405 U.S. at 154 (reversing where perjured testimony was key to prosecution’s case); Long, 809 F.3d at 311. We should not close our eyes to other instances of prosecutorial overreach, including two outrages from the rebuttal closing argument, when the defense could not respond. Napue addresses not what the defense knows but the integrity of the evidence before the jury. Long contends that the state courts rendered decisions “contrary to” Napue and similar decisions.

Long presents other contentions that the panel resolved against him. 809 F.3d at 313–16 (quotation from Gone with the Wind; prosecutor’s anecdote; prosecutor’s reference to a letter not in evidence; ineffective assistance of trial counsel). We agree with the panel’s resolution of those issues and reinstate that portion of its opinion without reproducing the discussion here. In short, Long was not convicted in a fair trial. We should order that he receive a new trial.

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Amos Johnson

Case No.: 2016AP919-CR

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

Focus: Motion to Suppress Evidence Denied

Amos Johnson appeals a judgment convicting him of aggravated battery, as an act of domestic abuse, and possession of a firearm by a felon. He also appeals an order denying his motion for postconviction relief. Johnson challenges the circuit court’s decision denying his motion to suppress evidence obtained when the police searched the victim’s home without a warrant.  We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Andre M. Hicks

Case No.: 2016AP1613-CR

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

Focus: Motion for Reconsideration Denied

Andre M. Hicks appeals from an order denying his postconviction motion for a new trial based on newly discovered evidence and from an order denying his motion for reconsideration. The circuit court rejected Hicks’s argument that another man’s confession to Hicks’s crimes constitutes newly discovered evidence that entitles Hicks to a new trial. We affirm the orders.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Marcellous D. Tally-Clayborne

Case No.: 2016AP1912-CR

Officials: KESSLER, J.

Focus: Motion to Suppress Evidence Denied

Marcellous D. Tally-Clayborne appeals the judgment of conviction, entered upon a jury verdict, of one count of carrying a concealed weapon. He contends that the trial court erred in denying his motion to suppress evidence. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. M.P.

Case No.: 2016AP2104; 2016AP2105

Officials: BRASH, J.

Focus: Termination of Parental Rights

M.P. appeals from orders terminating his parental rights for N.L.P. and M.P.P. He asserts that his trial counsel was ineffective for failing to object to testimony regarding the foster parents’ proposed intent to allow contact to continue between M.P. and the children after the termination of parental rights was final, and seeks to vacate the termination of parental rights order entered in this case. We affirm.

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WI Court of Appeals – District III

Case Name: Gemini Capital Group, LLC v. Leroy Jones, et al.

Case No.: 2016AP2123

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

Focus: Summary Judgment – Issue of Material Fact

Leroy and Roger Jones (collectively, Jones) appeal an order granting summary judgment to Gemini Capital Group, LLC. Gemini filed the instant lawsuit in attempt to recover a deficiency judgment against Jones. Jones argues the circuit court improperly granted summary judgment in Gemini’s favor because: (1) Gemini failed to establish its ownership of the debt; (2) Gemini failed to prove the collateral at issue was sold in a commercially reasonable manner, as required by WIS. STAT. § 425.209(1) (2015-16); and (3) a material issue of fact exists as to whether Gemini’s complaint was timely filed, pursuant to the applicable statute of limitations.

We conclude Gemini failed to make a prima facie case for summary judgment with respect to the first two issues raised by Jones, and a genuine issue of material fact exists regarding the third issue. We therefore reverse the order granting summary judgment to Gemini and remand for further proceedings.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Levonte Cortez Scales

Case No.: 2016AP2444-CR

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

Focus: Sentencing Guidelines

Levonte Scales appeals a judgment sentencing him after revocation of his probation and an order denying his motion for resentencing. He argues the sentencing court violated his due process rights by sentencing him on false information. We reject that argument and affirm the judgment and order.

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WI Court of Appeals – District II

Case Name: Ostrenga Excavating, Inc. v. Cleveland Construction, Inc., et al.

Case No.: 2016AP7

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

Focus: Damages and Breach of Contract Claim

Cleveland Construction, Inc., (CCI) appeals from a judgment awarding Ostrenga Excavating, Inc., $55,276. Ostrenga cross appeals from the judgment, conditionally challenging the circuit court’s determination on summary judgment if we reverse the judgment entered after trial. We conclude that the jury’s verdict awarding CCI only $48,724 in damages is unsupported by any credible evidence. The absence of credible evidence to support the jury’s verdict on this issue carried through to additional questions addressing Ostrenga’s damages. Therefore, based on the current record and posture of this appeal, we order a new trial on damages. In addition, we conclude that the circuit court properly awarded CCI partial summary judgment on the implied-in-fact contractual issue, but erred in dismissing Ostrenga’s misrepresentation claims based on the economic loss doctrine, and did not err in granting Ostrenga leave to amend its complaint to add a breach of contract claim.

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WI Court of Appeals – District II

Case Name: Kevin Neelis, et al. v. The Masquers, Inc.

Case No.: 2016AP1696

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

Focus: Easement and Trespass Claims

Husband and wife Kevin and Vicki Neelis, and their business, Heritage Suites, LLC, (collectively, Heritage) appeal an order dismissing their prescriptive easement and trespass claims against the Masquers, Inc., an established and incorporated community theater group, and awarding costs to the Masquers but not to Heritage. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Robert J. Kinsley

Case No.: 2016AP1836-CR

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

Focus: Ineffective Assistance of Counsel and Sufficiency of Evidence

Robert J. Kinsley appeals from a judgment of conviction and an order denying his postconviction motion. He contends that he is entitled to a new trial due to ineffective assistance of trial counsel and the circuit court’s erroneous admission of expert testimony. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. James Charleston

Case No.: 2016AP2116-CR

Officials: REILLY, P.J.

Focus: Wisconsin Interstate Agreement on Detainers Act Violation

James Charleston appeals from a judgment of conviction for theft as party to a crime. He challenges his conviction on the ground that his trial was untimely under WIS. STAT. § 976.05, the Interstate Agreement on Detainers Act (IAD). Charleston argues that he strictly and substantially complied with the IAD requirements but officials in the State of Illinois failed to promptly inform the State of Wisconsin of Charleston’s request for final disposition. The circuit court concluded that dismissal of the Wisconsin charges was not required under § 976.05, and we affirm.

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WI Court of Appeals – District II

Case Name: City of West Bend v. Rebecca L. Smith

Case No.: 2016AP2170

Officials: REILLY, P.J.

Focus: Sufficiency of Evidence

Rebecca Smith appeals from her conviction for operating while intoxicated (OWI) and operating with a prohibited blood alcohol concentration (BAC). Smith argues that the circuit court erroneously admitted a “computer aided dispatch” (CAD) activity report into evidence and that the jury heard “improper testimony related to [Smith’s] BAC and retrograde extrapolation.” We affirm the judgment of the circuit court.

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WI Court of Appeals – District II

Case Name: Fond Du Lac County v. Christy Ann Kasten

Case No.: 2017AP343

Officials:  HAGEDORN, J.

Focus: Sufficiency of Evidence

At around 9:30 p.m. on August 16, 2016, police—responding to a call regarding an intoxicated driver—found an inebriated Christy Ann Kasten in a parked vehicle in her parents’ driveway. Following a blood test showing her over the legal limit, she was charged with operating while intoxicated (OWI) and operating with a prohibited alcohol concentration (PAC), both first offenses. After a bench trial, the circuit court dismissed the OWI charge but found Kasten guilty of the PAC charge. On appeal, Kasten maintains that the evidence was insufficient to convict her, resting largely on conflicting testimony as to when she actually drove. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Brad L. Conger

Case No.: 2017AP860-CR

Officials:  GUNDRUM, J.

Focus: Court Error – Jury Instructions

Brad Conger appeals from his judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration (PAC). Conger asserts the trial court erred in declining to strike a juror, Suzanne B., for cause from the jury panel. We conclude the court did not err and affirm.

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WI Court of Appeals – District IV

Case Name: Animal Legal Defense Fund v. Board of Regents of the University of Wisconsin, et al.

Case No.: 2016AP869

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

Focus: Statutory Interpretation

Animal Legal Defense Fund (ALDF) appeals a judgment of the circuit court dismissing ALDF’s action for a writ of mandamus to compel the Board of Regents of the University of Wisconsin and Richard R. Lane, records custodian for the University of Wisconsin’s Research Animal Resource Center (collectively, the Board of Regents), to grant ALDF access to documents withheld following an open records request by ALDF, and a declaratory judgment. The documents at issue were created by employees of the University of Wisconsin’s Institutional Animal Care and Use Committee (Animal Care and Use Committee) during a meeting of that committee. The court determined that the documents are not “record[s]” for purposes of Wisconsin’s public records law, WIS. STAT. §§ 19.31 through 19.39 (2015-16), because they are “notes … prepared for the originator’s personal use,” and granted summary judgment in favor of the Board of Regents. We conclude that the documents are not excepted from the definition of “record[s]” under WIS. STAT. § 19.32(2) and, therefore, reverse.

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WI Court of Appeals – District IV

Case Name: Dane County Department of Human Services v. S.H., et al.

Case No.: 2017AP1578; 2017AP1579; 2017AP1580

Officials: BLANCHARD, J.

Focus: Termination of Parental Rights

S.J appeals orders terminating her parental rights to J.C., J.W., and J.W. S.J. argues that the circuit court erred in denying her motion to withdraw her pleas of no contest during the grounds phase of the termination of parental rights (TPR) proceedings as to each of the three children. I affirm for the following reasons.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Janet L. Heins

Case No.: 2017 WI 93

Focus: Disciplinary Hearing

We review a report filed by Referee James W. Mohr, Jr., concluding, based on a stipulation filed by the Office of Lawyer Regulation (OLR) and Attorney Janet L. Heins, that Attorney Heins committed six counts of professional misconduct as alleged in the OLR’s complaint. The referee agrees with the parties that a public reprimand is appropriate discipline for Attorney Heins’ misconduct. The referee recommends, consistent with the stipulation, that we require Attorney Heins to submit the attorney fee dispute with her former client, J.R., to binding arbitration, that we direct her to abide by any ensuing arbitration order, and that she be assessed the full costs of the proceeding, which are $2,378.02 as of July 24, 2017.

After careful review, we accept the referee’s factual findings, conclusions of law, and recommendation. We agree that a public reprimand is appropriate here, and we agree that Attorney Heins should be required to submit her fee dispute with J.R. to binding arbitration, to comply with any resulting arbitration award, and that she shall bear the full costs of this proceeding. The OLR does not seek restitution and, based on this record, restitution is not warranted at this time.

Affirmed

Concur:

Dissent:

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