Weekly Case Digests – July 5, 2021 – July 9, 2021

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Creation Supply, Inc., v. Selective Insurance Company of the Southeast

Case No.: 20-2509

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

Focus: Statutory Interpretation – Illinois Insurance Code – Extracontractual Damages

This appeal is part of an ongoing, decade-long, three-lawsuit fight between an insurer, Selective Insurance Company of the Southeast, and its insured, Creation Supply, Inc. (“CSI”), over who owed what when.

The issue here, though, is a narrow question of statutory interpretation—whether the district court properly awarded extracontractual damages to CSI under Section 155 of the Illinois Insurance Code. Section 155 permits an insured to seek extracontractual damages from an insurer in any case in which at least one of three issues remains undecided: (1) the insurer’s liability under the policy, (2) the amount of the loss payable under the policy, or (3) whether there was an unreasonable delay in settling a claim.

None of these three threshold issues remains undecided here: (1) Selective’s liability under its policy with CSI was resolved by the Illinois Appellate Court in 2015; (2) the amount of loss payable by Selective to CSI under the policy was determined by the Illinois Appellate Court in 2017; and (3) CSI does not seek recovery for any unreasonable delay by Selective in settling CSI’s claim. In summary, none of CSI’s extracontractual issues remains undecided. As a result, CSI cannot pursue Section 155 damages in this action.

This result is admittedly atypical. Section 155 claims usually proceed right alongside breach-of-contract claims, such as the other claim brought by CSI in this suit. But the lengthy history of this case breaks the mold. For the foregoing reasons, we REVERSE the decision of the district court and REMAND the case for the district court to dismiss CSI’s Section 155 claim and to carry out further proceedings consistent with this opinion to resolve the remaining issue of breach-of-contract damages. Further, because this appeal has merit, CSI’s motion for sanctions under Federal Rule is Appellate Procedure 38 is DENIED.

Reversed and remanded in part. Denied in part.

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7^th Circuit Court of Appeals

Case Name: Amit Sinha v. Bradley University

Case No.: 20-1848

Officials: ROVNER, BRENNAN, and ST. EVE, Circuit Judges.

Focus: ADEA Violation – Retaliation Claim – Time-barred

Amit Sinha appeals the rejection of his retaliation claims against his employer, Bradley University, under the Age Discrimination in Employment Act. One of Sinha’s claims falls short for lack of proximate cause under the cat’s paw theory of liability, and the other claim is time-barred. So we affirm the district court’s grant of summary judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Rex Hammond

Case No.: 19-2357

Officials: SYKES, Chief Judge, and KANNE and ST. EVE, Circuit Judges.

Focus: Jury Instructions

Over the course of a three-week crime spree in October 2017, Rex Hammond robbed, or attempted to rob, seven stores at gunpoint in Indiana and Michigan. Five of the seven incidents took place in northern Indiana, where the government charged Hammond with five counts of Hobbs Act robbery and several attendant weapons charges. The charges included one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) and two counts of brandishing a weapon during a crime of violence in violation of 18 U.S.C. § 924(c). A jury convicted Hammond of all charges, and the district court sentenced him to forty-seven years in prison.

Hammond now appeals his conviction and sentence. First, he argues that the district court should have suppressed certain cell site location information that law enforcement collected to locate him during his robbery spree and to confirm his location on the days of the robberies, based on Carpenter v. United States, 138 S. Ct. 2206 (2018). He also argues that the district court erred in instructing the jury regarding the felon-in-possession charge under Rehaif v. United States, 139 S. Ct. 2191 (2019). Finally, he claims that Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c) or under the Sentencing Guidelines, so his § 924(c) conviction must be overturned, and his sentence vacated. We reject each of these arguments and affirm Hammond’s conviction and sentence in all respects.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Emmanuel L. Hart

Case No.: 19-3242

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

Focus: 6^th Amendment Violation – Confrontation Clause

Emmanuel Hart was convicted by a jury of robbing two Chicago banks in violation of 18 U.S.C. § 2113(a). On appeal, he argues that the district court erred when it precluded him from recalling two government witnesses during his case-in-chief. Finding no error, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. David A. Bridgewater

Case No.: 20-2413

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

Focus: First Step Act Violation – Motion for Compassionate Release

In his plea agreement, defendant David Bridgewater waived the right to seek any modification of his sentence. Nonetheless, in light of the current pandemic, Bridgewater filed in the district court a motion for compassionate release under the First Step Act of 2018, as codified in 18 U.S.C. § 3582(c)(1)(A). He seeks release based on medical conditions that he says make him vulnerable to serious illness or death from the spread of COVID-19 in prison. Bridgewater argues that his plea waiver does not bar this motion because the waiver does not cover compassionate release, was not voluntary, and, in any event, should be unenforceable under contract-law principles of public policy and unconscionability. The district court rejected these arguments. We dismiss the appeal. Bridgewater’s knowing and voluntary waiver of the right to seek compassionate release under the First Step Act is enforceable.

Dismissed

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7^th Circuit Court of Appeals

Case Name: Kenneth Smith v. Deanna Brookhart, Warden, Lawrence Correctional Center

Case No.: 20-1588; 20-1666

Officials: WOOD, HAMILTON, and ST. EVE, Circuit Judges.

Focus: Sufficiency of Evidence – Unconditional Writ

Kenneth Smith has been in state prison for nineteen years for a murder and robbery that he insists he did not commit. He achieved limited success in challenging his convictions on March 10, 2020, when the district court held that he is entitled to release unless the state decides to retry him. Smith v. Brookhart, No. 15-CV-00271, 2020 WL 1157356, at *33 (N.D. Ill. Mar. 10, 2020). But Smith was seeking more: an unconditional writ based on the insufficiency of the evidence. See 28 U.S.C. § 2254(d)(2); Jackson v. Virginia, 443 U.S. 307 (1979). The state has now appealed from the issuance of the conditional writ, and Smith has cross-appealed from the denial of the unconditional writ.

Even taking the highly deferential view required by section 2254(d), we find that the trial evidence failed to support Smith’s conviction beyond a reasonable doubt and that the Illinois Appellate Court was not just wrong, but unreasonable, in holding otherwise. We thus reverse the district court’s judgment and order an unconditional issuance of the writ.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: John F. Cloutier v. GoJet Airlines, LLC,

Case No.: 19-1322; 19-1773; 19-1823; 19-3279

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

Focus: FMLA Violation – Collective Bargaining Agreement – Arbitration

Plaintiff-appellee and cross-appellant John F. Cloutier was a pilot for defendant-appellant and cross-appellee GoJet Airlines, LLC. Cloutier learned he had type II diabetes on June 2, 2014, which meant he could not resume flying for GoJet until the Federal Aviation Administration (“FAA”) confirmed he could safely return. During this period—in which Cloutier took medication and underwent medical testing necessary for FAA approval—GoJet granted Cloutier medical leave under the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. Once GoJet determined that Cloutier would not be able to return to flying within the maximum twelve weeks of leave to which he was entitled, however, GoJet terminated him.

This dispute first arose when Cloutier filed a grievance asserting FMLA violations pursuant to the “Collective Bargaining Agreement” between GoJet and his union. The parties battled in arbitration to no avail. Then turning to the courts, Cloutier initiated this complex lawsuit, suing GoJet for violations of the FMLA and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. The jury reached a verdict in Cloutier’s favor, finding GoJet had interfered with his FMLA rights and retaliated against him for exercising his FMLA rights. The district court then granted him back pay, liquidated damages, and front pay.

On appeal, as it did below, GoJet presents an array of issues for our consideration. GoJet argues that this dispute should never have been allowed in litigation because the parties’ Collective Bargaining Agreement required them to arbitrate FMLA claims. Failing that, GoJet asserts that the district court erred in denying its motion for judgment as a matter of law on several different grounds. For his own part, Cloutier cross-appealed to present an additional set of issues attacking the district court’s findings and calculations connected to Cloutier’s damages award. We affirm in part and reverse in part.

Affirmed in part. Reversed in part.

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7^th Circuit Court of Appeals

Case Name: Mario Reyes v. Robert Fishel, et al.,

Case No.: 19-1082; 19-1084

Officials: KANNE, BRENNAN, and SCUDDER, Circuit Judges.

Focus: PLRA Violation – IFP Application

Under the Prison Litigation Reform Act (“PLRA”), prisoners filing petitions to proceed in a suit in forma pauperis (“IFP”) can’t deliberately misrepresent their financial status. If a prisoner does so, the case must be dismissed. Mario Reyes, a prisoner in the Illinois Department of Corrections, filed a § 1983 action in 2017 and another in 2018 in federal court and petitioned to proceed IFP in both cases. The district court initially granted those IFP petitions but later dismissed both cases after the defendants presented evidence showing that Reyes deliberately misled the court about his finances on his 2017 IFP application.

We affirm the dismissal of the 2017 case because the district court did not clearly err in finding that Reyes was dishonest about his financial status. But as for the 2018 case, the court did not give Reyes a chance to explain any potential issues with his IFP application—and the defendants concede that he should have been given that opportunity. We thus vacate the order dismissing the second case and remand it for further proceedings.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. David Gibson, et al.,

Case No.: 20-1236; 20-2234

Officials: SYKES, Chief Judge, and MANION and ST. EVE, Circuit Judges.

Focus: Motion to Suppress Evidence Denied

An informant gave South Bend police the number to a phone that drug dealers in the South Bend area were supposedly using to sell drugs. To confirm this tip, officers carried out a series of controlled buys in which confidential informants or undercover officers called the number and followed instructions to buy heroin. Relying on the controlled buys, officers submitted an affidavit to a state court judge requesting an order for the phone’s service provider to share 30 days of precise, real-time GPS location data for the phone. The state court judge issued a “court order” granting the request. Relying on similar affidavits, officers later obtained two more court orders authorizing an additional 60 days of real-time tracking.

The investigation ultimately led officers to two men at the top of the drug-trafficking conspiracy: David Gibson and Jerry Harris. Both defendants were federally indicted for conspiring to distribute heroin. Before trial, the district court denied their motion to suppress evidence obtained through the cellphone tracking. The court treated the state court orders as valid search warrants for the tracking. At trial, officers and cooperators testified to the large-scale drug-trafficking scheme that the defendants had overseen. The jury ultimately convicted both defendants of conspiring to distribute one kilogram or more of heroin. At sentencing, the district court found that the defendants had conspired to distribute a total of 10.5 kilograms of heroin. The defendants now appeal the court’s denial of their motion to suppress. Harris also challenges the drug-quantity calculations at trial and sentencing, the court’s limits on his cross-examination of the cooperators at trial, and his sentence. We affirm the district court’s well-reasoned rulings across the board.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Blong Simba Vang

Case No.: 2018AP1730-CR

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

Focus: Court Error – Standard of Reasonableness – TLO

Blong Vang appeals a judgment of conviction, following his guilty plea, on one count of conspiracy to commit child abuse—intentionally cause bodily harm, contrary to WIS. STAT. §§ 948.03(2)(b) and 939.31 (2019-20). Vang was arrested after law enforcement discovered weapons in his vehicle located in an Appleton East High School (Appleton East) parking lot. The circuit court denied Vang’s motion to suppress evidence of the weapons and statements he made after his arrest. In doing so it relied upon the reasonableness standard articulated in New Jersey v. T.L.O., 469 U.S. 325 (1985). That standard permits the search of a student on school grounds without probable cause or a warrant if the search is reasonable under all of the circumstances. Reasonableness of a search under this standard is determined using a two-part test: (1) the search must be “justified at its inception”; and (2) the search must be “reasonably related in scope to the circumstances which justified the interference in the first place.” Id. at 341-42 (citation omitted).

Vang contends that the circuit court erred in determining that his vehicle search was subject to the T.L.O. reasonableness standard. Specifically, Vang argues that probable cause was needed to search his vehicle because Vang was not a student of the high school, the search was conducted by law enforcement, and the investigation leading to the search was instigated by a school resource officer.

We conclude that the circuit court properly applied the T.L.O. “reasonableness, under all the circumstances” standard to deny Vang’s suppression motion. As the federal district court in United States v. Aguilera, 287 F.Supp. 2d 1204, 1209 (E.D. Cal. 2003), recognized, the duty of school officials to keep students safe applies equally to threats posed by students or non-students. We therefore conclude that standard applies equally to searches on school grounds of both students and non-students of the school where the search occurs.

Further, the decision here to search Vang’s vehicle was made by school officials, not by law enforcement. Finally, the search was justified at its inception so as to ensure the safety of students, and it was reasonably related in scope to that safety concern. We therefore affirm Vang’s judgment of conviction.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: Cole J. Kretman, et al., v. American Family Mutual Insurance Company

Case No.: 2019AP2092

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

Focus: Declaratory Judgment – Insurance Policy Limitation

Cole and Joseph Kretman (collectively “Kretman”) appeal from a declaratory judgment upholding an insurance policy limitation for injuries caused by a “dangerous dog.” Kretman argues American Family Mutual Insurance Company (American Family) failed to provide its insured proper notice of a policy change that reduced coverage for injuries caused by a “dangerous dog.” Kretman also argues the circuit court erred by concluding the dog that bit him was a “dangerous dog” within the meaning of the American Family policy. We reject Kretman’s arguments and affirm.

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WI Court of Appeals – District I

Case Name: Timothy Rave v. SVA Healthcare Services, LLC,

Case No.: 2019AP2236

Officials: Brash, P.J., Donald and White, JJ.

Focus: Abuse of Discretion – Class Certification

SVA Healthcare Services, LLC, (“SVA”) appeals an order certifying a class and appointing plaintiff Timothy Rave as class representative. The sole issue on appeal is whether the circuit court properly exercised its discretion when it granted Rave’s motion for class certification. SVA argues that there are factual and legal issues that preclude Rave from satisfying the requirements set forth in WIS. STAT. § 803.08 (2019-20). We disagree and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Adamm Linton

Case No.: 2019AP2264-CR

Officials: Dugan, Graham and White, JJ.

Focus: Sentence Modification

Adamm Linton appeals the circuit court’s denial of his motion requesting sentence modification on the basis that Miller v. Alabama, 567 U.S. 460 (2012), represents a change in the law applicable to sentencing juveniles and is a new factor entitling him to sentence modification. We conclude that the specific holding of Miller is inapplicable here. Furthermore, we conclude that the “children are different” principle that Linton argues was announced and applied in Miller is not a new principle for the circuit court to consider when sentencing juveniles. Therefore, Miller is not a new factor entitling Linton to sentence modification, and we affirm the postconviction court’s denial of Linton’s motion.

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WI Court of Appeals – District III

Case Name: ADEM LLC, v. Wade Weckler

Case No.: 2020AP541

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

Focus: Court Error – Exclusion of Testimony

Wade Weckler appeals a judgment dismissing his adverse possession counterclaim against ADEM LLC. Weckler argues the circuit court erred in several respects by concluding that he failed to establish adverse possession of the disputed property. In addition, Weckler argues that the court erroneously excluded certain testimony and improperly considered the familial relationships between some of the individuals who owned the properties involved in this case. We reject Weckler’s arguments and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Anthony D. Nemetz

Case No.: 2020AP1034-CR

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

Focus: Court Error –DNA Evidence – Statutory Notice

Anthony Nemetz appeals from a judgment convicting him of multiple criminal offenses and an order denying his postconviction motion. Nemetz claims he is entitled to a new trial based upon the State’s failure to provide notice pursuant to WIS. STAT. § 971.23(9) (2019-20), that it would be using DNA evidence at trial. We conclude the State’s failure to provide statutory notice was harmless error and therefore affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Alex J. Premo

Case No.: 2020AP1132-CR

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

Focus: Probable Cause – Suppression of Evidence

Alex Premo seeks review of a suppression ruling that led him to plead guilty on a drug charge. Premo contends the circuit court’s determination of probable cause for his arrest was based upon an assumption of facts not in evidence. We conclude that the totality of the circumstances supported a determination of probable cause even without consideration of the challenged facts. We therefore affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Scott William Forrett

Case No.: 2019AP1850-CR

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

Focus: 4^th Amendment Violation – Unreasonable Search

Scott William Forrett challenges his judgment of conviction for operating a motor vehicle while intoxicated, seventh offense (OWI), and an order denying his motion for postconviction relief. He challenges as unconstitutional Wisconsin’s statutory scheme permitting the use of his prior refusal to submit to a warrantless blood test after arrest to increase the criminal penalty for a subsequent OWI. We agree and as such, reverse and remand for further proceedings.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. B.W.R.,

Case No.: 2020AP1726

Officials: NEUBAUER, C.J.

Focus: Probable Cause – Unlawful Entry

Brady appeals from a delinquency order and the denial of his motion to suppress evidence obtained following law enforcement officers’ warrantless entry into his apartment. He asserts the entry was unlawful and all evidence flowing from it must be suppressed. Because we conclude the entry was justified by the existence of probable cause and exigent circumstances, we disagree and affirm.

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WI Court of Appeals – District IV

Case Name: Janelle Lynn Schimke, v. Mark John Schimke

Case No.: 2019AP2362

Officials: Fitzpatrick, P.J., Graham, and Nashold, JJ.

Focus: Appellate Jurisdiction

Approximately nine years after Janelle Casey and Mark Schimke divorced, Casey petitioned for a constructive trust, alleging that Schimke had failed to make required financial disclosures under WIS. STAT. § 767.127 (2019-20) at the time of divorce. The circuit court dismissed Casey’s petition, and Casey filed a motion for reconsideration, which the court also denied. In an order from this court dated January 31, 2020, we noted that Casey had not timely appealed the order dismissing her petition, but had sought to appeal the order denying her motion for reconsideration. We requested that the parties address the issue of jurisdiction in their briefing. Because we conclude that we lack appellate jurisdiction over Casey’s appeal, we dismiss the appeal.

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WI Court of Appeals – District IV

Case Name: Aquilla Jessie v. State of Wisconsin, et al.,

Case No.: 2020AP462

Officials: Blanchard, Kloppenburg, and Nashold, JJ.

Focus: Sovereign Immunity 

Aquilla Jessie appeals a circuit court order dismissing his petition for declaratory judgment. On appeal, Jessie argues that the circuit court erred when it dismissed his petition on the basis of sovereign immunity. We affirm the order of the circuit court.

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WI Court of Appeals – District IV

Case Name: Tyler A. Mueller, et al., v. Bull’s Eye Sport Shop, LLC, et al.,

Case No.: 2020AP978

Officials: Fitzpatrick, P.J., Blanchard, and Graham, JJ.

Focus: Abuse of Discretion – Sanctions

Tyler Mueller was injured while hunting when a gun he was holding discharged. The gun was owned by Tyler’s brother, Jordan Mueller. Tyler brought this lawsuit against Bull’s Eye Sports Shop, the business that assembled the gun and sold it to Jordan, based on Bull’s Eye’s alleged negligence. Bull’s Eye brought a third-party claim against Jordan, and Tyler later brought a claim against Jordan, both alleging that Jordan’s negligence caused Tyler’s injuries.

Jordan was immediately aware of the incident in which Tyler was injured and later became aware of potential litigation regarding the gun and Tyler’s injuries. Nevertheless, after becoming aware of potential litigation, Jordan had the gun materially altered, and a part of the gun is still missing. Both Tyler and Bull’s Eye brought motions in the circuit court asking that Jordan be sanctioned for his spoliation of the gun evidence. Prior to the circuit court ruling on those motions, Tyler and Jordan entered into a Pierringer release, and Jordan was dismissed from this action based on the terms of that release. The circuit court found that Jordan intentionally spoliated evidence regarding the gun. As a sanction for those intentional acts of Jordan, the circuit court ordered that, at the trial in this case, the jury will receive an instruction from the court stating that the jury may draw an adverse inference against Jordan regarding that spoliated evidence.

Bull’s Eye appeals and makes two primary arguments. First, Bull’s Eye contends that the circuit court erred in deciding which sanction to impose against Jordan for his spoliation of the gun evidence. Bull’s Eye argues that the circuit court should have dismissed Tyler’s claims against it as a sanction for Jordan’s spoliation of evidence. We reject Bull’s Eye’s argument and conclude that the circuit court did not erroneously exercise its discretion in selecting the spoliation inference instruction as the sanction. Second, Bull’s Eye argues that Tyler’s claim against Bull’s Eye must be dismissed based on the following chain of propositions advanced by Bull’s Eye. Indemnity principles require that, based on Jordan’s intentional spoliation of evidence, Jordan must indemnify Bull’s Eye for any negligent conduct of Bull’s Eye that caused Tyler’s injuries. By operation of the Pierringer release between Tyler and Jordan, Jordan’s intentional conduct in spoliating evidence is imputed to Tyler, which in turn requires that Tyler indemnify Bull’s Eye for any negligent conduct of Bull’s Eye that caused Tyler’s injuries. As a result, according to Bull’s Eye, Tyler’s claim against Bull’s Eye must be dismissed. We reject Bull’s Eye’s argument because, under these circumstances, Jordan does not owe an indemnity obligation to Bull’s Eye based on his intentional spoliation of evidence.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: Rock County v. J.J.K.,

Case No.: 2020AP1085

Officials: NASHOLD, J.

Focus: Involuntary Commitment and Medication

J.J.K. appeals an involuntary commitment order entered pursuant to WIS. STAT. § 51.20 and an involuntary medication order entered pursuant to WIS. STAT. § 51.61(1)(g)3. After first addressing the issue of mootness, J.J.K. argues that: (1) the circuit court’s admission of, and reliance on, hearsay evidence of dangerousness constitutes plain error; (2) the circuit court failed to find, and the County failed to prove, that J.J.K. was dangerous to himself or others as required by § 51.20(1)(a)2.; and (3) the County did not prove that J.J.K. was substantially incapable of applying an understanding of the advantages and disadvantages of medication to his condition within the meaning of § 51.61(1)(g)4. I affirm.

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WI Court of Appeals – District IV

Case Name: Shawna Hathaway v. Ronald J. Greenwood

Case No.: 2020AP1871

Officials: GRAHAM, J.

Focus: Sufficiency of Evidence

Ronald J. Greenwood appeals from a judgment of replevin requiring him to return a dog to Shawna Hathaway. I conclude that the evidence is sufficient to support the circuit court’s determination that Hathaway is the dog’s legal owner. Accordingly, I affirm.

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WI Court of Appeals – District IV

Case Name: Rock County v. J.J.K.,

Case No.: 2020AP1085

Officials: Sheila T. Reiff Clerk of Court of Appeals

Focus: Order Correcting Opinion

PLEASE TAKE NOTICE that corrections were made to paragraphs 1 and 39 in the above-captioned opinion which was released on April 29, 2021. A corrected electronic version in its entirety is available on the court’s website at www.wicourts.gov.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Laura L. Waite

Case No.: 2021 WI 38

Focus: Attorney Disciplinary Proceedings

The Court entered the following order on this date: On March 15, 2021, Attorney Laura Waite filed a request pursuant to SCR 22.34(11), for indefinite suspension of her license to practice law in this state due to her medical incapacity. The Office of Lawyer Regulation filed a response supporting that request and a summary of its investigation into the medical incapacity allegations against Attorney Waite. Attorney Waite acknowledges that she cannot successfully defend herself against the medical incapacity allegations. Based upon these considerations, IT IS ORDERED that the request is granted and, effective the date of this order, Attorney Laura Waite’s license to practice law in this state is indefinitely suspended.

Attorney’s license suspended

Concur:

Dissent:

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Supreme Court Digests

United States Supreme Court

Case Name: Alaska v. Sean Wright

Case No.: 20-940

Focus: Writ of Certiorari

In 2009, an Alaska jury convicted Sean Wright of 13 counts of sexual abuse of a minor. See State v. Wright, 404 P. 3d 166, 170 (Alaska 2017). Wright finished serving his sentence in Alaska in 2016, and shortly thereafter he moved to Tennessee. Once there, he failed to register as a sex offender as required by federal law. See Sex Offender Registration and Notification Act, 120 Stat. 591, 593, 34 U. S. C. §§20911, 20913. Wright pleaded guilty to one count of failure to register, see 18 U. S. C. §2250(a), and ultimately received a sentence of time served along with five years of supervised release. See Judgment in United States v. Wright, No. 1:17–cr–00112, ECF Doc. No. 66 (ED Tenn.).

During the course of those federal proceedings, Wright filed a petition for a writ of habeas corpus in the United States District Court for the District of Alaska pursuant to 28 U. S. C. §§2241 and 2254. He argued that the Alaska Supreme Court had unreasonably applied clearly established federal law when it denied his Sixth Amendment claims and affirmed his 2009 state conviction and sentence. The District Court denied the motion on the threshold ground that Wright was not “in custody pursuant to the judgment of a State court.” §2254(a). Noting that a proper motion under §2254(a) requires more than merely being “in custody” somewhere, the court reasoned that “the proper procedure for Wright to challenge his current federal custody would be a motion filed in the Eastern District of Tennessee pursuant to 28 U. S. C. §2255.” App. to Pet. for Cert. 16a.

The Court of Appeals reversed. In its view, Wright’s state conviction was “‘a necessary predicate’” to his federal conviction, 819 Fed. Appx. 544, 545 (CA9 2020) (quoting Zichko v. Idaho, 247 F. 3d 1015, 1019 (CA9 2001)), so Wright was in fact in custody pursuant to the judgment of a state court. The panel declined to assess the District Court’s view that §2255, rather than §2254, provided the proper route for Wright to challenge his current custody. 819 Fed. Appx., at 546, n. 1. One judge concurred and asserted that §2254 was the proper mechanism “because Wright is not attacking the constitutionality of his federal conviction for failing to register as a sex offender in Tennessee; he is collaterally attacking the constitutionality of his predicate Alaska conviction for sexual abuse of a minor.” Id., at 546. The Court of Appeals clearly erred. Section 2254(a) permits a federal court to entertain an application for a writ of habeas corpus on behalf of a person “in custody pursuant to the judgment of a State court.”

That Wright’s state conviction served as a predicate for his federal conviction thus did not render him “in custody pursuant to the judgment of a State court” under §2254(a). If Wright’s second conviction had been for a state crime, he independently could have satisfied §2254(a)’s “in custody” requirement, see Lackawanna County District Attorney v. Coss, 532 U. S. 394, 401–402 (2001), though his ability to attack the first conviction by that means would have been limited, see id., at 402–404. Wright could not satisfy §2254(a) on that independent basis for the simple reason that his second judgment was entered by a federal court.

We express no view on the other theories Wright advanced before the District Court for meeting the requirements of §2254(a). We grant the petition for a writ of certiorari, vacate the judgment of the United States Court of Appeals for the Ninth Circuit, and remand the case to that court for further proceedings consistent with this opinion.

Petition granted. Vacated in part and remanded in part.

Dissenting:

Concurring:

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United States Supreme Court

Case Name: Agusto Niz-Chavez v. Merrick B. Garland, Attorney General

Case No.: 19-863

Focus: Immigration – Stop-time Rule

Anyone who has applied for a passport, filed for Social Security benefits, or sought a license understands the government’s affinity for forms. Make a mistake or skip a page? Go back and try again, sometimes with a penalty for the trouble. But it turns out the federal government finds some of its forms frustrating too. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009–546, requires the government to serve “a notice to appear” on individuals it wishes to remove from this country. At first blush, a notice to appear might seem to be just that—a single document containing all the information an individual needs to know about his removal hearing. But, the government says, supplying so much information in a single form is too taxing. It needs more flexibility, allowing its officials to provide information in separate mailings (as many as they wish) over time (as long as they find convenient). The question for us is whether the law Congress adopted tolerates the government’s preferred practice. The modest threshold Congress provided to invoke the stop-time rule is clear from the text and must be complied with here. Pp. 13–16.

Reversed

Dissenting: KAVANAUGH, J., filed a dissenting opinion, in which ROBERTS, C. J., and ALITO, J., joined.

Concurring:

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