Majority, Concurring, and Dissenting Opinions by Judge Neil M. Gorsuch
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Majority, Concurring, and Dissenting
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R44772
Majority, Concurring, and Dissenting Opinions by Judge Neil M. Gorsuch
Summary
On January 31, 2017, President Trump announced the nomination of Judge Neil M. Gorsuch of
the U.S. Court of Appeals for the Tenth Circuit (Tenth Circuit) to fill the vacancy on the Supreme
Court left by the death of Justice Antonin Scalia on February 13, 2016. Judge Gorsuch has served
as a judge on the Tenth Circuit since August 2006, and has also sat, by designation, on the U.S.
Court of Appeals for the Ninth Circuit and the U.S. Court of Appeals for the District of Columbia
Circuit.
This report provides a tabular listing of cases in which Judge Gorsuch authored a majority,
concurring, or dissenting opinion. The opinions are categorized into three tables: Table 1
identifies opinions authored by Judge Gorsuch on behalf of a unanimous panel; Table 2 contains
controlling opinions authored by Judge Gorsuch in which one or more panelists wrote a separate
opinion; and Table 3 lists cases where Judge Gorsuch wrote a concurring or dissenting opinion
(decisions where Judge Gorsuch wrote both the majority opinion and a separate concurrence are
included in this final table). Opinions are identified and briefly discussed in each table in reverse
chronological order. The opinions are also categorized by their primary legal subject.
While this report identifies and briefly describes judicial opinions authored by Judge Gorsuch
during his time on the federal court, it does not analyze the implications of his judicial opinions or
suggest how he might approach legal issues if appointed to the Supreme Court. Those matters
will be discussed in a forthcoming CRS report. Key CRS products related to the Supreme Court
vacancy and Judge Gorsuch’s nomination are collected in CRS Legal Sidebar WSLG1526,
Vacancy on the Supreme Court: CRS Products, by (name redacted) and (name redacted).
Congressional Research Service
Majority, Concurring, and Dissenting Opinions by Judge Neil M. Gorsuch
Contents
Tables
Table 1. Opinions Authored by Judge Gorsuch for a Unanimous Panel ......................................... 5
Table 2. Majority Opinions Authored by Judge Gorsuch for Which Another Judge Wrote
a Concurrence or Dissent ......................................................................................................... 109
Table 3. Concurring and Dissenting Opinions Authored by Judge Gorsuch ............................... 121
Contacts
Author Contact Information ........................................................................................................ 152
Congressional Research Service
Majority, Concurring, and Dissenting Opinions by Judge Neil M. Gorsuch
n January 31, 2017, President Trump announced the nomination of Judge Neil M.
Gorsuch of the U.S. Court of Appeals for the Tenth Circuit (Tenth Circuit) to fill the
vacancy on the Supreme Court left by the death of Justice Antonin Scalia on February 13,
2016.1 Judge Gorsuch has served as an appellate judge for the Tenth Circuit since August 2006,
and has also sat, by designation,2 on both the U.S. Court of Appeals for the Ninth Circuit (Ninth
Circuit) and the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit).
O
During his tenure on the bench, Judge Gorsuch has served on three-judge or en banc Tenth Circuit
panels that have issued over 2,700 judicial decisions.3 He has also sat, by designation, on Ninth
Circuit panels that issued decisions in 11 cases (in which Judge Gorsuch authored dissenting
opinions in two cases) and D.C. Circuit panels that issued decisions in six cases (for which Judge
Gorsuch authored no opinions).4
The Tenth Circuit, like appellate courts for other numbered circuits, generally reviews cases
initiated within the geographic region over which the circuit has jurisdiction; in the case of the
Tenth Circuit, this includes the states of Colorado, Kansas, Mexico, Wyoming, and Utah, along
with portions of Yellowstone National Park reaching into Idaho and Montana.5 While the Tenth
Circuit’s docket includes cases touching upon a wide range of legal topics, including
administrative law, bankruptcy, contract disputes, immigration, intellectual property, and Indian
Law, a significant portion of the docket involves criminal law and claims brought by federal or
state prisoners concerning their convictions or subsequent incarceration.6 Unlike the Supreme
Court, which enjoys “almost complete discretion” in selecting its cases, the federal courts of
appeals are required to adjudicate many cases as a matter of law and, as a result, tend to hear
1
The White House, President Trump Announces Supreme Court of the United States Nominee,
https://www.whitehouse.gov/featured-videos/video/2017/01/31/president-trump-announces-supreme-court-unitedstates-nominee (last accessed Feb. 22, 2017).
2
U.S. Court of Appeals for the Tenth Circuit, General Information, https://www.ca10.uscourts.gov/clerk (last accessed
Feb. 22, 2017).
3
When responding to a questionnaire from the Senate Committee on the Judiciary, Judge Gorsuch estimated that he
had sat on panels that had issued “approximately 2,750” decisions. U.S. Senate Committee on the Judiciary, Responses
to Questionnaire for the Nominee of the Supreme Court (public version), at 25, https://www.judiciary.senate.gov/imo/
media/doc/Neil%20M.%20Gorsuch%20SJQ%20(Public).pdf. CRS searched all federal cases in the Westlaw legal
database using the search strategy pa(Gorsuch) or ju(Gorsuch) or wb(Gorsuch), which are the segments for “Panel,”
“Judge,” and “WrittenBy,” and which would presumably identify all cases identified by Westlaw editors on which
Judge Gorsuch sat on a circuit panel (including, but not limited to, those cases where he wrote the panel’s opinion) and
retrieved 2,731 results. However, searching federal cases in LexisAdvance, another legal database, for ju(gorsuch),
which would identify the cases where Lexis editors identified Judge Gorsuch as a member of a panel that issued an
opinion, retrieved 2,860 results. A review of these results revealed instances where a single case generated multiple
documents. For example, a Tenth Circuit ruling in Allen v. Workman appeared in the LexisAdvance results as two
separate documents: Allen v. Workman, 464 F. App’x 768 (10th Cir. Apr. 19, 2012) and Allen v. Workman, 2012 U.S.
App. Lexis 20121 (10th Cir. Apr. 12, 2012). However, Westlaw returned only one of these documents, 464 F. App’x
768 (10th Cir. 2012).
4
The Chief Justice of the U.S. Supreme Court “may, in the public interest, designate and assign temporarily any circuit
judge to act as circuit judge in another circuit upon request by the chief judge or circuit justice of such circuit.” 28
U.S.C. § 291(a). Judge Gorsuch’s designation to sit as a visiting judge was pursuant to this process. See Hurt v. United
States Dist. Court Judges, 258 F. App’x 341, n.1 (D.C. Cir. 2007).
5
General Information on the Tenth Circuit, supra note 2.
6
Admin. Office of the U.S. Courts, Federal Court Management Statistics, U.S. Court of Appeals - Judicial Caseload
Profiled, at 23 (Sept. 2016), http://www.uscourts.gov/sites/default/files/data_tables/
fcms_na_appprofile0930.2016_2.pdf (categorizing appeals filed with, and terminated by, the Tenth Circuit between
Sept. 2010 and Sept. 2016, and showing that over 40 percent, and in some years more than half, of the appellate docket
consisted of criminal cases or claims brought by prisoners).
Congressional Research Service
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Majority, Concurring, and Dissenting Opinions by Judge Neil M. Gorsuch
“many routine cases in which the legal rules are uncontroverted.”7 Perhaps indicative of the
nature of federal appellate work, the vast majority of cases decided by three-judge panels of
federal courts of appeals are decided without dissent,8 and the Tenth Circuit is no exception.9
This report provides tabular listings of the roughly 854 cases in which Judge Gorsuch authored a
majority, concurring, or dissenting opinion. Arguably, these written opinions provide the greatest
insight into Judge Gorsuch’s judicial approach, as a judge’s vote or decision to join an opinion
authored by a colleague may not necessarily represent full agreement with a colleague’s views.10
Accordingly, this report does not include cases in which Judge Gorsuch sat on a reviewing
judicial panel, but did not author an opinion. Additionally, instances where Judge Gorsuch was
part of a panel that issued a per curiam opinion, in which no particular judge was credited as an
author, are omitted from this report.11 The report also does not address subsequent legal
proceedings that may have occurred after a cited decision was issued.12
The opinions discussed in this report are categorized into three tables: Table 1 identifies opinions
authored by Judge Gorsuch on behalf of a unanimous panel; Table 2 contains controlling
opinions authored by Judge Gorsuch in which one or more panelists wrote a separate opinion; and
Table 3 lists cases where Judge Gorsuch wrote a concurring or dissenting opinion, including
cases where Judge Gorsuch wrote both the majority opinion and a separate concurrence.13 A
concurring opinion is identified as a “concurrence in the judgment”—that is, an opinion where
the author agrees with the ultimate conclusion reached by the majority but not the manner in
which it was reached—only when the concurrence is expressly labeled as such.14
7
Louis J. Sirico, Jr., The Citing of Law Reviews by the United States Courts of Appeals: An Empirical Analysis, 45 U.
MIAMI L. REV. 1051, 1052 n.8 (1991); see generally HON. RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND
REFORM 367 (2009) (observing that “more of the work of [the federal appellate] courts really is technical.... Most of the
appeals they get can be decided uncontroversially by the application of settled principles”).
8
See FRANK B. CROSS, DECISION MAKING IN THE U.S. COURTS OF APPEALS 160 (2007) (noting the “relative paucity of
circuit court panel dissents”).
9
See Christopher A. Cotropia, Determining Uniformity Within the Federal Circuit by Measuring Dissent and En Banc
Review, 43 LOY. L.A. L. REV. 801, 815 (2010) (noting that from 1998 to 2009, 2.54% of the opinions issued by the
Tenth Circuit garnered a dissent); Hon. Neil M. Gorsuch, Law’s Irony, 37 HARV. J.L. & PUB. POL’Y 743, 753 (2014)
(“Over ninety percent of the decisions issued by my court are unanimous; that’s pretty typical of the federal appellate
courts.”).
10
See Hon. Ruth Bader Ginsburg, as quoted in Irin Carmon, Opinion, Justice Ginsburg’s Cautious Radicalism, N.Y.
TIMES (Oct. 24, 2015), http://www.nytimes.com/2015/10/25/opinion/sunday/justice-ginsburgs-cautious-radicalism.html
(observing that “an opinion of the court very often reflects views that are not 100 percent what the opinion author
would do, were she writing for herself”); Steven D. Smith, Lessons from Lincoln: A Comment on Levinson, 38 PEPP. L.
REV. 915, 924 (2011) (“[T]he fact that a judge joins in a majority opinion may not be taken as indicating complete
agreement. Rather, silent acquiescence may be understood to mean something more like ‘I accept the outcome in this
case, and I accept that the reasoning in the majority opinion reflects what a majority of my colleagues has agreed
on.’”).
11
This report also does not attempt to identify the various rulings made by circuit panels on procedural issues during
the course of litigation (e.g., granting a litigator’s request for an extension of time to file a brief), which are not
captured by searches of Lexis or Westlaw databases.
12
A forthcoming CRS report analyzing Judge Gorsuch’s jurisprudence will provide a listing of Tenth Circuit decisions
subsequently reviewed by the Supreme Court in which Judge Gorsuch had been a member of the reviewing circuit
court panel.
13
Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016); Browder v. City of Albuquerque, 787 F.3d 1076 (10th
Cir. 2015).
14
James F. Spriggs II & David R. Stras, Explaining Plurality Decisions, 99 GEO. L.J. 515, 519-520 (2011) (“[A] simple
concurring opinion indicates that the [judge] writing separately agrees with the legal rule and its application in the
majority opinion but that there is some aspect of the case worthy of further discussion.... [A]n opinion concurring in the
(continued...)
Congressional Research Service
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Majority, Concurring, and Dissenting Opinions by Judge Neil M. Gorsuch
Cases are listed in reverse chronological order. In each case, the key ruling or rulings of the case
are succinctly described. Judicial opinions discussed in this report are categorized using the
following 18 legal subject areas:
Administrative Law
Bankruptcy
Civil Rights
Civil Liability (e.g., tort, preemption, arbitration, class actions, statutory right to
sue)
Contracts
Criminal Law and Procedure
Education
Environmental Law
Federal Courts (e.g., standing to sue, civil procedure)
First Amendment (including both constitutional protections and closely related
statutory protections contained in the Religious Freedom Restoration Act)
Habeas
Immigration
Indian Law
Insurance
Intellectual Property
Labor and Employment
Public Benefits (e.g., eligibility for Social Security disability)
Tax
Where appropriate, multiple subject areas are identified as relevant to a particular case. However,
the list above is not an exhaustive accounting of all possible legal subjects addressed in judicial
writings of Judge Gorsuch. Moreover, the fact that a case is categorized under a particular legal
subject area does not necessarily mean that some observers might not deem other categories to be
pertinent. For example, the “Habeas” category is used for cases that involve review (or
consideration of whether to review) petitions for a writ of habeas corpus from state or federal
prisoners. However, some observers might also argue that such cases could properly fall under the
“Criminal Law and Procedure” category (because habeas petitions are typically brought by
criminal defendants challenging their convictions or subsequent incarceration) or, alternatively,
the “Federal Courts” category (because habeas proceedings are civil in nature and often turn on
(...continued)
judgment is the functional equivalent of a dissent from the [controlling opinion’s] reasoning even if it represents
agreement with the result reached in the case.”). The nature of a concurring opinion, including the legal significance
that should be given to whether the opinion labels itself a “concurrence” or a “concurrence in the judgment,” is a matter
of scholarly discussion and occasional judicial importance, particularly in cases where there is a question as to whether
a majority of the court shared the same legal rationale to support the court’s ruling. See generally Sonja R. West,
Concurring in Part & Concurring in the Confusion, 104 MICH. L. REV. 1951, 1955-1956 and 1958 (2006) (arguing that
“the phrase following the comma” after the authoring judge’s name—e.g., “concurring” or “concurring in the
judgment”—has been “used in an inconsistent, unclear, and often contradictory manner” that has led to confusion
among commentators and courts regarding the degree to which the judge endorses the analysis of the majority opinion).
Congressional Research Service
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Majority, Concurring, and Dissenting Opinions by Judge Neil M. Gorsuch
questions of when or whether courts may review a habeas claim). Accordingly, while the
categorizations employed in this report are intended to provide a helpful guide to readers in
locating decisions dealing with major legal topics, the categories do not necessarily reflect the full
range of legal issues a judicial opinion may involve.
While this report identifies and briefly describes those opinions authored by Judge Gorsuch
during his tenure on the federal bench, it does not analyze the implications of his judicial opinions
or suggest how he might approach legal issues if appointed to the Supreme Court. Those matters
will be discussed in a forthcoming CRS report.
Methodology
The cases included in this report were compiled by searching all federal cases in the
LexisAdvance legal database for writtenby(Gorsuch),15 concurby(Gorsuch)16 and
dissentby(Gorsuch).17 Because editors of different legal databases may vary in how they identify
cases,18 a subsequent search was conducted of all federal cases in the Westlaw legal database
using wb(Gorsuch) as a cross-check to those results.19 These results were last compared on
February 22, 2017. Ultimately, this methodology identified approximately 854 instances in which
Judge Gorsuch is credited as an author of a judicial opinion in cases either before the Tenth
Circuit (approximately 852 cases) or the Ninth Circuit (two cases).20 It should be noted that in a
handful of cases, an opinion authored by Judge Gorsuch was subsequently republished with
minimal, and sometimes only stylistic, changes. Depending upon the nature of these
modifications, duplicative decisions are either listed in separate table rows (i.e., when there is a
substantive change to the original opinion21) or, alternatively, a single table row is used to identify
and discuss both decisions (e.g., when the difference between the two opinions consists of
stylistic changes necessary for official publication22).
15
The “WrittenBy” segment in LexisAdvance restricts searches to the names of the judge(s) writing an opinion, as
identified by Lexis editors.
16
The “ConcurBy” segment restricts searches to the names of the judge(s) writing a concurring opinion, including
opinions concurring in part and opinions concurring in part and dissenting in part, as identified by Lexis editors.
17
The “DissentBy” segment restricts searches to the names of the judge(s) writing a dissenting opinion, an opinion
dissenting in part, or an opinion concurring in part and dissenting in part, as identified by Lexis editors.
18
See supra note 3 (observing differences in search results for the number of panel decisions in which Judge Gorsuch
participated, depending upon whether the Westlaw or LexisAdvance database was used).
19
The “WB” or “Writtenby” segment in Westlaw restricts searches to the names of the judge(s) writing an opinion, as
identified by Westlaw editors.
20
Not every case identified using this methodology actually proved relevant. For example, a February 22, 2017, search
of LexisAdvance using the methodology described above identified Judge Gorsuch as the author of the court opinion in
Jaramillo v. Vallejos, 220 F. App’x. 838 (2007), though the opinion credits another judge on the panel.
21
See, e.g., United States v. Henry, No. 15-6181, 2017 U.S. App. LEXIS 2020 (Feb. 3, 2017) (republishing opinion
originally published in 839 F.3d 1271 (10th Cir. 2016), but adding a substantive footnote).
22
See, e.g., Smith v. McCord, 707 F.3d 1161 (10th Cir. 2013) (modified, by order published by No. 12-2041, 2013 U.S.
App. LEXIS 3549 (10th Cir. Jan. 29, 2013), to make “stylistic changes” necessary for official publication).
Congressional Research Service
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Table 1. Opinions Authored by Judge Gorsuch for a Unanimous Panel
Case Name
Citation
Year
Role
Subject
Holding
United States v. Henry
No. 156181, 2017
U.S. App.
LEXIS 2020
2017
Authored
majority
Criminal Law &
Procedure
Remanded: In revoking defendant’s supervised release and imposing a
new sentence after finding that the defendant, after his release from
federal prison, had engaged in two assaults and lied to his probation
officer, the district court did not apply the standards required under
Tenth Circuit precedent concerning the admission of certain hearsay
evidence. The district court inappropriately relied upon hearsay in
finding the defendant committed one of the assaults. Remand was
therefore required for a new sentencing analysis by the lower court.
This opinion is a reissuance of an earlier opinion in 839 F.3d 1271
(10th Cir. 2016), discussed below, with an additional footnote.
United States v.
Marshall
No. 167068, 2017
U.S. App.
LEXIS 401
2017
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right because petitioner
was not sentenced under the “residual clause” of the Armed Career
Criminal Act that was invalidated as unconstitutionally vague by the
Supreme Court in Johnson v. United States.
Bigham v. Allbaugh
No. 167068, 2017
U.S. App.
LEXIS 389
2017
Authored
majority
Habeas
Certificate of appealability denied: Petition for a writ of habeas corpus
was untimely and did not qualify for equitable tolling.
Hammond v.
Stamps.com, Inc.
844 F.3d
909
2016
Authored
majority
Administrative
Law
Order vacated and remanded: A class action suit against a postage
subscription service sufficiently alleged an amount in controversy to
support federal jurisdiction under the Class Action Fairness Act
(CAFA); the legally possible minimum damages based on each
potential class member exceeded the jurisdictional minimum of the
CAFA regardless of whether the class action would likely recover
damages.
United States v. Rivera
No. 151228, 2016
U.S. App.
Lexis 21915
2016
Authored
majority
Criminal Law &
Procedure;
Federal Courts
Affirmed: There was no plain error in allowing prosecution to ask a
question on cross-examination implying the existence of certain facts
that were not supported in the record.
CRS-5
Case Name
Citation
Year
Role
Subject
Holding
Smith v. Farris
No. 165115, 2016
U.S. App.
LEXIS
21623
2016
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right during his criminal
proceedings.
United States v.
Mendoza-Haro
Nos. 151276 & 161023, 2016
U.S. App.
LEXIS
21611
2016
Authored
majority
Criminal Law &
Procedure
Affirmed: District court acted within its discretion and committed no
error in denying a motion for reconsideration by defendant for
sentence reduction based on her post-sentencing conduct.
White v. Deere & Co.
No. 161098, 2016
U.S. App.
LEXIS
21287
2016
Authored
majority
Federal Courts
Affirmed: In a product liability suit, district court did not err in its jury
instructions, required under Colorado law, concerning a
presumption that the product was free from defect.
Hopper v. Fenton
No. 165006, 2016
U.S. App.
LEXIS
21292
2016
Authored
majority
Criminal Law &
Procedure; Civil
Rights
Affirmed: No constitutional violation occurred under 42 U.S.C. §1983
because the failure to include certain facts in the affidavit did not
vitiate the probable cause that supported the defendant’s arrest.
United States v.
Tarango
No. 162015, 2016
U.S. App.
LEXIS
21038
2016
Authored
majority
Habeas; Criminal
Law &
Procedure
Affirmed: A writ of coram nobis to invalidate a guilty plea entered 17
years prior to the instant petition was not available because the
defendant failed to exercise due diligence in raising his ineffective
counsel claim in prior proceedings.
Lancaster v.
Sprint/United Mgmt.
Co.
No. 166056, 2016
U.S. App.
LEXIS
21037
2016
Authored
majority
Labor &
Employment
Affirmed: Plaintiff-employee failed to meet her evidentiary burden to
survive defendant’s motion for summary judgment on employment
discrimination and retaliation claims under the Americans with
Disabilities Act.
CRS-6
Case Name
Citation
Year
Role
Subject
Holding
Garman v.
Garaychochea
No. 164096, 2016
U.S. App.
LEXIS
20920
2016
Authored
majority
Criminal Law &
Procedure; Civil
Rights
Affirmed: Police officers did not deny plaintiff his due process rights
during his pretrial detention; evidence clearly demonstrated that
contrary to plaintiff’s claim, the officers did not prevent him from
changing his soiled clothes.
Morris v. Dowling
No. 165131, 2016
WL
6871874
2016
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel.
Moore v. McCollum
No. 166167, 2016
U.S. App.
LEXIS
19307
2016
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel, as
appellate counsel did not err in omitting a due process claim.
United States v. Henry
839 F.3d
1271
2016
Authored
majority
Criminal Law &
Procedure
Remanded: In revoking defendant’s supervised release and imposing a
new sentence after finding that the defendant, following his release
from federal prison, had engaged in two assaults and lied to his
probation officer, the district court did not apply the standards
required under Tenth Circuit precedent concerning the admission of
certain hearsay evidence. The court inappropriately relied upon
hearsay in finding that the defendant committed one of the assaults.
Remand was therefore required for a new sentencing analysis by the
lower court.
This opinion was subsequently reissued with an additional footnote
as No. 15-6181, 2017 U.S. App. LEXIS 2020 (Feb. 3, 2017) discussed
above.
Alvarez v. Grosso
No. 151398, 2016
U.S. App.
LEXIS
18656
2016
Authored
majority
First
Amendment;
Federal Courts
Affirmed: An order barring entry onto a military base was upheld
because the appellant, who did not question the military
commander’s authority to bar civilians from the base, failed to
preserve a First Amendment claim that any portion of the base was
used as a public forum, and he did not suggest that the announced
grounds for the bar were arbitrary or discriminatory.
CRS-7
Case Name
Citation
Year
Role
Subject
Holding
Hodge v. Utah
No. 164043, 2016
U.S. App.
LEXIS
18567
2016
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right during his criminal
proceedings.
United States v.
Espinoza
No. 162176, 2016
U.S. App.
LEXIS
18521
2016
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel.
Parker v. Dowling
No. 166219, 2016
U.S. App.
LEXIS
17900
2016
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right because, under
Oklahoma law, the power to commute a sentence is in the sole
discretion of the governor and not subject to a due process
challenge.
United States v.
Tolliver
No. 165057, 2016
U.S. App.
LEXIS
16950
2016
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel. The
trial counsel was not ineffective for failing to challenge the
constitutional sufficiency of petitioner’s indictment, and counsel’s
sentencing calculation error did not result in prejudicial error.
UTE Indian Tribe of
the Uintah & Ouray
Reservation v. Myton
835 F.3d
1255
2016
Authored
majority
Federal Courts;
Indian Law
Reversed and reassigned: District court erred when it dismissed the
Ute Indian Tribe’s suit alleging that a town was improperly
prosecuting tribal members in state court for offenses on land that
had been restored to tribal jurisdiction. The tribe stated a plausible
claim for relief premised on prior judicial decisions that determined
the boundaries of tribal jurisdiction. Reassignment to a different judge
was also appropriate given judge’s failure to give effect to court’s
earlier mandate in the litigation.
This decision is a reissuance, with a sua sponte amendment of a
single sentence, of UTE Indian Tribe of the Uintah & Ouray
Reservation v. Myton, 832 F.3d 1220 (10th Cir. 2016).
CRS-8
Case Name
Citation
Year
Role
Subject
Holding
Watson v. Missouri
No. 163095, 2016
U.S. App.
LEXIS
15690
2016
Authored
majority
Federal Courts
Affirmed: Eleventh Amendment and the doctrine of abstention set
forth by the Supreme Court in Younger v. Harris barred claims that
defendants violated plaintiff’s constitutional and state law rights by
ordering him to provide child support and health insurance.
Winkel v. Heimgartner
No. 163177, 2016
U.S. App.
LEXIS
15351
2016
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel because
his attorney did not act contrary to defendant’s interests by
requesting competency proceedings, and the finding of incompetence
to stand trial did not violate his right to a speedy trial.
Glaser v. Raemisch
No. 161228, 2016
U.S. App.
LEXIS
15211
2016
Authored
majority
Habeas; Civil
Rights
Affirmed, certificate of appealability granted: District court’s order
dismissing the claim that the defendant was unconstitutionally denied
good time credits was affirmed because a prisoner cannot use 42
U.S.C. §1983 to challenge the validity of his sentence. The court also
properly dismissed his habeas petition because his petition for
certiorari was still pending before the Colorado Supreme Court.
However, a certificate of appealability was granted because his state
remedies would be exhausted once the state court denied his
petition for certiorari.
United States v.
Gronski
No. 161228, 2016
U.S. App.
LEXIS
15005
2016
Authored
majority
Criminal Law &
Procedure
Affirmed: Defendant was precluded from requesting a reduction in his
sentence as a result of a retroactive change in U.S. Sentencing
Guidelines, because he made a request for reduction the prior year
but did not appeal the denial; further, his sentence, which arose from
a plea agreement, was not “based on” the guideline range.
United States v.
Ackerman
831 F.3d
1292
2016
Authored
majority
Criminal Law &
Procedure
Reversed and remanded: The National Center for Missing and
Exploited Children (NCMEC) is a government actor for Fourth
Amendment purposes, so its review of the defendant’s emails
qualified as a Fourth Amendment search for which a warrant was
required; remand was necessary for the district court to determine
whether the warrantless search was nonetheless reasonable.
* Judge Hartz did not join the portion of the panel opinion that
discussed the potential application of the Supreme Court’s ruling in
United States v. Jones, but did not author a separate opinion.
CRS-9
Case Name
Citation
Year
Role
Subject
Holding
United States v. Reed
654 F.
App’x 935
2016
Authored
majority
Habeas; Criminal
Law &
Procedure
Affirmed: Appeal of denial of motion to amend defendant’s forfeiture
motion was denied for failure to raise the claim properly, and any
challenge to defendant’s conviction could not be appealed, but
required a 28 U.S.C. §2255 habeas corpus order.
Ellis v. Lemons
No. 164031, 2016
U.S. App.
LEXIS
12536
2016
Authored
majority
Federal Courts
Affirmed: District court’s decision to abstain from proceeding on the
merits pending resolution of a closely related and ongoing state court
proceeding was appropriate, so long as the pending state court
proceeding existed before the federal district court had begun its
own proceedings on the merits.
United States v.
Johnson
No. 157070, 2016
U.S. App.
LEXIS
12178
2016
Authored
majority
Criminal Law &
Procedure
Appeal dismissed: Criminal appeal was dismissed pursuant to Anders v.
California because there were no nonfrivolous arguments to be made
on appeal.
United States v.
Mitchell
653 F.
App’x 651
2016
Authored
majority
Criminal Law &
Procedure
Affirmed: Evidence obtained from a GPS device installed without a
warrant did not need to be excluded under the Fourth Amendment.
The officer acted reasonably in relying on existing precedent that
authorized him to install and monitor a GPS device.
Lawton v. Patton
Nos. 154022 & 154084, 2016
U.S. App.
LEXIS
11049
2016
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right during his criminal
proceedings.
United States v.
Marshall
652 F.
App’x 719
2016
Authored
majority
Criminal Law &
Procedure
Affirmed: A court-imposed prohibition upon defendant affiliating with
known gangs and the requirement that he live in a home with a
surveillance system were properly imposed conditions of supervised
release. The conditions were reasonably related to the need to
protect the public and were specific to the defendant’s character.
El Encanto, Inc. v.
Hatch Chile Co.
825 F.3d
1161
2016
Authored
majority
Federal Courts;
Intellectual
Property
Reversed: District court erred in granting respondent’s motion to
quash a subpoena in a trademark suit because requesting a deposition
was not a necessary precondition to a document demand.
Galbreath v. Patton
654 F.
App’x 378
2016
Authored
majority
Habeas
Certificate of appealability denied: Petition for a writ of habeas corpus
was untimely and did not qualify for equitable tolling.
CRS-10
Case Name
Citation
Year
Role
Subject
Holding
Sellers v. Cline
651 F.
App’x 804
2016
Authored
majority
Civil Liability
Affirmed: Damage claims against state correction officers acting in
their official capacity, which arose from an assault on an inmate by
two other inmates, were barred by Eleventh Amendment. The
correction officers were entitled to qualified immunity because there
was no evidence that their actions created substantial risk of harm to
the prisoner or that they were aware of and indifferent to that risk.
United Planners Fin.
Servs. of Am., L.P. v.
Sac & Fox Nation
654 F.
App’x 376
2016
Authored
majority
Federal Courts;
Indian Law
Affirmed: Appellant failed to exhaust its tribal court remedies and so
could not invoke federal jurisdiction.
Tong v. New Mexico
651 F.
App’x 798
2016
Authored
majority
Civil Rights
Affirmed: Federal officer defendants were entitled to remove the
plaintiff’s case to federal court because the claims arose from the
exercise of their official duties.
Chavez v. Colvin
654 F.
App’x 374
2016
Authored
majority
Public Benefits
Affirmed: Administrative law judge did not fail to provide adequate
reasons for denying Social Security disability benefits and
Supplemental Security Income payments.
Requena v. Roberts
650 F.
App’x 939
2016
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right, as a disciplinary
decision imposed by prison officials was supported by sufficient
evidence of battery and attempted assault by the petitioner on a
prison guard.
Caring Hearts Pers.
Home Servs. v.
Burwell
824 F.3d
968
2016
Authored
majority
Administrative
Law; Public
Benefits
Vacated and remanded: Centers for Medicare & Medicaid Services
(CMS) inappropriately compelled a provider to repay government for
services rendered. CMS failed to apply the regulations in force at the
time the provider rendered the services, and the provider reasonably
believed its services were reasonable, necessary, and consistent with
the rules in effect at the time.
United States v.
Gomez-Olivas
650 F.
App’x 631
2016
Authored
majority
Criminal Law &
Procedure
Affirmed: The prisoner was precluded and ineligible to modify his
sentence under 18 U.S.C. §3582(c)(2) because he failed to raise the
issue on appeal and his sentence was based on a plea agreement and
not the U.S. Sentencing Guidelines.
CRS-11
Case Name
Citation
Year
Role
Subject
Holding
Craine v. NSF
647 F.
App’x 871
2016
Authored
majority
Federal Courts;
Labor &
Employment
Remanded: National Science Foundation’s order, which denied
petitioner’s claim that a university’s termination of his employment
constituted illegal retaliation for accusing colleagues of academic
misconduct, lacked sufficient analysis or reasoning for appellate
review.
Freres v. Xyngular
647 F.
App’x 861
2016
Authored
majority
Federal Courts;
Civil Liability
Affirmed: Under the invited error doctrine, the district court
correctly ruled that the plaintiff cannot challenge a putative error
when she had failed to object to proposed jury instructions
permitting fees as consequential damages and agreed that the jury
should be allowed to determine attorneys’ fees.
United States v.
Wallace
647 F.
App’x 842
2016
Authored
majority
Criminal Law &
Procedure
Affirmed: A typographical error in the indictment did not deny
defendant fair notice of the charges or prevent the government from
prosecuting the specific crime on which the grand jury indicted.
United States v.
Arthurs
647 F.
App’x 846
2016
Authored
majority
Criminal Law &
Procedure
Affirmed, remanded for sentencing: District court did not err or abuse
its discretion in instructing the jury that circumstantial evidence could
be considered and that voluntary intoxication was not a legal defense
against possession of a firearm by a felon. The district court also
permissibly issued a two-level enhancement in sentencing based on
the evidence presented at trial.
Harvey v. Segura
646 F.
App’x 650
2016
Authored
majority
Criminal Law &
Procedure
Affirmed: District court correctly determined that the prisoner failed
to allege any facts suggesting that the strip search was conducted in
an abusive fashion or with excessive force, and, accordingly, failed to
plead a claim under the Eighth Amendment. Further, the claims were
barred by sovereign immunity under the Eleventh Amendment for
prison officials acting in their official capacity.
Broughton v. Merit
Sys. Prot. Bd.
639 F.
App’x 574
2016
Authored
majority
Federal Courts
Affirmed: Plaintiff failed to satisfy Fed. R. Civ. P. 8 because she did not
adequately assert the basis for the court’s jurisdiction, provide a
short and plain statement of her claims, identify which claims were
asserted against which defendants, or allege specific facts as to how
any specific federal law was violated.
United States v.
Lancaster
646 F.
App’x 589
2016
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right because he failed to
raise at trial claims of ineffective counsel.
CRS-12
Case Name
Citation
Year
Role
Subject
Holding
United States v. Taylor
639 F.
App’x 571
2016
Authored
majority
Habeas
Certificate of appealability denied: Petition for a writ of habeas corpus
was time-barred.
Jordan v. Allbaugh
639 F.
App’x 569
2016
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right because claims not
raised in district court are waived.
Johnson v. Okla. Dep’t
of Transp.
645 F.
App’x 765
2016
Authored
majority
Civil Rights;
Labor &
Employment
Affirmed: Former employee failed to establish a prima facie case of
racial discrimination, as the evidence provided a strong inference that
the employer’s explanation that plaintiff was dismissed for poor
performance was not pretexual. The state officials acting in official
capacity were protected from claims arising under 42 U.S.C. §1983.
Walton v. Powell
821 F.3d
1204
2016
Authored
majority
Federal Courts;
First
Amendment;
Civil Rights
Affirmed: A newly elected public official’s qualified immunity claim was
properly denied on summary judgment because a former public
employee presented sufficient evidence to support her political
association retaliation claim; the court on interlocutory appeal could
properly assess the facts de novo and not accept as true the facts the
district court determined a reasonable jury could find at trial.
Kontgis v. Salt Lake
City Corp.
645 F.
App’x 750
2016
Authored
majority
Federal Courts
Affirmed: City ordinance limiting the standard of review of the city’s
employee appeals board did not expressly conflict with the state
statutory law that provides a discharged employee a right to appeal,
and the employee’s due process rights were not violated as a result
of the discharge.
Garrett v. Branson
Commerce Park
Cmty. Improvement
Dist.
645 F.
App’x 710
2016
Authored
majority
Federal Courts;
Contracts
Affirmed: Plaintiffs’ claim that their conditional guarantees were based
on unlawfully discriminatory contracts due to their marital status was
properly dismissed because the claim was time-barred under the
Equal Credit Opportunity Act.
Gilyard v. Chrisman
644 F.
App’x 863
2016
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right, as his complaints
were untimely and no basis existed for statutory or equitable tolling.
United States v. Reed
644 F.
App’x 847
2016
Authored
majority
Federal Courts
Affirmed: District court lacked jurisdiction to revise a mandate from
the court of appeals that denied the motion to supplement the
appellate record, and the reviewing appellate panel similarly lacked
the power to revise the ruling of a previous panel.
CRS-13
Case Name
Citation
Year
Role
Subject
Holding
Estate of Bleck v. City
of Alamosa
643 F.
App’x 754
2016
Authored
majority
Civil Liability
Affirmed: Plaintiff failed to establish municipal liability for a claim that
police officers used excessive force when entering a hotel room with
their guns drawn. The officers drew their guns in reasonable
response to a counselor’s report that his patient was holed up in the
room, intoxicated, suicidal, and possibly armed. Further, the court
properly denied municipal liability for a gunshot wound that resulted
from the officer’s failure to reholster this gun before tackling the
plaintiff, as the accident was not the result of faulty training.
Vreeland v. Zupan
644 F.
App’x 812
2016
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right during his criminal
proceedings when the court denied his bail.
Du Merac v. Colo. Sch.
of Mines
643 F.
App’x 709
2016
Authored
majority
Labor &
Employment;
Civil Rights
Affirmed: Petitioner had not shown a prima facie case of
discrimination by the school for suspending him from work after a
meritorious sexual harassment claim was brought against him, and
the petitioner also had not shown that the school’s proffered reasons
for the suspension were pretextual.
Gordon v. Farris
644 F.
App’x 804
2016
Authored
majority
Habeas
Affirmed: The petitioner-prisoner failed to exhaust state
administrative remedies and establish good cause for his procedural
defaults in state court; his petition for federal habeas relief
challenging a state court petition was untimely.
Robinson v. Estrada
637 F.
App’x 531
2016
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right because he
repeatedly disregarded court deadlines without a colorable excuse.
Gilkey v. Marcantel
637 F.
App’x 529
2016
Authored
majority
Federal Courts;
Criminal Law &
Procedure
Affirmed: Claims were barred by the doctrine of res judicata because
the prisoner admitted that both suits involved the same alleged
“denial of classification” of confinement after segregation ended, and
they each were premised on the same alleged violation of a prison
policy providing for classification review within five days.
United States v. Stout
637 F.
App’x 528
2016
Authored
majority
Criminal Law &
Procedure
Affirmed: District court did not commit plain error when it calculated
the U.S. Sentencing Guidelines’ range of 5-11 months and properly
considered the sentencing factors, applied those factors in imposing
its sentence, and provided specific reasons supported by
uncontroverted evidence for issuing a sentence above the Guidelines’
range.
CRS-14
Case Name
Citation
Year
Role
Subject
Holding
United States v.
Hinson
637 F.
App’x 526
2016
Authored
majority
Criminal Law &
Procedure
Affirmed: District court correctly concluded that no relief is available
to reduce the sentence because the binding U.S. Sentencing
Guidelines prevented the court from reducing a defendant’s sentence
to a term below the amended Guidelines’ range.
Lopez v. Roark
637 F.
App’x 520
2016
Authored
majority
Criminal Law &
Procedure
Affirmed: Prisoner’s Eighth Amendment constitutional rights were not
violated by housing him with the general prison population, as there
was no evidence that the prison officials were deliberately indifferent
to his safety. Further, the First Amendment claim that the defendants
retaliated against him failed because the prison officials afforded
considerable process before he was found guilty of a drug infraction.
Fry v. Am. Home
Assur. Co.
636 F.
App’x 764
2016
Authored
majority
Contracts;
Insurance
Affirmed: Summary judgment in favor of an insurance company was
affirmed because the insurance policy did not cover death resulting
from the employer’s alleged knowing misconduct; the policy covered
only bodily injury by accident.
United States v.
Hernandez-Martinez
637 F.
App’x 512
2016
Authored
majority
Criminal Law &
Procedure
Appeal dismissed: Criminal appeal was dismissed pursuant to Anders v.
California because there were no nonfrivolous arguments to be made
on appeal.
United States v. Hai
Gan
641 F.
App’x 833
2016
Authored
majority
Criminal Law &
Procedure
Affirmed: Government presented sufficient evidence at trial to convict
the defendant of transferring false identification documents or aiding
and abetting their transfer.
Aslan v. Colvin
637 F.
App’x 509
2016
Authored
majority
Public Benefits
Affirmed: Denial of Social Security disability benefits was affirmed
because the claimant failed to point to any medical records
confirming that he suffered from a presumptive medical condition;
the residual functional capacity determination was supported by
substantial evidence; and the administrative law judge did not err in
relying on the Medical-Vocational Guidelines.
Wahpekeche v. Colvin
640 F.
App’x 781
2016
Authored
majority
Public Benefits
Affirmed: Substantial evidence, including inconsistencies between the
claimant’s allegations and the medical records, supported the
administrative law judge’s adverse credibility finding in a Social
Security disability benefits case; the claimant’s residual functional
capacity assessment adequately specified the frequency of her need
to alternate sitting and standing.
United States v.
Brooks
634 F.
App’x 669
2016
Authored
majority
Habeas
Certificate of appealability denied: Petition for a writ of habeas corpus
was untimely and did not qualify for equitable tolling.
CRS-15
Case Name
Citation
Year
Role
Subject
Holding
United States v.
Anderson
634 F.
App’x 666
2016
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make substantial
showing that he was denied constitutionally effective counsel.
Gambrill v. Unified
Gov’t of Wyandotte
Cty./Kan. City
636 F.
App’x 981
2016
Authored
majority
Federal Courts
Reversed and dismissed: After supplemental briefing, the court
determined that recent precedent controlled, and it reversed the
district court’s denial of qualified immunity to the individual
defendants and dismissed the Unified Government’s appeals for lack
of jurisdiction.
United States v. Yazzie
633 F.
App’x 703
2016
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make substantial
showing that he was denied constitutionally effective counsel.
Jordanoff v. Lester
628 F.
App’x 624
2016
Authored
majority
Federal Courts
Affirmed: District court committed no error in dismissing claims
against the sheriff as outside the statute of limitations and in
dismissing claims against the prosecutor on the basis of immunity.
United States v. RubioAyala
628 F.
App’x 622
2016
Authored
majority
Criminal Law &
Procedure
Affirmed: District court properly recalculated the defendant’s
sentencing range after the sentencing commission amended the U.S.
Sentencing Guidelines applicable to his crime.
Espinoza v. Ark. Valley
Adventures, LLC
809 F.3d
1150
2016
Authored
majority
Contracts; Civil
Liability
Affirmed: Summary judgment in favor of a rafting company in a
negligence case was affirmed because the release signed by the
deceased did not violate Colorado’s public policy that allows private
parties to assume certain risks associated with recreational activity.
Feinberg v. Comm’r
808 F.3d
813
2015
Authored
majority
Federal Courts;
Civil Rights; Tax
Petition denied: In an ongoing tax court case involving marijuana
business deductions, a writ of mandamus was not warranted because
the petitioners, who alleged that an order to produce the requested
discovery violated the Fifth Amendment against self-incrimination,
were not facing irreparable injury without an immediate remedy and
they could appeal the final tax court judgment.
Ramos-Hernandez v.
Lynch
624 F.
App’x 677
2015
Authored
majority
Immigration
Petition denied: Immigration judge’s factual finding about the nature of
the alien petitioner’s former employment with a company associated
with the Guatemalan government, which was relevant to the
credibility of the alien’s claim that he suffered past persecution in that
country, was legally sustainable because it was based on the
substantial record evidence and not premised on a factual mistake.
Robinette v. Fender
624 F.
App’x 664
2015
Authored
majority
Federal Courts
Affirmed: Arguments on appeal were not inadequately presented, and
independent scrutiny of the record affirmed the district court’s
disposition.
CRS-16
Case Name
Citation
Year
Role
Subject
Holding
Fogg v. Colvin
622 F.
App’x 767
2015
Authored
majority
Public Benefits;
Administrative
Law
Affirmed: The administrative law judge did not err in denying
petitioner’s request for disability benefits and supplemental security
income payments; the petitioner’s admission that he is capable of
performing heavy work negated a presumption that older claimants
with limited education and work experience and severe impairments
should be found disabled.
McClaflin v. Burd
622 F.
App’x 769
2015
Authored
majority
Federal Courts
Affirmed: Plaintiff failed to present any properly preserved arguments
on appeal.
Jemaneh v. Univ. of
Wyoming
622 F.
App’x 765
2015
Authored
majority
Federal Courts
Affirmed: Even assuming (without granting) the district court erred by
permitting successive Fed. R. Civ. P. 12(b) motions to dismiss, the
pleadings failed to state a claim.
United States v.
Falcon-Sanchez
622 F.
App’x 766
2015
Authored
majority
Criminal Law &
Procedure
Affirmed: District court properly recognized that it lacked authority
to revise the defendant’s sentence, which was based on his plea
agreement and not on the U.S. Sentencing Guidelines’ range that had
been lowered by the Sentencing Commission.
United States v.
Makkar
810 F.3d
1139
2015
Authored
majority
Criminal Law &
Procedure;
Federal Courts
Vacated and remanded: Despite defendant’s failure to object, the jury
instructions given at trial resulted in plain error, because the
government conceded that it did not prove the requisite mens rea for
a violation of the Controlled Substances Act or the Analogue Act,
and the district court abused its discretion by excluding testimony
that was relevant to defendants’ mens rea.
United States v. Davis
622 F.
App’x 758
2015
Authored
majority
Criminal Law &
Procedure
Remanded: Government conceded that the condition prohibiting
Internet use, which the district court had imposed on the criminal
defendant as a condition of his supervised released, was in error
based on judicial precedent.
Duran v. Marathon
Asset Mgmt., LP
621 F.
App’x 553
2015
Authored
majority
Federal Courts;
Civil Liability;
Contracts
Affirmed: District court appropriately exercised diversity jurisdiction
because the amount in controversy exceeded the statutory
requirement when punitive damages were considered, but the
complaint was properly dismissed because a forum selection clause in
an agreement between the parties specified that the venue for
disputes would be New York state court.
CRS-17
Case Name
Citation
Year
Role
Subject
Holding
United States v.
Avalos-Chavez
621 F.
App’x 552
2015
Authored
majority
Criminal Law &
Procedure
Affirmed: Defendant’s sentencing could not be revised, because the
district court anticipated the amended U.S. Sentencing Guidelines’
range at his original sentencing hearing, and the defendant received a
sentence well below the range.
United States v.
Camargo-Chavez
630 F.
App’x 835
2015
Authored
majority
Criminal Law &
Procedure
Affirmed: The denial of appellant’s motion to suppress was affirmed
because officers had probable cause to open the sealed case of beer
based on evidence discovered from the consensual search of the rest
of the vehicle.
De Niz Robles v.
Lynch
803 F.3d
1165
2015
Authored
majority
Immigration;
Administrative
Law
Petition for review granted and case remanded for further administrative
proceedings: A presumption of prospectivity that applies whenever an
agency exercises delegated legislative policymaking authority, along
with due process and equal protection concerns, prevented the
retroactive application of a decision by Board of Immigration Appeals
(BIA) concerning the interplay between two federal immigration
statutes, when the effect of that decision would be to deny the
availability of relief to a previously eligible alien who applied for relief
prior to the decision’s issuance.
LTF Real Estate Co. v.
Expert S. Tulsa, LLC
(In re Expert South
Tulsa, LLC)
619 F.
App’x 779
2015
Authored
majority
Bankruptcy;
Contracts
Affirmed: Funds placed in escrow pursuant to a contract prior to
debtor filing for bankruptcy were not part of the bankruptcy estate.
Chapman v. Lampert
616 F.
App’x 889
2015
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel.
Adams v. Colvin
616 F.
App’x 393
2015
Authored
majority
Public Benefits
Affirmed: In denying a claim for Social Security disability benefits, the
administrative law judge had sufficient evidence to support findings
regarding the claimant’s residual functional capacity to return to
work as an electronic scanner operator, and the claimant failed to
meet her burden to establish that she is unable to perform her past
relevant work.
Rader v. Comm’r
616 F.
App’x 391
2015
Authored
majority
Federal Courts
Affirmed: U.S. Tax Court committed no clear error when it held that
the defendant was liable for unpaid taxes and penalties.
CRS-18
Case Name
Citation
Year
Role
Subject
Holding
Muathe v. Fifth Third
Bank
627 F.
App’x 732
2015
Authored
majority
Federal Courts
Affirmed: District court did not abuse its discretion in determining
that the plaintiff’s complaint failed to provide the defendants with fair
notice of the claims against them and the relevant facts underlying
those claims because, among other things, the plaintiff failed to
connect alleged facts in any fairly discernible way to the legal claims.
Perez-Carrera v.
Stancil
616 F.
App’x 371
2015
Authored
majority
Criminal Law &
Procedure
Affirmed: Prisoner was not entitled to relief under 28 U.S.C. §2241
because he could not establish that 28 U.S.C. §2255’s remedy was
inadequate or ineffective to test the legality of his detention.
Barrera-Estrada v.
United States
616 F.
App’x 371
2015
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel when
he entered his guilty plea.
United States v. Spring
614 F.
App’x 386
2015
Authored
majority
Criminal Law &
Procedure
Affirmed: Petitioner was not entitled to a writ of audita querela to
reverse his federal sentence, as other remedies supplied the
exclusive means for petitioner to challenge his conviction and
sentence collaterally.
United States v. Handy
614 F.
App’x 379
2015
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel.
United States v.
McAlpine
613 F.
App’x 766
2015
Authored
majority
Criminal Law &
Procedure
Affirmed: There was no error in the district court’s decision not to
reduce the defendant’s sentence as a result of a change in the U.S.
Sentencing Guidelines when the defendant was already given a
sentence below the recommended guideline range.
Stauffer v. Blair
613 F.
App’x 760
2015
Authored
majority
Federal Courts
Affirmed: Court lacked subject matter jurisdiction to entertain federal
suits that amount to appeals of state-court judgments.
Patriot Mfg., LLC v.
Hartwig, Inc.
613 F.
App’x 753
2015
Authored
majority
Federal Courts
Affirmed: Appellant failed to argue that estoppel was unwarranted
when responding to the motion for summary judgment in district
court and forfeited his right to challenge the judgment.
United States v. Butler
611 F.
App’x 517
2015
Authored
majority
Criminal Law &
Procedure
Affirmed: Prisoner waived his challenge to the district court’s decision
to deny his request to revise his sentence because he failed, among
other things, to state his basis for challenging the court’s decision.
CRS-19
Case Name
Citation
Year
Role
Subject
Holding
Gen. Steel Domestic
Sales, LLC v. Chumley
627 F.
App’x 682
2015
Authored
majority
Intellectual
Property; Civil
Liability
Affirmed: District court did not err in ruling that General Steel was
entitled to relief under the Lanham Act after its competitor,
Armstrong, produced false advertising to boost its reputation and
give it a competitive edge. Nor did the court err in ordering the
defendant to disgorge profits made during that period, and placing
the burden on the defendant to show which profits weren’t
attributable to its Lanham Act violations.
Carlson v. Pryor
611 F.
App’x 514
2015
Authored
majority
Habeas
Certificate of appealability denied: Petition for a writ of habeas corpus
was untimely and did not qualify for equitable tolling.
Serna v. Commandant
608 F.
App’x 713
2015
Authored
majority
Criminal Law &
Procedure
Affirmed: District court correctly held that the prisoner had not
demonstrated a lawful cause excusing his failure to pursue his
present claims before the military’s appellate courts, a prerequisite to
seeking habeas relief in federal court.
United States v.
Mendez
618 F.
App’x 930
2015
Authored
majority
Criminal Law &
Procedure
Affirmed: The court lacked subject matter jurisdiction for ineffective
assistance of counsel claim given that the appellant failed to seek and
obtain a certificate of appealability. There was no error in the
conviction based on the supporting evidence and the jury
instructions, because the defendant’s counsel expressly stipulated to
the instruction in question or the instructions were based on judicial
precedent.
United States v.
Mackay
610 F.
App’x 797
2015
Authored
majority
Criminal Law &
Procedure
Affirmed: In a remanded case, the district court’s order vacating
defendant’s two convictions for distributing a controlled substance
that resulted in death was affirmed because, while the appellate
mandate allowed the district court to reconsider only defendant’s
sentence, not his convictions, the Supreme Court’s intervening
decision in Burrage v. United States modified the controlling legal
authority.
Energy & Env’t Legal
Inst. v. Epel
793 F.3d
1169
2015
Authored
majority
Environmental
Law
Affirmed: Colorado law that required electricity generators to ensure
that 20% of electricity sold to state consumers comes from
renewable sources did not violate the Dormant Commerce Clause;
the law did not involve a discriminatory price control statute, a
discriminatory act linking prices in Colorado to those paid out of
state, or other types of price discrimination against out-of-state
entities.
CRS-20
Case Name
Citation
Year
Role
Subject
Holding
Loveridge v. Hall (In re
Renewable Energy
Dev. Corp.)
792 F.3d
1274
2015
Authored
majority
Bankruptcy; Civil
Liability; Federal
Courts
Vacated and remanded: District court’s decision to send to an Article I
bankruptcy court a lawsuit that alleged that a bankruptcy trustee
breached professional duties was unconstitutional, as the parties
were entitled to have the case resolved by an Article III court. None
of the state law claims necessarily could have been resolved in the
bankruptcy claims allowance process, and the plaintiff did not consent
to suit in a non-Article III court.
Elnicki v. Kansas
609 F.
App’x 542
2015
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel.
United States v.
Jenkins
608 F.
App’x 710
2015
Authored
majority
Criminal Law &
Procedure
Appeal dismissed: Because the prisoner pled guilty to a federal drug
offense and expressly waived his right to appeal any sentence up to
the statutory maximum, he could not appeal a certain condition of
supervised release.
United States v.
Fishman
608 F.
App’x 711
2015
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right during his criminal
proceedings.
Mata v. Jackson Cty.
Third Judicial Dist.
Court
611 F.
App’x 513
2015
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right during his criminal
proceedings.
Ute Indian Tribe of the
Uintah & Ouray
Reservation v. Utah
790 F.3d
1000
2015
Authored
majority
Indian Law;
Criminal Law &
Procedure
Reversed: A tribe was entitled to temporarily enjoin state and county
officials from prosecuting tribal members for crimes allegedly
committed on Indian land. The tribe’s success on the merits was
likely based on previous judicial decisions that determined tribal land
boundaries; a threat to tribal sovereignty was irreparable harm; on
balance the harms to tribal self-government outweigh the state and
county’s interest in prosecuting tribal members on tribal land; and
the Anti-Injunction Act authorized enjoining a state court proceeding
to effectuate a previous federal judgment.
CCPS Transp., LLC v.
Sloan
611 F.
App’x 931
2015
Authored
majority
Federal Courts
Appeal dismissed: District court improperly issued a Fed. R. Civ. P.
54(b) certification for interlocutory appeal of a declaration of rights
under a contested easement, because Rule 54(b) permits certification
only for single claims in multiclaim cases. No other cause of action
remained in the case because the plaintiffs’ request for other
remedies arising from the same alleged violation are not considered
separate claims.
CRS-21
Case Name
Citation
Year
Role
Subject
Holding
Backcountry Hunters
& Anglers v. U.S.
Forest Serv.
612 F.
App’x 934
2015
Authored
majority
Environmental
Law; Federal
Courts
Dismissed: The petition for review was dismissed for lack of standing
because the advocacy organization seeking to reduce vehicle access
to a national park would not be redressed by a favorable decision.
Beers v. Maye
611 F.
App’x 933
2015
Authored
majority
Criminal Law &
Procedure
Affirmed: District court properly denied the prisoner’s request to
credit against his federal sentence the time he spent in Nebraska
state prisons because federal sentences presumptively run
consecutively to (not concurrently with) state prison terms.
United States v.
Gutierrez-Carranza
604 F.
App’x 750
2015
Authored
majority
Criminal Law &
Procedure
Affirmed: District court did not abuse its discretion when it imposed a
term of supervised release upon defendant, despite the likelihood
that defendant would be deported or extradited to Mexico after his
incarceration, because the record showed that he previously defied
one deportation order and that he possesses a violent criminal
history.
Kenney v. Oklahoma
601 F.
App’x 761
2015
Authored
majority
Federal Courts;
Labor &
Employment
Affirmed: The complaint failed to set forth factual allegations from
which the court could infer some plausible basis for relief.
Brown v. McCollum
600 F.
App’x 630
2015
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right during his criminal
proceedings.
Farris v. Frazier
599 F.
App’x 851
2015
Authored
majority
Civil Rights
Affirmed: Prisoner failed to exhaust administrative remedies for any of
his claims, as required by the Prison Litigation Reform Act of 1995,
through the Oklahoma Department of Corrections grievance
process.
United States v.
Rogers
599 F.
App’x 850
2015
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel.
Chavez v. Franco
609 F.
App’x 527
2015
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel.
Franco v. Bd. of Cty.
Comm’rs
609 F.
App’x 957
2015
Authored
majority
Civil Rights
Affirmed: Plaintiff’s false imprisonment claims against the Board of
County Commissioners and public employees were properly
dismissed on summary judgment because he failed to show they
intentionally confined him with knowledge that they lacked lawful
authority to do so.
CRS-22
Case Name
Citation
Year
Role
Subject
Holding
United States v.
Herrera
782 F.3d
571
2015
Authored
majority
Criminal Law &
Procedure
Reversed and remanded: District court erred in granting the motion to
suppress because its factual findings about misstatements in the
warrant application were erroneous, and the court did not assess
whether, without the alleged misstatements, probable cause
supported the warrant.
ACAP Fin., Inc. v. U.S.
SEC
783 F.3d
763
2015
Authored
majority
Administrative
Law; Civil
Liability
Petition for review denied: Fines levied by Financial Industry Regulatory
Authority (and sustained by the Securities and Exchange Commission
[SEC]) against a penny stock brokerage firm, as well as the firm’s
head trader and compliance manager, for violating federal securities
laws were not excessive for exceeding the commission the firm
earned on its unlawful stock sales, given that profit is only one factor
the SEC considers when imposing a sanction. Additionally, the
trader’s six-month suspension from the securities industry—allowed
for in egregious cases—was permissible because the SEC could
expand its definition of egregious in its review, and the sanction was
comparable to similar cases.
Alejandre-Gallegos v.
Holder
598 F.
App’x 604
2015
Authored
majority
Immigration;
Federal Courts
Petition for review dismissed: Petitioner’s counsel’s failure to comply
with several federal rules of appellate procedure warranted dismissal
of the petition to review the Board of Immigration Appeal’s decision
to deny cancellation of removal. Additionally, the court clerk was
directed to initiate disciplinary hearings against counsel.
Vigil v. Morgan
598 F.
App’x 594
2015
Authored
majority
Criminal Law &
Procedure
Affirmed: District court did not err when it dismissed a claim under
the Eighth Amendment for inadequate medical care because the
prison officials’ actions that allegedly delayed his access to treatment
for hemorrhoids did not exhibit “deliberate indifference” or result in
substantial harm.
David v. Sirius
Comput. Sols., Inc.
779 F.3d
1209
2015
Authored
majority
Civil Liability
Remanded: Plaintiff who was awarded damages relating to economic
losses or injuries for a negligent misrepresentation claim was entitled
to prejudgment interest because state statute permitted interest in
any action seeking compensation for personal injury without
consideration to nature of compensatory damages the jury awarded.
CRS-23
Case Name
Citation
Year
Role
Subject
Holding
Walters v. Colvin
604 F.
App’x 643
2015
Authored
majority
Public Benefits
Affirmed: Substantial evidence supported administrative law judge’s
adverse credibility determination for Social Security disability benefits
because, among other things, claimant did not seek treatment for his
neurological disorder until two years after diagnosis; claimant’s claims
of illness were not supported by medical evidence; and there was
evidence that he went camping, canoeing, and rock climbing despite
his claim of total disability.
United States v. Scott
594 F.
App’x 560
2015
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not present newly
discovered evidence suggesting his innocence or identify a new rule
of constitutional law retroactively applicable to his case to warrant a
second or successive collateral challenge to his sentence.
Pippin v. Elbert Cty.
604 F.
App’x 636
2015
Authored
majority
First
Amendment
Affirmed: District court’s entry of summary judgment in favor of
county commissioners was affirmed because the commissioners had
a reasonable basis for seeking the protective order and did not
infringe on the plaintiff’s First Amendment rights.
Calvert v. Denham
594 F.
App’x 545
2015
Authored
majority
Criminal Law &
Procedure
Affirmed: District court did not err in its calculations for the
prisoner’s good time credit to determine his release date.
Macias v. Holder
590 F.
App’x 829
2015
Authored
majority
Immigration
Affirmed: The Board of Immigration Appeals correctly denied as
untimely the petitioner’s motion to reopen removal proceedings to
adjust status or for deferred action, and equitable tolling was not
warranted because he had not shown that he was prevented from
filing in a timely fashion.
Tarpley v. Colvin
601 F.
App’x 641
2015
Authored
majority
Public Benefits
Affirmed: Claimant was properly denied Social Security disability
benefits because substantial evidence supported the administrative
law judge’s decision to reject the opinions of claimant’s treating
physicians, and the judge did not err in affording significant weight to
the opinion of the nontreating agency physician.
Banks v. Am. Baptist
Churches
594 F.
App’x 544
2015
Authored
majority
Federal Courts
Affirmed: District court did not err when it dismissed appellants’
complaint for failure to state a claim, as the appellants’ briefs failed to
list any issues for appeal, did not explain why the district court erred
in dismissing their claims, and lacked citations to authority.
CRS-24
Case Name
Citation
Year
Role
Subject
Holding
Miller v. Scott
592 F.
App’x 747
2015
Authored
majority
Civil Rights
Affirmed: Prisoner failed to exhaust administrative remedies through
the Oklahoma Department of Corrections (ODOC) grievance
process for his claims. The ODOC did not violate the prisoner’s
constitutional rights when the prison chaplain denied his requests for
a halal or a kosher diet after failing to contest the finding that the
prisoner’s voluntary food purchases at the prison canteen belied his
claim of a sincere religious scruple about his diet.
Lee v. Maye
589 F.
App’x 416
2015
Authored
majority
Criminal Law &
Procedure
Appeal dismissed: District court did not err in dismissing the
prisoner’s action as frivolous; the conclusory assertions in the filings
as to the conditions of his confinement were baseless.
United States v.
Denson
775 F.3d
1214
2014
Authored
majority
Criminal Law &
Procedure
Affirmed: Based on the circumstances of the case, police officers
lawfully entered the defendant’s home and conducted a protective
sweep such that the firearms seized during the sweep did not need
to be suppressed. Notwithstanding the officers’ warrantless use of
Doppler radar (before entering the home) to detect human breathing
and movement inside the home, the officers had specific and
articulable reasons to initiate a protective sweep. Finally, the officers
had probable cause to believe that the seized firearms were
contraband.
Myers v. Knight
Protective Serv.
774 F.3d
1246
2014
Authored
majority
Labor &
Employment;
Civil Rights;
Public Benefits
Affirmed: Plaintiff’s representations in his application for Social
Security disability benefits belied his claim of discrimination under the
Americans with Disabilities Act, because they showed he could not
perform the essential job functions of an armed security guard with
or without a reasonable accommodation.
Brown v. Metro. Tulsa
Transit Auth.
588 F.
App’x 849
2014
Authored
majority
Federal Courts
Affirmed: The record supported the district court’s determination
that the plaintiff failed to offer proof of anything more than nominal
damages related to his overturned ban from riding public buses.
United States v. Truby
588 F.
App’x 847
2014
Authored
majority
Criminal Law &
Procedure
Appeal dismissed: Criminal appeal was dismissed pursuant to Anders v.
California because there were no nonfrivolous arguments to be made
on appeal.
CRS-25
Case Name
Citation
Year
Role
Subject
Holding
United States v. Storey
595 F.
App’x 822
2014
Authored
majority
Criminal Law &
Procedure
Affirmed: Fourth Amendment did not protect against searches
performed by private FedEx employees when the state did not
coerce or demand the search. The court did not commit sentencing
error by holding the defendant responsible for all the drugs found
inside the packages or by imposing a sentence within the range
contemplated under the U.S. Sentencing Guidelines.
Bruton v. United
States
587 F.
App’x 504
2014
Authored
majority
Federal Courts
Affirmed: The appellant’s brief failed to directly address the district
court’s ruling and did not identify any defect in it.
Green v. Patton
587 F.
App’x 503
2014
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right during his criminal
proceedings.
United States v.
Sabillon-Umana
772 F.3d
1328
2014
Authored
majority
Criminal Law &
Procedure
Remand for resentencing: District court erred by starting with a
conclusion about the appropriate U.S. Sentencing Guidelines range
for the criminal defendant involved in a drug conspiracy before it had
considered the facts surrounding the defendant’s role in the
conspiracy, which properly inform an assessment of the appropriate
guidelines range. The district court also erroneously concluded that
the government, rather than the court, has the power to determine
the appropriate sentencing reward for a defendant who provided
assistance to the government.
Mattox v. McKune
588 F.
App’x 833
2014
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel.
United States v. Taylor
585 F.
App’x 751
2014
Authored
majority
Criminal Law &
Procedure
Affirmed: District court did not err in determining sentencing based
on the defendant’s history, the need to protect the public, and other
appropriate considerations under existing law.
Yarbary v. Martin,
Pringle, Oliver,
Wallace & Bauer, LLP
584 F.
App’x 918
2014
Authored
majority
Federal Courts
Affirmed: District court did not err in dismissing the complaint
because the plaintiff failed to state a claim supported by facts even
after four rounds of amendment.
Gregory v. Denham
581 F.
App’x 728
2014
Authored
majority
Habeas
Certificate of appealability denied: Petitioner failed to petition the
appropriate court of appeals.
CRS-26
Case Name
Citation
Year
Role
Subject
Holding
Nowlin v. United
States
581 F.
App’x 722
2014
Authored
majority
Criminal Law &
Procedure;
Indian Law;
Habeas
Affirmed: Writ of coram nobis to set aside the petitioner’s conviction
was denied because there was sufficient evidence that confirmed his
status as an “Indian” to support the federal assault conviction by an
“Indian” against “another Indian or other person” within “Indian
country.”
Lee v. Maye
581 F.
App’x 721
2014
Authored
majority
Habeas
Certificate of appealability denied: Petitioner failed to petition the
appropriate court of appeals.
Silva v. Colvin
580 F.
App’x 678
2014
Authored
majority
Public Benefits;
Civil Rights
Affirmed: Application of res judicata was not flawed; providing notice
of time to appeal only in English did not violate due process because
petitioner’s inability to understand the notice was readily remediable
by obtaining an accurate translation at her Social Security office.
Veren v. United States
575 F.
App’x 841
2014
Authored
majority
Federal Courts
Affirmed: Affective disorder and clinical depression were not sufficient
to establish mental incompetence under the standard required to toll
the statute of limitations for the plaintiff’s damages suit.
Garcia v. Lind
574 F.
App’x 857
2014
Authored
majority
Habeas
Certificate of appealability denied: Petition for a writ of habeas corpus
was time-barred.
Morgan v. Addison
574 F.
App’x 852
2014
Authored
majority
Habeas
Certificate of appealability denied: Petition for a writ of habeas corpus
was time-barred.
McKay v. Hayes
577 F.
App’x 848
2014
Authored
majority
Federal Courts
Affirmed: District court did not err in dismissing the case because the
appellant failed to respond to the motion for summary judgment.
Kobel v. Lansing Corr.
Facility
577 F.
App’x 844
2014
Authored
majority
Criminal Law &
Procedure
Affirmed: District court did not err in denying request to reinstate
claims because, even if the plaintiff did not receive court notices to
correct his complaint after changing addresses, nothing prevented
him from apprising the court of his new location or inquiring about
his lawsuit.
Teamsters Local Union
No. 455 v. NLRB
765 F.3d
1198
2014
Authored
majority
Labor &
Employment;
Administrative
Law
Petition for review denied: Employer’s threat to hire permanent
replacements during a lockout resulting from stalled collectivebargaining negotiations violated 29 U.S.C. §158(a)(1), but, because
the employer did not follow through on the threat, the National
Labor Relations Board (NLRB) was not required to hold the lockout
unlawful and award back pay. Rather, the NLRB’s order directing the
company to desist from future threats and posting a notice promising
the same was sufficient.
CRS-27
Case Name
Citation
Year
Role
Subject
Holding
Nouri v. Farris
585 F.
App’x 944
2014
Authored
majority
Habeas
Certificate of appealability denied: Petition for a writ of habeas corpus
was untimely and did not qualify for equitable tolling.
Oliver v. Cline
573 F.
App’x 814
2014
Authored
majority
Habeas
Certificate of appealability denied: Petition for a writ of habeas corpus
was untimely and did not qualify for equitable tolling.
United States v. LeeSpeight
576 F.
App’x 801
2014
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel.
Entek GRB, LLC v.
Stull Ranches, LLC
763 F.3d
1252
2014
Authored
majority
Environmental
Law
Vacated and remanded: Mineral rights leaseholder could cross the
surface owner’s estate to service a well in an adjacent surface estate
owned by the government, because, pursuant to a unitization
agreement, the leaseholder could reenter and occupy so much of the
surface in the unitized area as might be reasonably incident to
extracting minerals from the unit.
MHC Mut. Conversion
Fund, L.P. v. Sandler
O’Neill & Partners,
L.P.
761 F.3d
1109
2014
Authored
majority
Civil Liability;
Federal Courts
Affirmed: Plaintiff company failed to state a claim for relief because the
security issuers’ failed market predictions were insufficient to allege
that they made false or misleading statements under Sections 11 and
10(b) of the Securities Act of 1933.
Griffin v. Smith
572 F.
App’x 625
2014
Authored
majority
Criminal Law &
Procedure
Affirmed: District court did not err in dismissing prisoner’s complaints
for failure to state a claim.
Chavez-Vasquez v.
Holder
572 F.
App’x 627
2014
Authored
majority
Immigration;
Federal Courts
Petition for review denied: Petitioner became subject to removal upon
his conviction, and his pending motion in state court seeking to
vacate his conviction does not preclude his removal.
Jones v. Kansas
572 F.
App’x 648
2014
Authored
majority
Civil Rights;
Federal Courts
Affirmed: District court correctly denied the plaintiff’s motion to
reconsider under Fed. R. Civ. P. 60(b) because the motion did not
identify exceptional circumstances warranting relief and, instead,
tried to relitigate the merits of his 42 U.S.C. §1983 suit.
United States v.
Ramsey
572 F.
App’x 604
2014
Authored
majority
Habeas
Certificate of appealability denied: Petition for a writ of habeas corpus
was untimely and did not qualify for equitable tolling.
United States v.
Hendrix
571 F.
App’x 661
2014
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel.
CRS-28
Case Name
Citation
Year
Role
Subject
Holding
Trugreen Cos., LLC v.
Mower Bros.
570 F.
App’x 775
2014
Authored
majority
Labor &
Employment;
Contracts;
Federal Courts
Affirmed: District court correctly denied attorneys’ fees and costs to
former employees of TruGreen based in Utah, because their new
employer paid for those costs and TruGreen, by contract, was liable
only for costs that the employees incurred in the lawsuit. Further,
the court did not abuse its discretion in awarding the former
employees based in Idaho only the amount they specified as the costs
their attorneys paid toward their defense and not fees the attorneys
otherwise charged.
Van De Weghe v.
Chambers
569 F.
App’x 617
2014
Authored
majority
Civil Rights;
Federal Courts
Affirmed: Officers were entitled to qualified immunity on charges of
malicious prosecution because probable cause existed to pursue at
least one charge against the plaintiff, and the plaintiff did not identify
any clearly established law suggesting that a claim for malicious
prosecution is actionable when other additional charges arising from
the same set of facts are not supported by probable cause. Also, the
district attorney was entitled to Eleventh Amendment immunity as an
arm of the state.
Ali v. Wingert
569 F.
App’x 562
2014
Authored
majority
Civil Rights; First
Amendment
Affirmed: Prisoner’s right to exercise his sincere religious beliefs
under Religious Land Use and Institutionalized Persons Act was not
violated by prison mail room staff, who required him, when sending
and receiving mail, to use the name he had when he was initially
incarcerated alongside the religious name he adopted thereafter.
Barrett v. Salt Lake
City
754 F.3d
864
2014
Authored
majority
Civil Rights;
Labor &
Employment
Affirmed in part, vacated and remanded in part: The county could not
dispute the jury’s finding of unlawful employment retaliation using the
framework set forth by the Supreme Court in McDonnell Douglas
Corp. v. Green; intervening Supreme Court case law did not upset the
jury’s verdict; and the district court did not abuse its discretion in
ordering the county to reinstate the plaintiff’s preretaliatory
demotion pay grade as an equitable remedy. However, the district
court’s award of fees incurred during an optional, internal grievance
process was improper because that process was not a prerequisite
to suit.
Carr v. Miller
563 F.
App’x 656
2014
Authored
majority
Habeas
Certificate of appealability denied: Petition for a writ of habeas corpus
was untimely and did not qualify for equitable tolling.
CRS-29
Case Name
Citation
Year
Role
Subject
Holding
Hwang v. Kan. State
Univ.
753 F.3d
1159
2014
Authored
majority
Civil Rights;
Labor &
Employment
Affirmed: Plaintiff’s former employer did not violate the Rehabilitation
Act by refusing to allow her to take more than six months of sick
leave because an absence of that length would not allow her to
perform her essential job functions (teaching at a university) and did
not qualify as a reasonable accommodation for her disability (cancer
treatment).
United States v. Reese
559 F.
App’x 777
2014
Authored
majority
Civil Rights;
Criminal Law &
Procedure
Reversed and remanded: Government acknowledged that plaintiff’s
federal conviction for being a felon unlawfully in possession of
firearms was unsustainable because his civil rights had been restored,
including the right to vote, serve on a jury, seek public office, and
possess firearms under state law.
United States v. Chon
559 F.
App’x 779
2014
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right during his criminal
proceedings, nor was a successive collateral proceeding justified.
Lube v. NCO Fin.
Servs.
566 F.
App’x 713
2014
Authored
majority
Federal Courts
Affirmed: There was no reversible error in the district court’s
decision to deny a motion for reconsideration, and the deadline for
appeal to the original dismissal of the plaintiff’s suit passed.
Genberg v. Porter
566 F.
App’x 719
2014
Authored
majority
Labor &
Employment
Affirmed: The arbitration clause in the plaintiff’s employment
agreement did not apply to claims against the employer’s senior
directors, board of directors, and outside counsel.
Hogan v. Utah
Telecomm. Open
Infrastructure Agency
566 F.
App’x 636
2014
Authored
majority
Civil Liability;
Labor &
Employment
Affirmed in part and remanded in part: Utah state law wrongful
discharge claim applied to all employees, not only at-will employees.
Robles v. RMS Mgmt.
Solutions, LLC
565 F.
App’x 718
2014
Authored
majority
Federal Courts
Affirmed: Other than the Supreme Court, federal courts lack
jurisdiction to hear appeals from final state court judgments deciding
federal questions under Supreme Court doctrine in Rooker v.
Feldman.
Duran v. Att’y Gen. of
New Mexico
565 F.
App’x 719
2014
Authored
majority
Criminal Law &
Procedure
Affirmed: Defense counsel’s decision not to consider a psychologist’s
report suggesting that the defendant was not on his antipsychotic
medication at the time of the crime did not amount to a denial of
effective assistance of counsel under the Sixth Amendment.
Stirling v. Stirling
565 F.
App’x 676
2014
Authored
majority
Civil Rights
Affirmed: Pro se plaintiff failed to state a claim for violation of her
constitutional rights against her ex-husband and new wife under 42
U.S.C. §1983 because the defendants were not state actors.
CRS-30
Case Name
Citation
Year
Role
Subject
Holding
Taber v. Farris
565 F.
App’x 677
2014
Authored
majority
Habeas
Certificate of appealability denied: Petition for a writ of habeas corpus
was untimely and did not qualify for equitable tolling.
Crabtree v. Oklahoma
564 F.
App’x 402
2014
Authored
majority
Civil Rights
Affirmed: Individual convicted of sexually abusing two children failed
to state a claim against the State of Oklahoma under 42 U.S.C. §1983
for false arrest, false imprisonment, and malicious prosecution.
Howard v. Ferrellgas
Partners, L.P.
748 F.3d
975
2014
Authored
majority
Civil Liability
Vacated and remanded: When there are material facts as to whether
the parties intended to arbitrate the dispute, the Federal Arbitration
Act requires the court to hold a summary trial on the issue before
proceeding to trial on the merits.
United States v.
Bergman
746 F.3d
1128
2014
Authored
majority
Criminal Law &
Procedure
Vacated and remanded: After defendant’s conviction was vacated for
ineffective assistance of counsel, the district court abused its
discretion in refusing to permit a new trial without first finding that
the circumstances made it impossible for the defendant to obtain
effective assistance in a retrial.
Lawrence v. Sch. Dist.
No. 1
560 F.
App’x 791
2014
Authored
majority
Civil Rights;
Labor &
Employment
Affirmed: District court did not err in dismissing the plaintiff’s claims
for retaliation under 42 U.S.C. §1981 when there was no showing of
municipal liability and an independent arbitrator found the
termination of employment was warranted.
Lately v. Colvin
560 F.
App’x 751
2014
Authored
majority
Public Benefits;
Administrative
Law
Affirmed: The administrative law judge did not commit reversible
error in denying petitioner’s request for disability and supplemental
security benefits after determining that, although she suffered from
vestibular disorder, depression, and panic disorder, the petitioner
retained residual functional capacity to perform a restricted range of
light work, including her past jobs.
United States v.
Arrowgarp
558 F.
App’x 824
2014
Authored
majority
Habeas
Certificate of appealability denied: Petition for a writ of habeas corpus
was untimely and did not qualify for equitable tolling.
StorageCraft Tech.
Corp. v. Kirby
744 F.3d
1183
2014
Authored
majority
Civil Liability;
Intellectual
Property
Affirmed: There was no error in awarding $2.92 million as damages
because Utah law allowed for reasonable royalties as damages for
misappropriation of trade secrets, and there was no error in the
admission of the testimony of the plaintiff’s damages expert.
Coats v. Utah
557 F.
App’x 795
2014
Authored
majority
Labor &
Employment;
Federal Courts
Affirmed: The Utah Department of Workforce Services did not waive
its Eleventh Amendment immunity from suit for alleged violations of
the federal Age Discrimination in Employment Act.
CRS-31
Case Name
Citation
Year
Role
Subject
Holding
United States v. Brown
555 F.
App’x 838
2014
Authored
majority
Criminal Law &
Procedure
Affirmed: A traffic stop was not extended beyond the period
permitted by the Fourth Amendment when the officer detected the
odor of marijuana emanating from the defendant’s car and took
further investigative action, and subsequent events provided the
officer with probable cause to search the defendant’s vehicle.
United States v.
Herrera-Cruz
555 F.
App’x 831
2014
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel or
otherwise denied a constitutional right.
United States v.
Baldwin
745 F.3d
1027
2014
Authored
majority
Criminal Law &
Procedure;
Administrative
Law
Affirmed: Federal regulations prohibiting disobeying a federal police
officer and disrupting performance of official duties constituted valid
criminal prohibitions, were not unconstitutionally vague, and were
subject to a “knowingly” mens rea for which there was sufficient
evidence to convict the defendant; and the lack of proof of “posted”
notice of the regulations was not plain error by the district court.
Dixon v. Colvin
556 F.
App’x 681
2014
Authored
majority
Administrative
Law; Public
Benefits
Affirmed: Administrative law judge’s decision that plaintiff was not
entitled to certain Social Security disability benefits was supported by
substantial evidence and applied the correct legal standards.
Winfield v. Utah
556 F.
App’x 669
2014
Authored
majority
Habeas
Certificate of appealability denied: When the defendant, who was
convicted in a state court criminal proceeding, asserted arguments
that were procedurally barred under the law of the state in which he
was convicted, federal courts could not consider the barred
arguments in habeas proceedings.
United States v.
Escobar
554 F.
App’x 711
2014
Authored
majority
Criminal Law &
Procedure
Affirmed: Admission of statements allegedly made prior to a Miranda
warning did not constitute grounds for reversal of a conviction when
it was clear beyond a reasonable doubt that any putative Miranda
error did not contribute to the jury verdict.
Defazio v. Starwood
Hotels & Resorts
Worldwide, Inc.
554 F.
App’x 692
2014
Authored
majority
Labor &
Employment
Affirmed: Former at-will employee’s claims for wrongful termination
were correctly dismissed because, under Colorado law, an at-will
employment relationship generally can be terminated for any reason,
and no exceptions applied.
Moral v. Hagen
553 F.
App’x 839
2014
Authored
majority
Civil Rights;
Criminal Law &
Procedure
Affirmed: District court properly dismissed the plaintiff’s claim that
her arrest violated her First and Fourth Amendment rights on
qualified immunity grounds when the undisputed material facts
showed there was probable cause for the arrest.
CRS-32
Case Name
Citation
Year
Role
Subject
Holding
Lin Yan v. Holder
559 F.
App’x 658
2014
Authored
majority
Immigration
Petition for review dismissed in part and denied in part: An alien was
properly denied asylum when there was sufficient evidence to
support the finding that he was not credible and he failed to exhaust
his administrative remedies related to his claim of denial of due
process.
Sanders v. Miller
555 F.
App’x 750
2014
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel.
United States v.
Contreras-Hernandez
552 F.
App’x 850
2014
Authored
majority
Criminal Law &
Procedure
Affirmed: There was no error by the district in ordering a 24-month
sentence for the criminal defendant even though the government
recommended an 18-month sentence when the defendant had,
among other relevant factors, a record of recidivism.
Martinez v. Williams
553 F.
App’x 806
2014
Authored
majority
Habeas
Certificate of appealability denied: Petition for a writ of habeas corpus
was time-barred.
Lollis v. Archuleta
553 F.
App’x 798
2014
Authored
majority
Habeas
Certificate of appealability denied: Petition for a writ of habeas corpus
was time-barred.
Yellowbear v. Lampert
741 F.3d 48
2014
Authored
majority
First
Amendment;
Indian Law
Vacated and remanded: On a motion for summary judgment, the
Colorado prison had not met its burden under the Religious Land
Use and Institutionalized Persons Act of 2000 to show that it could
deny a Native American inmate access to a sweat lodge for use as
part of the inmate’s religious practice.
Simon v. Jones
550 F.
App’x 670
2014
Authored
majority
Civil Rights
Certificate of appealability denied: District court correctly concluded
that prison officials properly revoked an inmate’s administrative
privileges and did not deny the inmate’s constitutional rights based
on the evidence of the case.
United States v.
Madrid-Apodaca
556 F.
App’x 664
2013
Authored
majority
Criminal Law &
Procedure
Affirmed: When the defendant pled guilty and agreed to a sentence of
between two and eight months, the district court did not err in
ordering a nine-month sentence based on applicable sentencing
factors, including the record of recidivism and need for deterrence.
Amerson v. United
States
550 F.
App’x 603
2013
Authored
majority
Civil Rights;
Federal Courts
Denied and dismissed: A prisoner’s state court action against his
warden and other defendants based on the Uniform Commercial
Code was without merit and constituted a frivolous filing under the
Prison Litigation Reform Act.
CRS-33
Case Name
Citation
Year
Role
Subject
Holding
United States v. Green
548 F.
App’x 557
2013
Authored
majority
Habeas
Certificate of appealability denied: The defendant, who was convicted
on federal drug charges, did not make a substantial showing of
ineffective assistance of counsel.
Ali v. Province
550 F.
App’x 619
2013
Authored
majority
Civil Rights;
Federal Courts
Affirmed: District court correctly dismissed an inmate’s claim under
42 U.S.C. §1983 when the inmate’s counsel failed to respond to a
motion for summary judgment and the inmate did not exhaust
administrative remedies.
United States v.
Gomez
550 F.
App’x 613
2013
Authored
majority
Criminal Law &
Procedure
Affirmed: When the defendant pled guilty to participating in a
methamphetamine distribution conspiracy, there was no error on the
part of the district court in its determination of the applicable
advisory sentencing guidelines or imposition of a sentence within the
range of the guidelines.
United States v.
Pursley
550 F.
App’x 575
2013
Authored
majority
Habeas
Certificate of appealability denied: The defendant did not make a
substantial showing of ineffective assistance of counsel.
Arellano v. Medina
547 F.
App’x 912
2013
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right during his criminal
proceedings.
Gardner v. Arrowichis
543 F.
App’x 891
2013
Authored
majority
Habeas; Indian
Law
Affirmed: District court properly dismissed petitioners’ request for
habeas relief against tribal officials when it was unclear whether the
petitioners were in custody of the tribal officials and the petitioners
did not comply with the court’s order to file a new pleading that
more clearly described the essential facts.
United States v.
Castillo-Najer
541 F.
App’x 895
2013
Authored
majority
Criminal Law &
Procedure
Affirmed: After he was convicted for aiding in the distribution of
marijuana, the defendant did not present sufficient basis to mandate a
new trial.
United States v. Harris
735 F.3d
1187
2013
Authored
majority
Criminal Law &
Procedure
Affirmed: No Fourth Amendment violation occurred when law
enforcement officers discovered an illegal gun and drugs belonging to
the defendant in the course of carrying out a valid warrant to search
defendant’s property for evidence of a different crime.
CRS-34
Case Name
Citation
Year
Role
Subject
Holding
Blackmon v. Sutton
734 F.3d
1237
2013
Authored
majority
Civil Rights
Affirmed in part and reversed in part: Juvenile detention officials were
properly denied summary judgment based on qualified immunity in a
42 U.S.C. §1983 claim based on the use of a restraining chair for
purely punitive purposes and on denial of access to mental health
medical care, but the plaintiff did not allege sufficient facts to support
his failure-to-transfer claim against the detention facility director.
Roberts v. IBM
733 F.3d
1306
2013
Authored
majority
Civil Rights;
Labor &
Employment
Affirmed: The evidence supported the district court’s grant of
summary judgment to defendants on the plaintiff’s claims for age
discrimination under the Age Discrimination in Employment Act and
state tort law.
Fitzgerald v. United
States Bank
537 F.
App’x 811
2013
Authored
majority
Contracts
Affirmed: In a claim for breach of contract and other civil claims, the
district court properly considered the relevant contracts and
dismissed the complaint when the plaintiffs’ claims were inconsistent
with the contracts at issue.
United States v. Zaler
537 F.
App’x 808
2013
Authored
majority
Habeas
Certificate of appealability denied: Petitioner’s application for a
certificate of appealability was untimely and was properly denied.
Zisumbo v. Ogden
Reg’l Med. Ctr.
536 F.
App’x 832
2013
Authored
majority
Federal Courts
Affirmed: District court properly denied the plaintiff’s motion to
amend his complaint to add a new legal theory because it was
untimely, and it correctly dismissed plaintiff’s subsequently filed
second lawsuit asserting that new theory based on the rule against
claim-splitting.
Hess v. Trammell
535 F.
App’x 765
2013
Authored
majority
Habeas
Certificate of appealability denied and appeals dismissed: Criminal
defendant failed to establish that his convictions were attributable to
ineffective assistance of counsel, and there was no error in the
district court’s decision to deny appointment of counsel in the
habeas petition.
United States v.
Martinez
543 F.
App’x 770
2013
Authored
majority
Criminal Law &
Procedure
Appeal dismissed: There was no error in the district court’s decision
to apply the statutory mandatory minimum sentence of 60 months in
jail for a guilty plea for possession of cocaine with intent to
distribute, and the criminal appeal was dismissed pursuant to Anders
v. California because there were no nonfrivolous arguments to be
made on appeal.
CRS-35
Case Name
Citation
Year
Role
Subject
Holding
Ferguson v. Shinseki
543 F.
App’x 750
2013
Authored
majority
Civil Rights;
Labor &
Employment
Affirmed: When the undisputed record demonstrated that the plaintiff
was not qualified for the job for which she applied, the district court
correctly granted summary judgment for the defendants on the
plaintiff’s claim for discrimination on the basis of gender.
Warner v. Ed Bozarth
Chevrolet
533 F.
App’x 861
2013
Authored
majority
Federal Courts
Affirmed: When a pro se plaintiff chose to use a facsimile transmission
to deliver a pleading without any cover sheet, time stamp, or
certificate of service, she assumed the risk that it would not be timely
delivered and that her case would be dismissed.
United States v.
Goodwin
541 F.
App’x 851
2013
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel.
United States v. Willis
533 F.
App’x 849
2013
Authored
majority
Criminal Law &
Procedure
Affirmed: The defendant’s motion to suppress was correctly denied
because law enforcement officers had reasonable suspicion to stop
and question the defendant.
United States v.
Summers
539 F.
App’x 877
2013
Authored
majority
Habeas
Certificate of appealability denied: After a conviction for conspiracy to
possess methamphetamine with intent to distribute, the petitioner
did not make a substantial showing that he was denied
constitutionally effective counsel.
Sudduth v. Raemisch
532 F.
App’x 823
2013
Authored
majority
Habeas
Affirmed: Petition for a writ of habeas corpus was untimely and did
not qualify for equitable tolling.
Novell, Inc. v.
Microsoft Corp.
731 F.3d
1064
2013
Authored
majority
Civil Liability
Affirmed: Microsoft’s decision to withdraw certain previously
extended information that would have allowed developers to create,
prior to the release of the Windows 95 operating system,
applications that would be compatible with that system did not
amount to anticompetitive behavior under the Sherman Act, and the
district court correctly entered a directed verdict in favor of
Microsoft on that claim.
Dale K. Barker Co.,
P.C. v. Plaza
541 F.
App’x 810
2013
Authored
majority
Federal Courts
Affirmed: The date of filing of an amended complaint, adding a
defendant in his individual capacity, related back to the date of
original filing, and the district court did not err or abuse its discretion
in other contested rulings.
CRS-36
Case Name
Citation
Year
Role
Subject
Holding
Fletcher v. United
States
730 F.3d
1206
2013
Authored
majority
Indian Law
Reversed: Members of the Osage tribe had a statutory right to compel
the government to provide an accounting of the funds held by the
government in trust pursuant to a 1906 law that directed royalties
earned by the mineral estate in lands belonging to the Osage tribe to
be held in trust with a portion to be distributed to tribe members.
United States v.
Washington
F. App’x
810
2013
Authored
majority
Criminal Law &
Procedure
Affirmed: A damaged cell phone left in a hotel bathroom after
checkout time was properly treated as abandoned; therefore, the
phone could be admitted as evidence in a criminal prosecution even
though it was obtained in a warrantless search of the hotel room.
Lopez v. Holder
532 F.
App’x 797
2013
Authored
majority
Immigration
Petition for review denied: A Guatemalan citizen’s request to reopen his
deportation proceedings for the third time was correctly dismissed
as untimely and “number barred.”
Shue v. Custis
531 F.
App’x 941
2013
Authored
majority
Civil Rights
Affirmed: Plaintiff’s claims under 42 U.S.C. §1983 against his former
public defender and the attorney’s former employer failed as a
matter of law because the public defender did not act under color of
state law, as required for recovery under the statute, while providing
legal assistance to a client accused of criminal wrongdoing.
Niemi v. Lasshofer
728 F.3d
1252
2013
Authored
majority
Civil Liability;
Federal Courts
Vacated and remanded: District court erred in granting a preliminary
injunction freezing certain defendants’ assets and ordering them to
deposit $2.18 million in escrow because the plaintiffs lacked standing
under the state statute that potentially authorized the injunctive
relief.
Buck v. CF&I Steel,
L.P.
531 F.
App’x 936
2013
Authored
majority
Labor &
Employment
Affirmed: District court correctly concluded that there was no
genuine issue of material fact to support a possible breach of the
collective bargaining agreement, and the union did not act in a
discriminatory, dishonest, arbitrary, or perfunctory fashion.
Rodriguez v. Colorado
531 F.
App’x 921
2013
Authored
majority
Federal Courts
Affirmed: The district court properly dismissed the plaintiff’s case
when, after the pro se plaintiff filed three different complaints that
did not meet minimum pleading standards, the district court offered
the opportunity for the filing of a fourth version of the complaint, and
the plaintiff allowed two months to pass without filing a new pleading.
CRS-37
Case Name
Citation
Year
Role
Subject
Holding
Keeler v. ARAMARK
536 F.
App’x 771
2013
Authored
majority
Labor &
Employment;
Civil Rights
Affirmed: The employer offered legitimate, nonretaliatory, and
nonpretextual reasons for firing the plaintiff, including intimidation of
coworkers, a threatened riot, and refusal to cooperate with
investigations, and there was no error by the district court in
refusing to allow the plaintiff’s state law civil claims to proceed to
trial.
Genova v. Banner
Health
734 F.3d
1095
2013
Authored
majority
Health Law &
Civil Liability
Affirmed: An emergency room doctor who claimed his superiors
terminated him for reporting overcrowded emergency room
conditions in which patients should have been transported to other
hospitals did not present a valid claim for violation of the Emergency
Medical Treatment and Active Labor Act, and the district court did
not err in dismissing the plaintiff’s state law tort and contract claims.
United States v.
Munoz-Pena
530 F.
App’x 846
2013
Authored
majority
Criminal Law &
Procedure;
Immigration
Affirmed: The convicted criminal defendant’s sentence of 56 months
in prison for unlawfully reentering the United States was less than the
range suggested under the U.S. Sentencing Guidelines, and the
district court did not err by taking into consideration crimes
committed within 10 years of the defendant’s act of reentry or by
choosing not to further depart downward from the advisory
sentencing range.
Singleton v. Ploughe
530 F.
App’x 843
2013
Authored
majority
Federal Courts
Affirmed: When a pro se inmate attempted to seek relief from a
district court without first filing a complaint and opening a civil case,
and did not abide by the court’s instructions on how to correctly file
within 30 days, the district court properly dismissed the case.
Decker v. Roberts
530 F.
App’x 844
2103
Authored
majority
Habeas
Certificate of appealability denied and appeal dismissed: Petitioner did
not make a substantial showing that he was denied constitutionally
effective counsel or otherwise denied a constitutional right.
United States v.
Esquivel-Rios
725 F.3d
1231
2013
Authored
majority
Criminal Law &
Procedure
Remanded: District court should have conducted further fact-finding
with regard to whether the officer had reasonable suspicion for a
traffic stop based on the lack of a valid vehicle registration, when the
stop was based on a database that “usually” did not return accurate
vehicle registration information, but the defendant’s remaining
objections to admission of evidence and the conduct of the trial were
either without merit or harmless error.
CRS-38
Case Name
Citation
Year
Role
Subject
Holding
Larrieu v. Best Buy
Stores LP
517 F.
Appx’ 635
2013
Authored
majority
Civil Liability
Reversed and remanded: Following an answer by the Colorado
Supreme Court to a question certified to it by the Tenth Circuit
concerning the scope of liability under a Colorado statute at issue in
the case, district court’s summary judgment in favor of the defendant
was reversed and the case was remanded for further proceedings
consistent with the state court ruling.
Wood v. Milyard
721 F.3d
1190
2013
Authored
majority
Habeas; Criminal
Law &
Procedure
Remanded: The convicted criminal defendant’s constitutional
arguments were not procedurally barred in a federal habeas petition
based on the state law procedural rules in effect at the time of
conviction and appeal; the Double Jeopardy Clause prohibited
simultaneous convictions for first and second degree murder in a
case involving the death of a single victim conviction; further
proceedings were necessary to determine which conviction should
be terminated; but the defendant waived his Sixth Amendment claim
for a right to a jury trial during prior proceedings.
Jensen v. Solvay
Chems.
721 F.3d
1180
2014
Authored
majority
Insurance;
Contracts
Affirmed: The retirement plan administrator and sponsor’s failure to
meet statutory notice requirements under the Employee Retirement
Income Security Act of 1974 was not “egregious” within the meaning
of the act, and therefore the plaintiffs were not permitted to a
restoration of certain lost retirement benefits as a remedy.
Montano-Vega v.
Holder
721 F.3d
1175
2013
Authored
majority
Immigration
Affirmed: A federal regulation which deemed appeals to the Board of
Immigration Appeals abandoned if the appellant leaves the country
was not inconsistent with federal statute and did not violate the
petitioner’s due process rights.
United States v.
Nelson
517 F.
App’x 619
2013
Authored
majority
Criminal Law &
Procedure
Affirmed: There was no error in the district court’s sentencing of an
individual who pled guilty to sexual abuse of his minor daughter.
Osborn v. Lampert
516 F.
App’x 712
2013
Authored
majority
Civil Rights
Affirmed: An inmate had not been denied a constitutional right to
access to courts as a result of an allegedly inadequate prison library
when he could not show an actual injury resulting from the prison’s
library policy.
United States v. Dyke
718 F.3d
1282
2013
Authored
majority
Criminal Law &
Procedure
Affirmed: A government’s undercover sting operation was not
“outrageous government conduct” that violated the defendants’ due
process rights.
CRS-39
Case Name
Citation
Year
Role
Subject
Holding
Acker v. Dinwiddie
516 F.
App’x 692
2013
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right during his criminal
proceedings.
Jenner v. Faulk
516 F.
App’x 691
2013
Authored
majority
Habeas
Certificate of appealability denied: Petition for a writ of habeas corpus
was untimely and did not qualify for equitable tolling.
United States v. Bly
518 F.
App’x 599
2013
Authored
majority
Criminal Law &
Procedure
Affirmed: The convicted defendant was not entitled to a reduction in
his sentence because the postsentencing change in the U.S.
Sentencing Guidelines did not apply to his convictions.
Goosby v. Trammell
515 F.
App’x 776
2013
Authored
majority
Habeas
Certificate of appealability denied: Petition for a writ of habeas corpus
was time-barred.
Whitmore v. Parker
525 F.
App’x 865
2013
Authored
majority
Habeas; Criminal
Law &
Procedure
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right during his criminal
proceedings and failed to exhaust administrative remedies before
bringing a claim under 42 U.S.C. §1983 arising from his treatment
while incarcerated.
United States v.
Petersen
525 F.
App’x 808
2013
Authored
majority
Criminal Law &
Procedure
Reversed and remanded: At the time of the search of defendant’s
vehicle, law enforcement officers had probable cause to believe a
burglary had been committed, and evidence gathered during the
search should not have been suppressed.
United States v. Bell
526 F.
App’x 880
2013
Authored
majority
Habeas
Certificate of appealability denied: District court correctly dismissed the
petitioner’s motion to reconsider a prior denial of his attempt to
attack a state court criminal conviction collaterally because the
motion to reconsider was not filed within a reasonable time.
Heinrich v. City of
Casper
526 F.
App’x 862
2013
Authored
majority
Federal Courts;
Civil Rights
Affirmed: Designation as a corporate designee for a deposition on
behalf of a municipality, on its own accord, does not render an
individual a final policymaker in such a manner that the deponent can
formulate an official municipal policy or custom sufficient to create
liability under 42 U.S.C. §1983.
United States v. AvitiaBustamante
514 F.
App’x 827
2013
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right during his criminal
proceedings, and there was no plain error in the district court’s
sentence of 46 months in prison for a guilty plea of reentering the
country unlawfully under 8 U.S.C. §1326(a)
CRS-40
Case Name
Citation
Year
Role
Subject
Holding
Palmerin v. Johnson
Cty.
524 F.
App’x 431
2013
Authored
majority
Labor &
Employment;
Civil Liability
Affirmed: District court did not err in entering judgment against the
at-will employee plaintiff on his state law retaliation claim under
Kansas law.
United States v.
Chapman
521 F.
App’x 710
2013
Authored
majority
Criminal Law &
Procedure
Affirmed: There was no error in the district court’s decision to issue
a 70-month sentence to a former employee of the New Mexico
Department of Corrections who pled guilty to soliciting bribes in a
case in which the defendant’s efforts to prevent a witness from
speaking to investigators and to mask bribes as loans constituted
obstruction of justice.
United States v. Mills
514 F.
App’x 769
2013
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right during his criminal
proceedings.
United States v.
Cornelio-Legarda
514 F.
App’x 771
2013
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel or
otherwise denied a constitutional right.
Carani v. Meisner
521 F.
App’x 640
2013
Authored
majority
Federal Courts;
Civil Rights
Affirmed: District court correctly granted summary judgment
dismissing the constitutionally based false arrest and false
imprisonment claims because law enforcement officials had probable
cause for the arrest; the remaining claims in the complaint either
were not cognizable or not supported by sufficient facts to state a
claim on which relief could be granted; and the award of attorney
fees to certain defendants was not erroneous.
United States v.
Johnson
565 F.
App’x 771
2013
Authored
majority
Criminal Law &
Procedure
Affirmed: When a defendant, who was serving a term of a supervised
relief for a prior criminal conviction, was arrested and pled guilty to
new criminal drug charges, the district court did not err in its
decision to impose consecutive sentences for the new drug offense
and for violation of the supervised relief.
United States v. Alter
512 F.
App’x 744
2013
Authored
majority
Criminal Law &
Procedure
Appeal dismissed: Criminal appeal was dismissed pursuant to Anders v.
California because there were no nonfrivolous arguments to be made
on appeal.
CRS-41
Case Name
Citation
Year
Role
Subject
Holding
Stewart Title Guar.
Co. v. Dude
708 F.3d
1191
2013
Authored
majority
Civil Liability
Affirmed: The plaintiff title company justifiably relied on the
defendants’ representations that there were no preexisting liens on a
parcel of property, and its reliance was sufficient to support the
jury’s verdict that the defendants were liable for fraudulent
misrepresentation.
Ciempa v. Jones
511 F.
App’x 781
2013
Authored
majority
First
Amendment
Affirmed: There was no reversible error in the district court’s
decision granting summary judgment dismissing the plaintiff-inmate’s
claims alleging violations of his rights under the First and Fourteenth
Amendments and the Religious Land Use and Institutionalized
Persons Act of 2000 (RLUIPA) because, among other reasons,
RLUIPA does not create a claim against prison employees in their
individual capacities and the district court did not abuse its discretion
in adjudicating certain procedural matters.
United States v.
Ramos-Carrillo
511 F.
App’x 739
2013
Authored
majority
Criminal Law &
Procedure
Affirmed: There was insufficient evidence in the record to support the
defendant’s arguments that the grand jury heard false testimony or
that the government deliberately prompted a coconspirator to testify
falsely, and the jury’s decision to render a guilty verdict before the
court provided an answer to questions the jury posed to the court
during deliberations demonstrated that the jury was able to resolve
its own question without the court’s assistance.
Anchondo v. Dunn
511 F.
App’x 736
2013
Authored
majority
Civil Liability;
Federal Courts
Affirmed: When counsel for a corporation that was ordered to pay
the plaintiff’s fees and costs in a class action case acted in bad faith by
concealing the existence of a professional liability insurance policy, an
award of sanctions against the attorney for the unpaid attorneys’ fees
in the class action was appropriate.
Newsom v. Ottawa
Cty. Bd. of Comm’rs
511 F.
App’x 718
2013
Authored
majority
Civil Rights;
Federal Courts
Affirmed: The plaintiff’s amended complaint, which recited the
elements of the causes of action without explaining which defendants
committed which wrong or how, failed to state a claim on which
relief could be granted.
McDonald v. Colorado
510 F.
App’x 747
2013
Authored
majority
Federal Courts
Affirmed: District court correctly abstained from hearing plaintiff’s
complaint against two state court judges, and the defendant-judges
were correctly protected under the doctrines of judicial and Eleventh
Amendment immunity.
CRS-42
Case Name
Citation
Year
Role
Subject
Holding
Winbush v. Faulk
510 F.
App’x 746
2013
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right during his criminal
proceedings.
ClearOne Commc’ns
v. Bowers
509 F.
App’x 798
2013
Authored
majority
Civil Liability;
Federal Courts;
Intellectual
Property
Affirmed: There was no error in, among other rulings, dissolving a
temporary restraining order allowing the plaintiff to purge its stolen
trade secrets from the defendant’s computers when the process of
removing the information became protracted and unmanageable, or
awarding attorney’s fees against a defendant after an automatic stay
in bankruptcy court was lifted. However, a separate award of
appellate attorney’s fees was vacated and remanded for further
consideration of the scope of contempt liability under the Utah
Liability Reform Act.
Jelitto v. Astrue
509 F.
App’x 712
2013
Authored
majority
Administrative
Law; Public
Benefits
Affirmed: There was no reversible error in the administrative law
judge’s (ALJ’s) conclusion that the applicant was able to perform light
work and was thus not entitled to supplemental security benefits; the
opinion of the applicant’s treating doctor was not adequately
supported, and the ALJ did not err in its treatment of competing
opinions from psychologists.
United States v. Shobe
508 F.
App’x 845
2013
Authored
majority
Criminal Law &
Procedure
Affirmed: Following a conviction for two bank robberies and
associated conspiracy and federal firearms charges, there was no
error in the district court’s sentencing, which included a downward
deviation, of a total of 397 months’ imprisonment.
Smith v. McCord
707 F.3d
1161
2013
Authored
majority
Federal Courts
Affirmed: Summary judgment was correctly granted on the plaintiff’s
excessive force claim under 42 U.S.C. §1983 because plaintiff’s
counsel failed to respond to defendants’ arguments that they were
entitled to qualified immunity.
This opinion was modified by Smith v. McCord, No. 12-2041, 2013
U.S. App. LEXIS 3549 (10th Cir. Jan. 29, 2013) to make “stylistic
changes” necessary for publication. That opinion is not listed here.
Arnold Oil Props.,
L.L.C. v. Schlumberger
Tech. Corp.
508 F.
App’x 715
2013
Authored
majority
Civil Liability
Affirmed: The prevailing party on a breach of contract claim to
recover for “labor and services rendered” was entitled to recoup its
attorneys’ fees under an Oklahoma state statute, and there was no
requirement that fees be apportioned when the same amount of time
necessarily would have been devoted to the case even if the non-feebearing claims were not included.
CRS-43
Case Name
Citation
Year
Role
Subject
Holding
United States v. Dority
508 F.
App’x 709
2013
Authored
majority
Criminal Law &
Procedure
Affirmed: The petitioner for a writ of audita querela was properly
denied because 28 U.S.C. §2555 was the exclusive remedy to test the
validity of the prior criminal sentence and the petitioner did not
demonstrate that there had been a complete miscarriage of justice.
United States v. Cano
507 F.
App’x 805
2013
Authored
majority
Criminal Law &
Procedure
Appeal dismissed: Criminal appeal was dismissed pursuant to Anders v.
California because there were no nonfrivolous arguments to be made
on appeal.
Griffin v. Kastner
507 F.
App’x 801
2013
Authored
majority
Criminal Law &
Procedure;
Federal Courts
Affirmed: When an inmate who alleged that his involuntary
medication order, transfer, and detention were unlawful failed to
object to a magistrate judge’s recommendation of dismissal and there
was no plain error in the ruling, the district court’s decision to adopt
the magistrate’s recommendation was not subject to reversal.
Beck v. Rudek
507 F.
App’x 803
2013
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make substantial
showing that he was denied constitutionally effective counsel in
connection with his plea dealings.
Gaff v. St. Mary’s Reg’l
Med. Ctr.
506 F.
App’x 726
2012
Authored
majority
Labor &
Employment
Affirmed: The district court did not err in granting summary judgment
for the defendant on the plaintiff’s claim that she was subject to a
hostile work environment and fired for opposing discrimination; the
complained-of statements in the work environment were not severe
or pervasive enough to sustain a hostile environment claim, and there
was no evidence the employer’s proffered reason for firing her—a
threat of violence against a coworker—was pretextual.
Apodaca v. Medina
505 F.
App’x 780
2012
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that his transfer from a correction facility in Colorado to
one in Oklahoma denied him a constitutional right.
United States v.
Marquez-Reveles
505 F.
App’x 771
2012
Authored
majority
Criminal Law &
Procedure;
Immigration
Affirmed: The district court’s sentence of 30 months’ imprisonment
followed by 24 months’ supervised release for unlawfully reentering
the country following a previous deportation was not substantively
unreasonable.
Swain v. Seaman
505 F.
App’x 773
2012
Authored
majority
Civil Rights;
Federal Courts
Affirmed: Because the inmate, who alleged that he was denied a
constitutional right to access courts by virtue of a deficient prison
law library, did not respond to the district court’s bases for
dismissing his claim, the Tenth Circuit affirmed the dismissal.
CRS-44
Case Name
Citation
Year
Role
Subject
Holding
United States v. Reese
505 F.
App’x 733
2012
Authored
majority
Federal Courts;
Civil Rights
Question of state law certified: The court certified a question to the
New Mexico Supreme Court addressing whether an individual who
has completed a deferred sentence for a felony offense is barred
from holding public office (and thus also barred from possessing a
firearm under federal law) without a pardon or certificate from the
governor, or whether the restoration of the right to vote
automatically restores the right to hold office without gubernatorial
approval.
Landrith v. Gariglietti
505 F.
App’x 701
2012
Authored
majority
Federal Courts
Affirmed: The Rooker-Feldman doctrine precluded federal courts from
reviewing a state court custody decision, and there was no error in
the district judge’s decision not to recuse herself or in dismissing the
case as frivolous under 28 U.S.C. §1915(e)(2).
Tinner v. Foster
491 F.
App’x 936
2012
Authored
majority
Federal Courts
Affirmed: The court lacked jurisdiction to hear plaintiff’s appeal
because his notice of appeal was not timely filed.
Kaiser v. Colo. Dep’t
of Corr.
504 F.
App’x 739
2012
Authored
majority
Labor &
Employment;
Civil Rights
Affirmed: When the employee failed to produce evidence that his
employer’s stated reasons for the employee’s firing—absenteeism
and poor performance during training—were pretextual, the district
court’s grant of summary judgment on the plaintiff’s claim for
discrimination under Title VII of the Civil Rights Act of 1964 was
appropriate.
Weeks v. Kansas
503 F.
App’x 640
2012
Authored
majority
Labor &
Employment;
Civil Rights
Affirmed: The district court correctly concluded that plaintiff, a lawyer
for a state agency, could not establish a prima facie case of retaliation
under Title VII of the Civil Rights Act of 1964 when she alleged she
was terminated from employment as in-house counsel for providing
legal advice regarding employee complaints of discrimination. The
plaintiff’s stipulation that she was simply performing her duties as
legal counsel, rather than engaging in protected opposition to
discrimination that might give rise to a retaliatory claim, meant that
her conduct did not fall under the scope of Title VII.
United States v. E.V.
503 F.
App’x 627
2012
Authored
majority
Criminal Law &
Procedure
Affirmed: The government’s conclusion that the defendant did not
comply with the terms of his plea deal, and thus was not entitled to a
recommendation of a reduced sentence, was rationally related to a
legitimate government end and was not made in bad faith when the
government concluded that the defendant offered changing and
inconsistent factual accounts that were false or incomplete.
CRS-45
Case Name
Citation
Year
Role
Subject
Holding
United States v.
Garton
501 F.
App’x 838
2012
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel or that
he was otherwise denied a constitutional right during prior criminal
proceedings.
United States v. Hood
501 F.
App’x 812
2012
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel.
Kilgore v. Weatherly
500 F.
App’x 799
2012
Authored
majority
Civil Rights
Affirmed: The district court properly dismissed as frivolous a claim
that a former state prosecutor and court stenographer violated the
plaintiff’s constitutional rights by not responding to his request for a
full transcript of his state court murder trial for use in his legal
challenge to a separate murder conviction.
United States v. Diaz
500 F.
App’x 798
2012
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel.
Villa v. Dona Ana Cty.
500 F.
App’x 790
2012
Authored
majority
Federal Courts
Affirmed: The district court did not abuse its discretion in dismissing
the complaint and ordering plaintiffs to pay the defendants’ attorneys
as a sanction following plaintiffs’ discovery violations and failure to
comply with court orders.
Patterson v. Williams
500 F.
App’x 792
2012
Authored
majority
Contracts
Affirmed: Applying Kansas choice-of-law rules, the Kansas statute of
limitations on breach of contract applied to the case, and the
plaintiff’s claim was time-barred.
Jobira v. Holder
487 F.
App’x 465
2012
Authored
majority
Immigration
Petition for review denied: The asylum-seekers’ motion to reopen their
deportation proceedings was denied as untimely.
Coburn v. Regents of
the Univ. of California
500 F.
App’x 779
2012
Authored
majority
Labor &
Employment
Affirmed: The plaintiff failed to demonstrate that exceptions to a state
law rule providing that an at-will employee could be terminated for
any reason applied to his case, and the plaintiff’s claim for breach of
an implied employment contract was correctly dismissed.
Bennett v. Johnson
500 F.
App’x 776
2012
Authored
majority
Civil Rights
Affirmed: The district court correctly granted summary judgment for
the defendants on plaintiff’s claim under 42 U.S.C. §1983 because
there was no genuine issue of material fact that the defendants were
either entitled to qualified immunity or were not acting under color
of state law.
CRS-46
Case Name
Citation
Year
Role
Subject
Holding
United States v. Fields
500 F.
App’x 755
2012
Authored
majority
Criminal Law &
Procedure
Appeal dismissed: Criminal appeal was dismissed pursuant to Anders v.
California because there were no nonfrivolous arguments to be made
on appeal.
Lorentzen v. Omer
486 F.
App’x 749
2012
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right during his criminal
proceedings, and he failed to show that he exhausted his claims in
state court before seeking federal relief.
United States v.
Friedman
499 F.
App’x 807
2012
Authored
majority
Criminal Law &
Procedure
Affirmed: When the advisory U.S. Sentencing Guidelines called for a
sentence of between 151 and 188 months, there was no error on the
part of the district judge in sentencing the defendant to 151 months
of incarceration.
United States v.
Martinez
485 F.
App’x 334
2012
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel or that
he was otherwise denied a constitutional right during prior criminal
proceedings.
United States v.
Sullivan
498 F.
App’x 831
2012
Authored
majority
Criminal Law &
Procedure
Appeal dismissed: The defendant waived his right to appeal directly his
sentence in his plea agreement; the government did not relinquish its
right to enforce the plea agreement; and the appellate waiver was
enforceable.
United States v. Allen
497 F.
App’x 853
2012
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel or that
he was otherwise denied a constitutional right during prior criminal
proceedings.
United States v.
Rendon-Martinez
497 F.
App’x 848
2012
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel.
Elwell v. Okla. ex rel.
Bd. of Regents of the
Univ. of Oklahoma
693 F.3d
1303
2012
Authored
majority
Civil Rights
Affirmed: Title II of the Americans with Disabilities Act does not
create a cause of action for employment discrimination cases, and the
plaintiff’s claim under the Oklahoma Anti-Discrimination Act was
correctly dismissed because the defendant did not waive its sovereign
immunity.
Brooks v. Whiteaker
478 F.
App’x 529
2012
Authored
majority
Civil Rights
Affirmed: Summary judgment for the defendants was correctly
granted on the prison inmate’s claim under 42 U.S.C. §1983 because
the inmate failed to exhaust the prison’s grievance procedure.
CRS-47
Case Name
Citation
Year
Role
Subject
Holding
Wyttenbach v. Parrish
496 F.
App’x 796
2012
Authored
majority
Federal Courts
Affirmed: The plaintiff’s suit against his former domestic partner for
breach of the terms of a child custody order from a Texas state
court fell into the “domestic relations exception” to congressional
statutes granting jurisdiction to federal courts.
Banks v. Workman
692 F.3d
1133
2012
Authored
majority
Criminal Law &
Procedure
Affirmed: There was no reversible error in the trial and sentencing
proceedings that led to defendant’s murder conviction and sentence
of death when, among other things, the trial judge allowed ongoing
questioning of a witness who had invoked his Fifth Amendment rights
and the defendant did not preserve his ineffective assistance of
counsel claim arising from an allegedly intoxicated expert witness.
Woolsey v. Citibank,
N.A. (In re Woolsey)
696 F.3d
1266
2012
Authored
majority
Bankruptcy
Affirmed: Under rule set forth in Dewsnump v. Timm, the Bankruptcy
Code does not void a second mortgage on a parcel of property with
a fair market value that is too low to satisfy the balance due on the
first mortgage, leaving no value for the second mortgage.
Hassan v. Colorado
495 F.
App’x 947
2012
Authored
majority
Civil Rights
Affirmed: Article II, Section I, clause 5 of the Constitution, which
states that only a natural-born citizen is eligible to be President, does
not conflict with any other provision of the Constitution, and barred
the appellant for accessing the ballot as a presidential candidate.
Gee v. Pacheco
495 F.
App’x 942
2012
Authored
majority
Civil Rights;
Federal Courts
Affirmed: The district court did not err in dismissing the inmate’s suit
and declining to appoint counsel to hear his 42 U.S.C. §1983 claim
when the prison policy restricting the size of legal materials that
could be kept in the prisoner’s cell was reasonable and did not
excuse the failure to file an amended pleading as ordered.
Rounds v. Clements
495 F.
App’x 938
2012
Authored
majority
First
Amendment;
Civil Rights;
Federal Courts
Affirmed: Taking the allegations in the complaint as true at the motion
to dismiss stage, the plaintiff-inmate alleged sufficient facts in his
retaliatory transfer claim such that the prison official would not be
entitled to Eleventh Amendment immunity under the Ex parte Young
exception.
Public Serv. Co. v.
NLRB
692 F.3d
1068
2012
Authored
majority
Labor &
Employment
Petition for review denied and cross-petition for enforcement of agency
order granted: In a discovery dispute between a labor union and an
employer, the employer waived certain objections by failing to raise
them during administrative proceedings, and, for those objections
that were preserved, the administrative law judge and National Labor
Relations Board correctly ruled that the requested information was
relevant and discoverable.
CRS-48
Case Name
Citation
Year
Role
Subject
Holding
United States v. Reed
481 F.
App’x 448
2012
Authored
majority
Civil Rights;
Federal Courts
Appeal dismissed: The inmate’s appeal of and motion to correct the
district court’s sentencing decisions were untimely.
United States v. Sierra
499 F.
App’x 742
2012
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied constitutionally effective counsel or
otherwise denied a constitutional right.
United States v.
Buckley
508 F.
App’x 698
2012
Authored
majority
Criminal Law &
Procedure
Affirmed: There was sufficient evidence in the record to support the
finding that the defendant exchanged funds with his supplier of
marijuana as alleged in the indictment.
United States v.
Shippley
690 F.3d
1192
2012
Authored
majority
Criminal Law &
Procedure
Affirmed: When the jury returned a guilty verdict on a conspiracy
charge but stated in response to special interrogatories that the
defendant had not conspired to distribute any of the drugs listed in
the indictment, there was no reversible error by the district court in,
among other rulings, instructing the jury to deliberate further and
correct its inconsistent positions.
Palecek v. Jones
473 F.
App’x 866
2012
Authored
majority
Habeas
Certificate of appealability denied: Petition for a writ of habeas corpus
was untimely.
Diperna v. Icon Health
& Fitness, Inc.
491 F.
App’x 904
2012
Authored
majority
Civil Liability;
Contracts
Motion to dismiss denied, reversed, and remanded: The district court
award of $45,000 in fees to the law firm lacked an adequate basis, but
the law firm did not waive its right to appeal the fee amount by
accepting and cashing a check from the former client that was
accompanied by a letter saying the check was tendered “in full
settlement.”
United States v.
Gehringer
474 F.
App’x 751
2012
Authored
majority
Habeas
Certificate of appealability denied: Movant did not make a substantial
showing that he was denied constitutionally effective counsel.
United States v. Huizar
688 F.3d
1193
2012
Authored
majority
Criminal Law &
Procedure;
Immigration
Vacated and remanded: When calculating the defendant’s sentence for
unlawfully reentering the United States after previously being
deported, the district court erred in applying a 16-level upward
adjustment to the base offense level because it was not clear whether
a former California conviction for burglary was a “crime of violence.”
United States v.
Izenberg
481 F.
App’x 444
2012
Authored
majority
Habeas
Certificate of appealability denied: Movant did not make a substantial
showing that he was denied constitutionally effective counsel at
sentencing.
CRS-49
Case Name
Citation
Year
Role
Subject
Holding
United States v.
Thompson
470 F.
App’x 715
2012
Authored
majority
Habeas
Certificate of appealability denied: Movant did not make a substantial
showing that he was denied constitutionally effective counsel or that
his guilty plea was involuntary.
BancFirst v. Ford
Motor Co.
489 F.
App’x 264
2012
Authored
majority
Federal Courts
Affirmed: District court did not err in concluding that proposed
expert testimony did not meet standards set forth by the Supreme
Court in Daubert v. Merrell Dow Pharm., Inc., making the testimony
inadmissible.
Blake v. Aramark
Corp.
489 F.
App’x 267
2012
Authored
majority
Federal Courts
Appeal dismissed: Prisoner’s appeal was dismissed for failing to file a
timely notice of appeal.
Alvarado v. Donley
490 F.
App’x 932
2012
Authored
majority
Civil Rights;
Labor &
Employment
Affirmed: Plaintiff did not show that the Air Force’s reason for firing
him (insubordination) was a pretext for either unlawful employment
discrimination on the grounds of race or retaliation for engaging in
protected activity under Title VII of the Civil Rights Act.
Cinnamon Hills Youth
Crisis Ctr., Inc. v. St.
George City
685 F.3d
917
2012
Authored
majority
Civil Rights
Affirmed: Plaintiffs did not show that the city discriminated against or
failed to provide a reasonable accommodation for the disabled by
refusing to grant a zoning variance that would have permitted the
plaintiffs to run a residential treatment facility on the top floor of a
motel.
Larrieu v. Best Buy
Stores, L.P.
491 F.
App’x 864
2012
Authored
majority
Federal Courts;
Civil Liability
Question of state law certified: Federalism and comity interests
necessitated that the Colorado Supreme Court, not the Tenth
Circuit, decide the scope of liability under the Colorado Premises
Liability Act.
Bias v. Astrue
484 F.
App’x 275
2012
Authored
majority
Administrative
Law; Public
Benefits
Affirmed: Claimant was not entitled to Social Security disability
benefits because the administrative law judge correctly determined
that the claimant could perform light work with few restrictions and
perform jobs that exist in significant numbers in the national
economy.
United States v.
Burgdorf
466 F.
App’x 761
2012
Authored
majority
Criminal Law &
Procedure
Affirmed: Defendant’s sentence above that recommended under the
U.S. Sentencing Guidelines—the statutory maximum for
racketeering—was not substantively unreasonable based on his
extensive, serious criminal history.
Buckland v. Buckland
486 F.
App’x 704
2012
Authored
majority
Civil Rights;
Federal Courts
Affirmed: Civil-rights suit was not filed within the statute of
limitations.
CRS-50
Case Name
Citation
Year
Role
Subject
Holding
Winzler v. Toyota
Motor Sales U.S.A.,
Inc.
681 F.3d
1208
2012
Authored
majority
Civil Liability;
Federal Courts
Vacated and remanded: Plaintiff’s claims were moot based on
prudential considerations, given that she was seeking equitable relief
(for the court to order Toyota to notify certain car owners about a
defect and create a fund to pay for repairs), yet, since the lawsuit had
been filed, Toyota had issued a recall that was being overseen by the
National Highway Transportation Safety Administration.
Tilley v. McFarland
467 F.
App’x 804
2012
Authored
majority
Federal Courts
Affirmed: Plaintiff’s complaint alleging that an attorney, judge, and
clerk intimidated him during a court appearance failed to state a
claim for relief.
Burke v. Rudek
483 F.
App’x 516
2012
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing that he was denied a constitutional right during his criminal
proceedings.
United States v.
Maldonado-Ortega
467 F.
App’x 797
2012
Authored
majority
Habeas
Certificate of appealability denied: Movant’s collateral attack on his
conviction and sentence was barred by his plea agreement.
Sisneros v. Office of
Pueblo Cty. Sheriff
466 F.
App’x 755
2012
Authored
majority
Civil Rights
Affirmed: Officers were entitled to qualified immunity, for substantially
the reasons the district court provided.
Kiker v. Cmty. Health
Sys. Prof’l Servs. Corp.
484 F.
App’x 215
2012
Authored
majority
Federal Courts
Affirmed: District court properly awarded fees and costs to plaintiff
for defendant’s wrongful removal to federal court.
White v. Mullins
466 F.
App’x 754
2012
Authored
majority
Civil Rights
Affirmed: Prisoner did not exhaust available administrative remedies
and thus could not pursue his suit under 42 U.S.C. §1983 against
various prison officials.
Tindall v.
Freightquote.com, Inc.
466 F.
App’x 752
2012
Authored
majority
Federal Courts;
Contracts
Affirmed: The district court did not err by enforcing an oral
settlement agreement between the plaintiff and her former employer,
because the plaintiff offered no evidence to demonstrate that the
contract should be voided.
United States v.
Coleman
483 F.
App’x 419
2012
Authored
majority
Criminal Law &
Procedure
Affirmed: Defendant did not show that a police officer acted with
discriminatory purpose when deciding to inspect his truck at the
border and therefore no equal protection violation occurred. Thus,
the district court correctly concluded that the drugs found in
defendant’s truck need not be suppressed.
CRS-51
Case Name
Citation
Year
Role
Subject
Holding
W. World Ins. Co. v.
Markel Am. Ins. Co.
677 F. 3d
1266
2012
Authored
majority
Civil Liability;
Insurance
Reversed and remanded: Oklahoma’s doctrine of equitable
contribution required Markel, as a coinsurer to a haunted house
operation where an employee was injured, to reimburse the other
insurer for its fair share of the attorneys’ fees and costs of the
settlement in the employee’s lawsuit against the haunted house.
Davis v. NewtonEmbry
478 F.
App’x 525
2012
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not show that the trial
court committed an error under the standard set forth by the
Supreme Court in Bruton v. United States by failing to sever the trial
from her codefendant, nor did she show that the prosecutor
improperly commented on her Fifth Amendment right to remain
silent.
Johnson v. Jones
465 F.
App’x 811
2012
Authored
majority
Habeas
Certificate of appealability denied: Petition for a writ of habeas corpus
was untimely and did not qualify for equitable tolling.
United States v.
Bayazeed
465 F.
App’x 810
2012
Authored
majority
Habeas
Certificate of appealability denied: Movant’s waiver of the right to
attack his guilty plea and sentence collaterally was made knowingly
and voluntarily.
United States v. Rivera
478 F.
App’x 509
2012
Authored
majority
Criminal Law &
Procedure
Affirmed: District court did not abuse its discretion by giving the jury
a curative instruction for improper testimony rather than granting a
mistrial. Nor did the government improperly fail to disclose a change
in a witness’s account of the crime in violation of the standard set
forth by the Supreme Court in United States v. Bagley because the
defendant could not show that the testimony was material.
Laidley v. City & Cty.
of Denver
477 F.
App’x 522
2012
Authored
majority
Civil Rights
Affirmed: Under the community caretaking doctrine, the city properly
seized and towed plaintiff’s car after citing him for driving without a
license and thus did not violate the Fourth Amendment. Nor did the
police violate the substantive component of the Due Process Clause
of the Fourteenth Amendment by forfeiting the car through a
provision of the city municipal code.
Proffit v. Wyoming
464 F.
App’x 772
2012
Authored
majority
Habeas
Certificate of appealability denied: Petition for a writ of habeas corpus
was time-barred.
CRS-52
Case Name
Citation
Year
Role
Subject
Holding
United States v.
Johnson
2012 U.S.
App. Lexis
2006
2012
Authored
majority
Criminal Law &
Procedure
Affirmed: The defendant’s crime of possessing a weapon in prison, and
his particular conduct when committing the crime, was a crime of
violence potentially subject to a sentencing enhancement under the
U.S. Sentencing Guidelines. For amended order following the denial
of an en banc rehearing, see below at 475 F. App’x 288.
United States v.
Johnson
475 F.
App’x 288
2012
Authored
majority
Criminal Law &
Procedure
Affirmed: The defendant’s crime of possessing a weapon in prison, and
his particular conduct when committing the crime, was a crime of
violence potentially subject to a sentencing enhancement under the
U.S. Sentencing Guidelines. The crime would still be one of violence
even if the court, as the defendant requested, applied the categorical
approach in determining whether his crime was one of violence,
because the indictment charged the defendant with possessing a
weapon in prison, and that categorically is a crime of violence under
circuit precedent.
United States v.
Summers
479 F.
App’x 159
2012
Authored
majority
Criminal Law &
Procedure
Appeal dismissed: Criminal appeal was dismissed pursuant to the rule
set forth by the Supreme Court in Anders v. California because there
were no nonfrivolous arguments to be made on appeal.
Hand v. Walnut Valley
Sailing Club
475 F.
App’x 277
2012
Authored
majority
Federal Courts
Affirmed: It was not an abuse of discretion for the district court to
dismiss the case with prejudice as a sanction for the plaintiff violating
the court rule requiring participants in court-ordered mediation to
keep information from the proceedings confidential.
Church v. Okla. Corr.
Indus.
459 F.
App’x 806
2012
Authored
majority
Civil Rights;
Habeas
Affirmed: The claims for relief the plaintiff sought, such as that he was
actually innocent of the charges for which he had been convicted,
were not appropriate for suit under 42 U.S.C. §1983, but rather
should have been brought in a petition for a writ of habeas corpus.
United States v.
Maytubby
472 F.
App’x 877
2012
Authored
majority
Habeas
Certificate of appealability denied: Movant did not make a substantial
showing that his appellate counsel was constitutionally ineffective,
and thus he could not escape the procedural bar for claims he failed
to present on direct appeal.
United States v.
Rutherford
472 F.
App’x 863
2012
Authored
majority
Habeas
Certificate of appealability denied: Movant did not make a substantial
showing that his conviction for drug trafficking violated the
Commerce Clause or the Tenth Amendment because judicial
precedent foreclosed his argument that Congress exceeded its
constitutional power in enacting the crimes of conviction.
CRS-53
Case Name
Citation
Year
Role
Subject
Holding
Mitchell v. Medina
459 F.
App’x 800
2012
Authored
majority
Civil Rights;
Federal Courts
Affirmed: Prisoner’s complaint, contending that the Colorado Court
of Appeals erred during his state postconviction proceedings, failed
to state a claim for relief because the judges were immune from suit
and the claims, otherwise, were barred by the rule set forth in Heck
v. Humphrey.
McCormick v. Schmidt
469 F.
App’x 661
2012
Authored
majority
Habeas
Certificate of appealability denied: Petition for a writ of habeas corpus
could not proceed because it contained both exhausted and
unexhausted claims.
Nozlic v. Romano
459 F.
App’x 790
2012
Authored
majority
Civil Rights
Affirmed: Plaintiff failed to allege facts supporting an arguable claim of
discrimination based on disability and thus the district court properly
dismissed the complaint.
United States v. Moser
466 F.
App’x 713
2012
Authored
majority
Criminal Law &
Procedure
Affirmed: The government’s evidence was sufficient to support the
jury’s guilty verdicts for bank fraud and conspiracy to commit bank
fraud.
Smith v. Franklin
465 F.
App’x 788
2012
Authored
majority
Habeas
Certificate of appealability denied: The district court did not err by
failing to convert the prisoner’s petition under 28 U.S.C. §2241 into
civil suit under 42 U.S.C. §1983 because his allegations related to his
parole hearing could have properly been brought in a petition for a
writ of habeas corpus.
George v. United
States
672 F.3d
942
2012
Authored
majority
Federal Courts;
Administrative
Law
Affirmed: Plaintiff’s claim under the Quiet Title Act, concerning a
dispute with the Forest Service about an easement running through a
portion of her property that she wanted to fence in, was barred by
the 12-year statute of limitations, which began running when the
predecessor in interest of the property should have known about the
government’s claim to a fence-free road, and that had happened
about three decades earlier.
United States v.
Coulter
461 F.
App’x 763
2012
Authored
majority
Criminal Law &
Procedure
Affirmed: District court correctly denied motion to suppress because,
even assuming police detention of defendant outside his home was
unlawful, there was no but-for causation between the detention and
the subsequent discovery of an unlawfully possessed firearm inside
the defendant’s home, as police permissibly approached the
defendant’s house for safety reasons, and thereafter obtained
consent to enter from defendant’s girlfriend who was present there.
CRS-54
Case Name
Citation
Year
Role
Subject
Holding
Johnson v. Ezell
448 F.
App’x 861
2012
Authored
majority
Habeas
Certificate of appealability denied: Petitioner did not make a substantial
showing of the denial of a constitutional right.
Hinton v. Bowers
458 F.
App’x 755
2012
Authored
majority
Civil Rights
Affirmed: Prisoner failed to exhaust administrative remedies before
filing suit under 42 U.S.C. §1983 against prison officials.
Trujillo v. Williams
460 F.
App’x 741
2012
Authored
majority
Civil Rights
Affirmed: The prisoner-plaintiff waived any objection on appeal to the
remedial plan that New Mexico proposed in response to his
allegation that the state unlawfully required him to pay postage to
access legal materials.
United States v.
Braden
458 F.
App’x 751
2012
Authored
majority
Criminal Law &
Procedure
Affirmed: There was no reason to disturb the district court’s finding
crediting testimony that the defendant had the requisite awareness
while under the influence of methamphetamine to voluntarily waive
her Fifth Amendment rights, and thus her confession did not require
suppression. Additionally, the district court correctly calculated the
amount of drugs attributable to the defendant for the purpose of
applying the U.S. Sentencing Guidelines.
United States v. Moore
456 F.
App’x 762
2012
Authored
majority
Criminal Law &
Procedure
Affirmed: The defendant’s criminal-history category did not
substantially overstate the seriousness of his criminal history, and
thus he did not rebut the presumption that his imposed sentence,
which was less than recommended under the U.S. Sentencing
Guidelines, was reasonable.
George v. Astrue
451 F.
App’x 767
2011
Authored
majority
Administrative
Law; Public
Benefits
Reversed and Remanded: The administrative law judge (ALJ) correctly
determined that claimant did not suffer from a disability that would
allow him to obtain disability and supplemental Social Security
income benefits because the claimant could still perform light work
and jobs existed in the national economy that he could perform. But
the ALJ erred by failing to consider whether claimant suffered from a
mental disability that would preclude him from working.
United States v. Seals
450 F.
App’x 769
2011
Authored
majority
Criminal Law &
Procedure
Affirmed: Defendant failed to preserve his argument that his criminal
proceedings violated the Speedy Trial Act.
Cook v. Cent. Utah
Corr. Facility
446 F.
App’x 134
2011
Authored
majority
Federal Courts;
Civil Rights
Affirmed: District court did not abuse its discretion in applying
procedural rules to dismiss plaintiff-prisoner’s 42 U.S.C. §1983 suit,
given that plaintiff failed to follow the court’s orders despite repeated
warnings.
CRS-55
Case Name
Citation
Year
Role
Subject
Holding
United States v.
Rochin
662 F.3d
1272
2011
Authored
majority
Criminal Law &
Procedure
Affirmed: Police officer did not exceed the scope of a constitutionally
permissive frisk when he removed objects (which turned out to be
drug paraphernalia) from defendant’s pockets because a reasonable
officer would have feared that the detected objects were firearms
given that the defendant was suspected of being involved in a drive-by
shooting.
United States v. CruzArellanes
442 F.
App’x 408
2011
Authored
majority
Criminal Law &
Procedure;
Federal Courts
Affirmed: District court did not abuse its discretion in denying the
defendant’s motion under 18 U.S.C. §3582(c)(2) to reduce his
sentence for illegal reentry after the Sentencing Commission
amended the U.S. Sentencing Guidelines to discuss when a court may
opt to consider imposing a lesser sentence for reentry based on the
defendant’s cultural assimilation, as that amendment did not qualify
for a potential sentence reduction under §3582(c)(2).
Pennington v. Uinta
Cty.
442 F.
App’x 409
2011
Authored
majority
Civil Rights; Civil
Liability
Affirmed: The record contained no evidence that the sheriff or county
were aware that a prison guard who sexually assaulted an inmate
posed a danger of sexually assaulting inmates, and thus they could not
be held civilly liable.
Stine v. Davis
442 F.
App’x 405
2011
Authored
majority
Criminal Law &
Procedure
Affirmed: Petitioner could not pursue a habeas petition under 28
U.S.C. §2241 for when a 28 U.S.C. §2255 motion was inadequate or
ineffective to test the legality of his detention; the petitioner could
have raised his argument that his prior escape convictions did not
merit a career-offender enhancement when he filed his initial §2255
motion.
Elkins v. Astrue
442 F.
App’x 406
2011
Authored
majority
Administrative
Law; Public
Benefits
Affirmed: Administrative law judge (ALJ) did not err in denying Social
Security disability benefits because the ALJ permissibly gave the
claimant’s treating physician’s testimony little weight and did not find
the claimant’s testimony credible about the severity of her
impairments.
Carrera v. Tyson
Foods, Inc.
449 F.
App’x 753
2011
Authored
majority
Civil Rights;
Labor &
Employment
Affirmed: Plaintiff could not succeed on a hostile-work environment
claim under Title VII of the Civil Rights Act because her employer
took remedial and preventative actions reasonably calculated to end
the harassment.
CRS-56
Case Name
Citation
Year
Role
Subject
Holding
Bork v. Carroll
449 F.
App’x 719
2011
Authored
majority
Federal Courts
Affirmed: District court correctly dismissed the lawsuit by a member
of the U.S. Army Reserve challenging personnel decisions made by
his sergeant, superior officers, and the Secretary of Defense for lack
of subject matter jurisdiction because of the government’s sovereign
immunity.
Almond v. Unified Sch.
Dist. #501
665 F.3d
1174
2011
Authored
majority
Civil Rights;
Labor &
Employment
Affirmed: Plaintiffs’ claims under the Age Discrimination Employment
Act were untimely, and plaintiffs also could not take advantage of the
Ledbetter Act’s more generous claim accrual rules, because the
Ledbetter Act applies only to claims alleging actual discrimination in
compensation (i.e., unequal pay for equal work), not any instance of
discrimination that merely relates to compensation in some way.
Lopez-Fisher v. Abbot
Labs.
441 F.
App’x 602
2011
Authored
majority
Civil Rights
Affirmed: Summary judgment on plaintiff’s claims of discrimination was
proper because there was no evidence that the reason offered for
her termination (poor performance) was pretextual, given the
circuit’s presumption that when an employee is hired and fired by the
same person within a short time span, the firing decision isn’t
motivated by discrimination.
TW Telecom Holdings
Inc. v. Carolina
Internet Ltd.
661 F.3d
495
2011
Authored
majority
Bankruptcy
Appeal stayed: Circuit precedent was overruled to join the majority of
circuits in holding that §262 of the Bankruptcy Code automatically
stays the continuation of judicial proceedings against a debtor when
the proceedings were initiated before the filing of a bankruptcy
petition, and there is no exception for the debtor to pursue an
appeal even if it is an appeal from a creditor’s judgment against the
debtor.
United States v. Soto
660 F.3d
1264
2011
Authored
majority
Criminal Law &
Procedure
Affirmed: District court’s finding that defendant lied during his hearing
to withdraw his guilty plea was not clearly erroneous. Based on that
finding, the court also did not err when calculating the recommended
sentence under the U.S. Sentencing Guidelines
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