Sixth Circuit Cases

6th Circuit Published Decisions for Week of Apr. 23-27, 2007 (One Ky. Decision)

 

Opinion	Pub Date	Short Title/District
07a0144p.06	2007/04/23	USA v. Esteppe     Eastern District of Kentucky at Covington CRIMINAL: SENTENCING RONALD LEE GILMAN, Circuit Judge. Tracey Scott Esteppe pled guilty to a charge of armed bank robbery in May of 2005. Based on his prior convictions for escaping from prison and for burglary, Esteppe’s Presentence Report (PSR) concluded that he qualified as a career offender under the Sentencing Guidelines. Esteppe objected to the career-offender sentence enhancement on the ground that his prior escape and burglaries were all related and therefore constituted just one predicate offense. The district court disagreed and sentenced Esteppe to 188 months of imprisonment, the low end of Esteppe’s enhanced Sentencing Guidelines range. On appeal, Esteppe reasserts his objection to the career-offender enhancement. He also argues that his sentence was unreasonable because the district court did not properly analyze all of the factors set forth in 18 U.S.C. § 3553(a). For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0145p.06	2007/04/24	Ege v. Yukins     Eastern District of Michigan at Bay City HABEAS CORPUS SOL BOYCE F. MARTIN, JR., Circuit Judge. On July 22, 2005, the district court granted Carol Ege’s petition for a conditional writ of habeas corpus on grounds that (1) admission of bite-mark evidence at Ege’s state trial violated her right under the Due Process Clause to a fair trial, and (2) the performance of Ege’s state trial counsel was unconstitutionally deficient and caused her actual prejudice. The State appeals the district court judgment on both grounds, and argues additionally that Ege’s habeas petition is time-barred under the one-year limitations period of 28 U.S.C.§ 2244(d)(1). For the following reasons, we AFFIRM in part and REVERSE in part the judgment of the district court.
07a0146p.06	2007/04/23	Cooey (Filiaggi) v. Strickland     Southern District of Ohio at Columbus CRIMINAL:  STAY OF EXECUTION ALICE M. BATCHELDER, Circuit Judge. Ohio inmate James J. Filiaggi is scheduled to be executed on Tuesday, April 24, 2007. On Thursday, April 19, 2007, Filiaggi filed a motion to intervene in Richard Cooey’s civil suit challenging Ohio’s lethal injection protocol. On Friday, April 20, 2007, Filiaggi filed an emergency motion for a preliminary injunction, or an order under the All Writs Act, 28 U.S.C. § 165l(a), staying his execution. On Monday, April 23, 2007, the district court denied Filiaggi’s motion to intervene and denied as moot his motion for injunctive relief. Filiaggi immediately filed both a notice of appeal from the district court’s order and an emergency motion for stay of execution to permit him to pursue that appeal. Filiaggi seeks an order from this Court staying his execution so that he may continue his quest to intervene in Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007), by appealing the district court’s order denying his motion to intervene in that case. * * * We have carefully reviewed the law and the facts underlying Filiaggi’s motion to intervene and for a stay of execution, the district court’s Opinion and Order denying the motion, and the briefs of Filiaggi and the State with regard to Filiaggi’s Emergency Motion. We conclude that, for the reasons stated by the district court, Filiaggi has not demonstrated any likelihood that he could succeed on the merits of his motion to intervene. Further, we conclude that because Filiaggi has not demonstrated a likelihood of success with regard to his attempt to intervene, and in light of the State’s strong interest in proceeding with its judgment and the patent untimeliness of Filiaggi’s motion, he has not demonstrated any basis upon which this court should exercise its equitable power to stay his execution. See Nelson v. Campbell, 541 U.S. 637, 649-50 (2004). Accordingly, the Emergency Motion for Stay of Execution is DENIED.
07a0147p.06	2007/04/26	Freightliner v. DaimlerChrysler Vans     Eastern District of Tennessee at Knoxville CIVIL PROCEDURE:  Failure to state a claim BOYCE F. MARTIN, JR., Circuit Judge. Plaintiffs appeal from the district court’s dismissal of their claims under Fed. R. Civ. P. 12(b)(6). For the reasons outlined below, we AFFIRM in part and REVERSE in part. FOK now only requests that we review the following two aspects of its original claims, both of which are directed solely at DC Vans, not at FLLC: (1) whether it was proper for the district court to dismiss FOK’s claims under the Tennessee Trade Practices Act, Tenn. Code Ann. §§ 47-25-1301 to 1314; and (2) whether it was proper for the district court to dismiss FOK’s claims under the federal Robinson-Patman Act, 15 U.S.C. §§ 13 (d) and (e).
07a0148p.06	2007/04/27	Allison v. East Lansing     Western District of Michigan at Lansing 42 U.S.C. § 1983 SILER, Circuit Judge. Seven Michigan State University (“MSU”) employees (“Plaintiffs”) sued the City of East Lansing (“City”) under 42 U.S.C. § 1983 for Fourth Amendment violations that occurred during the East Lansing Fire Department’s (“ELFD”) response to a possible anthrax contamination at MSU. Following a jury trial, a verdict was returned in favor of the Plaintiffs. On appeal, the City asks us to overturn the jury verdict and grant judgment in its favor as a matter of law. Because the City failed to preserve its sufficiency-of-the-evidence challenge, we dismiss.

 

Sixth Circuit Holds that TILA Recission Claims are Not Maintainable as Class Actions

Sixth Circuit Holds that TILA Recission Claims are Not Maintainable as Class Actions from Federal Civil Rules Bulletin

Sixth Circuit Holds Administrative Costs Chargeable Only to Parties and Not their Counsel Under Rule 54(d)(1)

Sixth Circuit Holds Administrative Costs Chargeable Only to Parties and Not their Counsel Under Rule 54(d)(1) from the Federal Civil Practice Bulletin Blog.

6th Circuit Published Decisions for Week of Apr. 16-20, 2007

Opinion	Pub Date	Short Title/District
07a0137p.06	2007/04/16	Bouggess v. Mattingly     Western District of Kentucky at Louisville CIVIL RIGHTS 1983; IMMUNITY; SUMMARY JUDGMENT BOGGS, Chief Judge. This civil rights case stems from the shooting death of Michael Newby by Officer McKenzie Mattingly in West Louisville. It comes before us on an interlocutory appeal from the district court’s denial of the appellant’s motion for summary judgment on qualified immunity and state-law immunity grounds. Before the district court, Angela Bouggess, the administrator of Newby’s estate, raised a Fourth Amendment claim under 42 U.S.C. § 1983 and various state-law tort claims. To decide this case, we need only ask whether an officer who employs deadly force against a fleeing suspect without reason to believe that the suspect is armed or otherwise poses a serious risk of physical harm is entitled to either qualified immunity or immunity under the law of Kentucky. We hold that he is entitled to neither. Accordingly, we affirm the judgment of the district court.
07a0138p.06	2007/04/19	Cookeville v. Upper Cumberland     Middle District of Tennessee at Cookeville ANNEXATION; PUBLIC UTILITIES ROGERS, Circuit Judge. In this case, we affirm the federal district court’s resolution of a dispute over one element of the compensation that Tennessee law requires when a city annexes territory and exercises its right to purchase electric utility property within the annexed territory. The federal court had jurisdiction because a federal agency, the Rural Utilities Service (“RUS”), was a party defendant. We reverse, however, a post-judgment order enjoining the city from providing electric service in this annexed area pending resolution of the compensation dispute.
07a0139p.06	2007/04/19	Revis v. Meldrum     Eastern District of Tennessee at Knoxville CIVIL RIGHTS 1983:  Judgment execution RONALD LEE GILMAN, Circuit Judge. Laschinski T. Emerson obtained a money judgment in a sexual-harassment lawsuit from a Tennessee trial court against her former employer Nathaniel Revis and his company, Oak Ridge Research, Inc. (ORRI). Revis appealed, but failed to post an appeal bond. Emerson subsequently sought and obtained two writs of execution for Revis’s real and personal property in Roane County, Tennessee to satisfy the judgment. Roane County Deputy Sheriff Larry Eaton, accompanied by Tracy Waldo, a paralegal from the law firm representing Emerson, appeared at Revis’s house to serve the writs. Under Eaton’s direction, private contractors seized Revis’s personal property and changed the locks on his residence. Deputy Eaton also ordered Revis to leave the residence and inquired about any cash that Revis was carrying on his person. Revis filed suit pursuant to 42 U.S.C. § 1983 against the persons and entities involved in executing the writs, alleging that the seizure of his residence and the search of his person pursuant to the writs violated his constitutional rights. The district court granted summary judgment to some of the defendants, dismissed all claims against the rest, and further ordered Revis to pay the private party defendants’ costs of litigation. For the reasons set forth below, we AFFIRM in part, VACATE in part, and REMAND the case for further proceedings consistent with this opinion.
07a0140p.06	2007/04/19	Sarr v. Gonzales     Board of Immigration Appeals IMMIGRATION
07a0141p.06	2007/04/20	USA v. Graham     Eastern District of Michigan at Detroit CRIMINAL:  BRADY RULE ROGERS, Circuit Judge. The criminal defendants in this appeal contend that the failure of the Government’s cooperating witness to produce fifteen boxes of evidence until late in the trial constituted a violation of Brady v. Maryland, 373 U.S. 83 (1963). Defendants Kenneth Graham and Kyle Dresbach were convicted of conspiracy to commit mail fraud and to file false tax returns, conspiracy to commit money laundering, money laundering, and subscribing false tax returns. These charges were based on a kickback scheme in which the defendants caused Thyssen, Inc., a steel processing company, to overpay for equipment while a portion of the amount fraudulently charged was funneled back to the defendants through shell entities created by their attorney, Jerome Allen. Allen was an unindicted co-conspirator who acted as a cooperating witness for the Government pursuant to a plea agreement. Near the end of the defendants’ trial, Allen produced fifteen boxes of documents, some of which pertained to his representation of Graham. Graham and Dresbach argue that the district court erred by failing to find that the Government violated its obligations under Brady by not causing these documents to be produced earlier. The Government responds that these documents were not material under Brady and that there was no violation of Brady because the evidence was in the exclusive control of a cooperating witness and not the Government. Dresbach also raises issues involving alleged ineffective assistance of counsel, improper failure to sever the two cases, and error in the giving of a supplemental jury instruction after the jury had indicated that it had reached a verdict. Because the cooperating witness here was not acting on behalf of the Government, and the defendants’ other contentions do not warrant reversal, the convictions of both defendants are affirmed.
07a0141p.06	2007/04/20	USA v. Dresbach     Eastern District of Michigan at Detroit See USA v. Graham above, co-defendant.
07a0142p.06	2007/04/20	USA v. Kakos     Eastern District of Michigan at Detroit CRIMINAL:  Duplicity pleading CLAY, Circuit Judge. Defendant Frederick Kakos appeals his conviction for the interstate receipt of stolen property pursuant to 18 U.S.C. § 2315. Defendant was charged, in a single count indictment, with knowingly receiving a stolen trailer and the stolen meat contained within that trailer. On appeal, Defendant argues that the indictment was duplicitous, thereby compromising his right to a unanimous jury verdict, and that the district court committed plain error by failing to give the jury a special unanimity instruction which would have eliminated any such prejudice. For the reasons that follow, we AFFIRM Defendant’s conviction.
07a0143p.06	2007/04/20	West v. AK Steel Corporation     Southern District of Ohio at Cincinnati ERISA RETIREMENT PLAN RONALD LEE GILMAN, Circuit Judge. This is a class action lawsuit brought by early retirees in the AK Steel Corporation Retirement Accumulation Pension Plan (AK Steel Plan) who elected to receive their pension benefits under the Plan in the form of a lump-sum payment. The AK Steel Plan is a cash balance plan specifying that participants can elect to receive a lump sum equal to their “account balance” at the termination of employment rather than having to wait until they reach the normal retirement age of 65. According to the plaintiffs, the AK Steel plan’s failure to use what is known as the “whipsaw calculation” when determining the value of the lump-sum distributions for these early retirees caused a forfeiture of benefits in violation of the Employment Retirement Income Security Act (ERISA). The district court, in April of 2004, granted partial summary judgment in favor of the plaintiffs on the issue of liability. A year and a half later, the district court awarded the plaintiffs over $37 million in damages and more than $9 million in prejudgment interest. AK Steel timely appealed. For the reasons set forth below, we AFFIRM the judgment of the district court.

Sixth Circuit Notes Split Re Whether Deadline for Filing Motion to Reopen Immigration Hearings May be Equitably Estopped

Sixth Circuit Notes Split Re Whether Deadline for Filing Motion to Reopen Immigration Hearings May be Equitably Estopped from Split Circuits Blog

Sixth Circuit Weighs in On Circuit Split Re: Employer Fee Liability Under 33 U.S.C. § 928(b)

Sixth Circuit Weighs in On Circuit Split Re: Employer Fee Liability Under 33 U.S.C. § 928(b) from Split Decisions Blog

6th Circuit Published Decisions for Week of Apr. 8-12, 2007 (THREE Case)

Opinion	Pub Date	Short Title/District
07a0130p.06	2007/04/09	Smith v. Comm Social Security     Western District of Michigan at Grand Rapids SOCIAL SECURITY: COOK, Circuit Judge. Valerie Smith challenges the denial of disability insurance benefits to her by the Social Security Administration (SSA), contending that its decision neither complied with the treating source regulation nor was supported by substantial evidence. We disagree with these contentions and affirm.
07a0131p.06	2007/04/11	USA v. Franco     Eastern District of Michigan at Detroit CRIMINAL: BOOKER BOYCE F. MARTIN, JR., Circuit Judge. Defendant Ernesto Franco was convicted and sentenced for possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). On appeal, he challenges the district court’s admission of “other acts” evidence introduced by the government to rebut his entrapment defense, as well as the district court’s restriction of his crossexamination of a government witness. In addition, he claims that he received ineffective assistance of counsel based on two alleged errors by trial counsel. Franco also argues that his conviction and sentence must be reversed because (1) there was insufficient evidence to support a finding that he possessed with intent to distribute nine kilograms of cocaine, and (2) the jury did not determine the type and quantity of drugs he was found to possess with intent to distribute. Finally, he requests that he be resentenced pursuant to the Supreme Court’s decision in United States v. Booker. For the reasons below, we AFFIRM Franco’s conviction, but VACATE his sentence and REMAND for the limited purpose of resentencing in light of Booker.
07a0132p.06	2007/04/12	Wenner v. Sun Life Assurance     Middle District of Tennessee at Nashville ERISA: OBERDORFER, District Judge. Thomas Wenner was the Chief Operating Officer of Orchid Manufacturing Group (“Orchid”) when he suffered a heart attack. He sought disability benefits from Sun Life Assurance Company of Canada (“Sun Life”) under his employer’s disability benefits plan and, for a time, received them. In 2003, Sun Life discontinued the benefits, having determined that Wenner was no longer disabled. Wenner challenged Sun Life’s decision in state and then federal court. He argued, inter alia, that Sun Life failed to notify him of the specific reasons for its decision as required by the Employee Retirement Income Security Act of 1974 (ERISA). The district court rejected Sun Life’s decision for a different reason. It concluded that Sun Life’s determination that Wenner was no longer disabled was arbitrary and capricious and unsupported by the administrative record. Although we do not necessarily agree with that determination, we will affirm the district court’s judgment on the separate ground that Sun Life violated the notice requirements of ERISA.
07a0133p.06	2007/04/12	Macy v. Hopkins Cnty School     Western District of Kentucky at Owensboro RETALIATORY DISCHARGE KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Sharon Macy (“Macy”) appeals the district court’s order granting summary judgment to Defendant-Appellee Hopkins County School Board of Education (“the Board”). Macy alleged that the Board violated federal and state law by firing her because she was disabled and in retaliation for protected activities. The Board asserted that Macy was fired for threatening students and making inappropriate remarks about the students and their families, and that this was the latest in a series of incidents of misconduct. The district court granted the Board’s motion for summary judgment, concluding that Macy had not introduced direct or circumstantial evidence sufficient for a jury to find that she was fired because of her disability or in retaliation for protected activities. Because Macy has not presented evidencefrom which a reasonable jury could conclude that the Board’s proffered reason for firing her was pretextual, and because Macy has forfeited her retaliation claims and state-law claims, we AFFIRM the judgment of the district court.
07a0134p.06	2007/04/12	USA v. Graham     Southern District of Ohio at Dayton SEARCH AND SEIZURE BOYCE F. MARTIN, JR., Circuit Judge. Defendant Anthony Graham was charged with being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The firearm upon which this prosecution was based was found during a Terry search by an officer of the Dayton Police Department. Graham argues that this firearm, as well as statements made after its seizure, should be suppressed because the officer did not possess reasonable suspicion to conduct the search. For the reasons below, we affirm the district court’s denial of Graham’s motion to suppress.
07a0135p.06	2007/4/13	USA v. Cohen     Western District of Kentucky at Louisville SEARCH AND SEIZURE KAREN NELSON MOORE, Circuit Judge. The United States appeals the district court’s order granting Defendant-Appellee Demetrius Cohen’s (“Cohen”) motion to suppress. Cohen is charged with one count of being a felon in possession of ammunition and one count of being a felon in possession of a firearm, based on ammunition and a firearm that were found by police officers in a search of his car. The district court concluded that the officers did not have reasonable suspicion to stop Cohen’s car and suppressed the evidence that was found during the subsequent search, bringing the proceedings below to a halt while the government filed this interlocutory appeal. Because the stop of Cohen’s car was not supported by reasonable suspicion, we AFFIRM the determination of the district court and REMAND the case for further proceedings consistent with this opinion.
07a0136p.06	2007/4/13	Littriello v. USA     Western District of Kentucky at Louisville IRS: check the box regulation and LLC's MARTHA CRAIG DAUGHTREY, Circuit Judge. In this appeal from a grant of summary judgment to the government, we are presented with a case of first impression regarding the validity of the Treasury Department’s so-called “check-the-box” regulations, 26 C.F.R. §§ 301.7701-1 to 301.7701-3, promulgated in 1996 to simplify the classification of business entities for tax purposes. The plaintiff, Frank Littriello, was the sole owner of several Kentucky limited liability companies (LLCs), the operation of which resulted in unpaid federal employment taxes totaling $1,077,000. Because Littriello was the sole member of the LLCs and had not elected to have the businesses treated as “associations” (i.e., corporations) under Treasury Regulations §§ 301.7701-3(a) and (c), the LLCs were “disregarded” as separate taxable entities and, instead, were treated for federal tax purposes as sole proprietorships under Treasury Regulation § 301.7701-3(b)(1)(ii). When Littriello, as sole proprietor, failed to pay the outstanding employment taxes, the IRS filed notices of determination and, eventually, notified him of its intent to levy on his property to enforce previously filed tax liens. Littriello responded by initiating complaints for judicial review in district court, contending that the regulations in question (1) exceed the authority of the Treasury to issue regulatory interpretations of the Internal Revenue Code; (2) conflict with the principles enunciated by the Supreme Court in Morrissey v. Commissioner, 296 U.S. 344 (1935); and (3) disregard the separate existence of an LLC under Kentucky state law. He also argued in his motion for summary judgment that the regulations are not applicable to employment taxes. After the cases were consolidated for disposition, the district court held that the “check-the-box regulations” are “a reasonable response to the changes in the state law industry of business formation,” upheld them under Chevron1 analysis, and held that the plaintiff was individually liable for the employment taxes at issue. We conclude that the district court’s analysis was correct and affirm.

E.D. Michigan Notes Split Re: Whether “Class of One” Claims Should be Allowed in the Employment Context

E.D. Michigan Notes Split Re: Whether “Class of One” Claims Should be Allowed in the Employment Context from Split Circuits Blog

6th Cir. Sides with 8th Cir. in Holding that Carrying a Concealed Weapon Does Not Qualify as a “Violent Felony” Under the Armed Career Criminal Act

6th Cir. Sides with 8th Cir. in Holding that Carrying a Concealed Weapon Does Not Qualify as a “Violent Felony” Under the Armed Career Criminal Act from Split Circuits Blog

6th Cir. Published Decisions for Week of Apr. 2 - 6, 2007 (No Ky Decisions)

Opinion	Pub Date	Short Title/District
07a0119p.06	2007/04/02	Humphrey v. Mabry     Southern District of Ohio at Columbus OBERDORFER, District Judge. This civil rights action, brought under 42 U.S.C. § 1983, arises out of a traffic stop, forcible seizure at gun point, search and brief restraint of the plaintiff, who was driving a car mistakenly identified by Columbus, Ohio police officers as a wanted car driven by a dangerous, gun-bearing suspect. The plaintiff’s complaint alleges that three Columbus police officers and the City of Columbus are liable for violating his constitutional rights, specifically the Fourth Amendment’s prohibition against unreasonable seizures and the use of excessive force.  We conclude that Humphrey’s complaint sufficiently alleges, and a reasonable jury could find, that Columbus police officers did violate his Fourth Amendment rights. But we also conclude that, because a reasonable officer in the shoes of the individual officer defendants, in the particular circumstances here, could have reasonably believed that his actions were constitutional, we REVERSE the denial of qualified immunity for the three individual officer defendants and REMAND for further proceedings consistent with this opinion.
07a0120p.06	2007/04/03	Okoro v. Hemingway     Eastern District of Michigan at Detroit BOYCE F. MARTIN, JR., Circuit Judge. Ralphael Okoro, proceeding pro se, appeals a district court order denying his motion for relief from judgment filed pursuant to Fed. R. Civ. P. 60(b). This case has been referred to a panel of this Court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a). Okoro is an inmate housed at the Federal Correctional Institution in Milan, Michigan. In January, 2005, he filed a “mandamus complaint” against various prison officials, alleging that his constitutional rights had been violated by the defendants’ enforcement of a policy that declared court documents to be contraband and required immediate destruction of such documents....
07a0121p.06	2007/04/03	Center Const. Co. v. NLRB     National Labor Relations Board Agency JOHN R. GIBSON, Circuit Judge. Center Construction Co. petitions for review of the National Labor Relations Board’s order finding Center committed numerous unfair labor practices to combat the organization of Center’s two-man plumbing staff by Local 370 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO. Local 370 intervened to oppose Center’s petition and also petitions for review of the one claim on which the Board reversed the ALJ, finding Center had not committed an unfair labor practice. The Board cross-petitions for enforcement. We deny Center’s petition for review, grant Local 370’s petition, and grant the Board’s petition for enforcement except insofar as the Board held that Center had not committed an unfair labor practice in threatening the sheet metal workers with loss of jobs.
07a0122p.06	2007/04/03	Riley v. Berghuis     Eastern District of Michigan at Detroit R. GUY COLE, JR., Circuit Judge. In 1998, Petitioner-Appellee Robert Riley was convicted in Michigan state court of aiding and abetting the felony murder of Mark Seaton, and sentenced to life in prison without parole. On direct appeal, Riley argued that he was deprived of the effective assistance of counsel because his trial attorney failed to move for a directed verdict of acquittal at the close of the State’s case-in-chief. The Michigan Supreme Court rejected Riley’s claim, holding that Riley’s counsel was not deficient within the meaning of Strickland v. Washington, 466 U.S. 668 (1984), for failing to move for a directed verdict, because the evidence adduced by the State was sufficient to support Riley’s conviction. Thereafter, Riley filed a petition for a writ of habeas corpus in the district court. The district court granted the petition, concluding that the Michigan Supreme Court unreasonably applied the Strickland test to the facts of Riley’s case. For the reasons set forth below, we REVERSE the judgment of the district court.
07a0123p.06	2007/04/03	Rochow v. Life Ins Co     Eastern District of Michigan at Detroit OBERDORFER, District Judge. Daniel Rochow, the former President of Arthur J. Gallagher & Co. (“Gallagher”), currently suffers from HSV-Encephalitis, a rare and severely debilitating disease. The question in this case is whether or not the insurer, Life Insurance Company of North America (“LINA”) acted arbitrarily and capriciously when it concluded that Rochow was not disabled on the date that he left his job, therefore denying his claim for disability benefits. The district court held that LINA’s determination was arbitrary and capricious and unsupported by the administrative record. For the reasons hereinafter stated, we AFFIRM that decision.
07a0124p.06	2007/04/05	Cress v. Palmer     Western District of Michigan at Lansing MARTHA CRAIG DAUGHTREY, Circuit Judge. The petitioner, Thomas Cress, is a Michigan state prisoner serving a life sentence for first-degree felony murder. He appeals from the district court’s order dismissing his second habeas petition, filed pursuant to 28 U.S.C. § 2254. The petitioner contends that his due process rights were violated when (1) physical evidence related to his case was destroyed after his appeals were completed, (2) the state post-conviction court rejected as incredible the recantation evidence that he proffered, and (3) the state post-conviction court did not grant him relief based on evidence indicating his innocence. The district court denied relief onthe merits. Because the record establishes that the etitioner’s claims are not cognizable on habeas review, we conclude that the district court should have dismissed the petition for lack of jurisdiction, and we therefore affirm the order of dismissal, but for a different reason from that given by the district court.
07a0125p.06	2007/04/05	Tapia-Martinez v. Gonzales     Board of Immigration Appeals SUHRHEINRICH, Circuit Judge. Petitioner, Dolores Tapia-Martinez, seeks judicial review of a decision of the Board of Immigration Appeals (“BIA”), denying her second motion to reopen as numerically barred under 8 C.F.R. § 1–3.2(c)(2). Petitioner asserts that because her second motion to reopen is based on ineffective assistance of counsel, equitable tolling should apply. Petitioner also argues that review by a three-member panel pursuant to 8 C.F.R. § 1003.1(e)(6)(v) is warranted. We AFFIRM
07a0126p.06	2007/04/06	USA v. Nance     Western District of Tennessee at Jackson JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Richard Nance was convicted by a jury of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The district court determined that Nance was an armed career criminal and sentenced him to 235 months, which was at the bottom of the advisory guidelines range. Nance appeals his conviction and sentence. For the following reasons, we affirm the district court’s judgment.
07a0127p.06	2007/04/06	Nields v. Bradshaw     Southern District of Ohio at Cincinnati RONALD LEE GILMAN, Circuit Judge. In 1997, an Ohio jury convicted Richard Nields of aggravated murder with prior calculation and design, aggravated felony murder, and aggravated robbery. At the conclusion of the penalty phase, the state trial court imposed the jury’s recommended sentence of death. Nields appealed, but both the Ohio Court of Appeals and the Ohio Supreme Court found his claims to be without merit. Subsequently, Nields filed a petition for a writ of habeas corpus in federal district court that raised 30 alleged constitutional errors in the state-court proceedings. Adopting the Report and Recommendation of the designated magistrate judge in its entirety, the district court both denied the petition and declined to certify any of Nields’s claims for appeal. This court, however, granted Nields a Certificate of Appealability (COA) as to five of his claims. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0128p.06	2007/04/06	NLRB v. Local 334     National Labor Relations Board Agency JULIA SMITH GIBBONS, Circuit Judge. The National Labor Relations Board (“NLRB” or “Board”) seeks enforcement of an order that directs Local 334, Laborers International Union of North America, AFL-CIO, (“Local 334”) and Kvaerner Songer, Inc., (“Kvaerner”) to cease and desist unfair labor practices and interference with employees’ rights under the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq. Local 334 and Kvaerner cross-petition for review of the NLRB’s order. For the following reasons, we deny Local 334’s and Kvaerner’s petitions for review and enforce the NLRB’s order.
07a0129p.06	2007/04/06	Fielden v. CSX Trans     Southern District of Ohio at Columbus ROGERS, Circuit Judge. This appeal concerns the scope of the expert report requirement of Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure. In particular, the issue is whether a plaintiff pursuing a claim under the Federal Employers Liability Act (FELA), 45 U.S.C. § 51 et seq., must file an expert report before the plaintiff’s treating physician can testify as to the cause of the plaintiff’s carpal tunnel syndrome. In this case, Jesse Fielden did not file a timely expert report from his treating physician about the cause of Fielden’s carpal tunnel syndrome. The district court held that Rule 26(a)(2)(B) required the filing of the expert report and refused to consider the treating physician’s testimony that Fielden’s use of a "plate jack" while working at CSX Transportation caused Fielden’s carpal tunnel syndrome. Without the treating physician’s testimony, there was no expert evidence that CSX Transportation caused Fielden’s injury, and the district court therefore granted summary judgment for the defendant. Because Rule 26(a)(2)(B) did not require the filing of an expert report in this case, we reverse the district court’s grant of summary judgment.