6th Cir. Published Decisions for Week of May 14-18, 2007 (2 Ky Cases)

 

Opinion	Pub Date	Short Title/District
07a0171p.06	2007/05/14	Valentine v. USA     Western District of Michigan at Grand Rapids CRIMINAL: SENTENCING COOK, Circuit Judge. Jimmy Ray and Kenneth Valentine were convicted of conspiring to possess and distribute cocaine powder and crack cocaine. They now raise numerous challenges to their convictions pursuant to 28 U.S.C. § 2255. The Valentines, jointly and severally, make a number of arguments based on United States v. Booker, 543 U.S. 220 (2005). Largely for reasons this court articulated in Humphress v. United States, 398 F.3d 855 (6th Cir. 2005), these claims fail. Petitioners also make a number of ineffective-assistance claims, all but one of which lack merit. On that ground, we reverse and hold that Jimmy Ray Valentine is entitled to an evidentiary hearing to determine whether his trial counsel thwarted his efforts to accept a plea bargain. We affirm the district court on all other grounds.
07a0172p.06	2007/05/15	Mitchell v. McNeil     Western District of Tennessee at Memphis SUBSTANTIVE DUE PROCESS SUTTON, Circuit Judge. At the heart of this dispute is the claim that the City of Memphis, several of its agencies and several of its police officers violated the substantive due process rights of Daniel Mitchell when they permitted a police officer to loan a personal vehicle to an informant who subsequently collided with—and killed—Mitchell while driving the vehicle. The district court concluded that the allegations did not state a cognizable substantive due process claim, and we agree.
07a0173p.06	2007/05/15	NetJets Aviation v. Intl Brotherhood     Southern District of Ohio at Columbus LABOR LAW:  Discharge pilot ROGERS, Circuit Judge. This case arises from NetJets’ discharge of a pilot employed by the company. The pilot’s employment was terminated after NetJets learned that he had made a video depicting a pilot shooting a rifle at a DVD produced by NetJets that promoted a tentative agreement between NetJets and its pilots’ union. The union grieved the termination, and the System Board of Adjustment (“the Board”) ordered NetJets to reinstate the pilot. NetJets sought an order from the district court vacating the award, arguing that the award violated public policy. The district court held that public policy review is not permitted under the Railway Labor Act (“RLA”) and enforced the award. We affirm on the alternative ground that, assuming without deciding that public policy review is permitted under the RLA, the award at issue does not violate any public policy that conceivably could warrant vacating an RLA arbitration award. For the foregoing reasons, the judgment of the district court denying NetJets’ motion for summary judgment and granting summary judgment to the union is AFFIRMED.
07a0174p.06	2007/05/15	Henley v. Bell     Middle District of Tennessee at Nashville CRIMINAL: COOK, Circuit Judge. Petitioner Steve Henley was convicted of two counts of murder and aggravated arson in violation of Tennessee law and was sentenced to death. He filed a petition for habeas corpus that alleged twenty-one errors in the state-court proceedings. The district court denied the petition, but granted a Certificate of Appealability (COA) as to one issue, and we permitted Henley to expand the COA to include five additional claims. For the reasons set forth below, we affirm the judgment of the district court.
07a0175p.06	2007/05/15	USA v. Borho     Western District of Kentucky at Louisville CRIMINAL: SENTENCING RONALD LEE GILMAN, Circuit Judge. Norman Borho pled guilty to three counts of distributing child pornography in interstate commerce, in violation of 18 U.S.C. § 2252(a)(1), and to one count of receiving child pornography that had traveled in interstate commerce, in violation of 18 U.S.C. § 2252(a)(2). The applicable United States Sentencing Guidelines called for a sentence of between 210 and 262 months of imprisonment, but the district court imposed a sentence of only 72 months. On appeal, the government argues that the sentence should be vacated and remanded for resentencing because such a large downward variance from the Guidelines range in this case is substantively unreasonable. We agree. The judgment of the district court is therefore VACATED and REMANDED for resentencing for the reasons set forth below.
07a0176p.06	2007/05/15	Bach v. First Union Natl Bk     Southern District of Ohio at Dayton FAIR  CREDIT REPORTING ACT REMITTITUR JULIA SMITH GIBBONS, Circuit Judge. Following trial, a jury determined that defendant-appellant First Union National Bank (FUNB) breached certain provisions of the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681-1681x, and awarded $400,000 in compensatory damages and $2,628,600 in punitive damages to plaintiff-appellee, Dorothy Bach. FUNB appealed, claiming, among other things, that the punitive damages award was excessive and in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We agreed and accordingly remanded to the district court for either remittitur or a new trial on punitive damages. The district court offered Bach the choice between a $400,000 reduction in the punitive damages award or a new trial, and Bach chose the former. FUNB appealed. For the reasons below, we reverse the judgment of the district court and direct it to enter an order of remittitur not to exceed $400,000 in punitive damages.
07a0177p.06	2007/05/16	Cooper v. Life Ins Co     Eastern District of Tennessee at Chattanooga ERISA:  DISABILITY BENEFITS RONALD LEE GILMAN, Circuit Judge. Becky Cooper appeals from an adverse judgment in her suit for long-term disability insurance benefits. Her employer’s plan is subject to the provisions of the Employee Retirement and Income Security Act (ERISA). Because we conclude that the decision of Life Insurance Company of North America (LINA), the plan administrator, to deny long-term disability benefits to Cooper was arbitrary and capricious, we REVERSE the judgment of the district court and REMAND the case for entry of an order requiring LINA to award benefits retroactive to the date on which Cooper’s short-term disability benefits ceased, and for such incidental relief as the district court may find appropriate in light of our decision.
07a0178a.06	2007/05/17	Foley v. Parker     Eastern District of Kentucky at London HABEAS CORPUS: DEATH PENALTY COOK, Circuit Judge. Petitioner Robert Carl Foley was convicted of murder in Kentucky and sentenced to death. After a lengthy appellate process in the Kentucky courts, Foley filed a habeas petition raising thirty-six separate grounds for relief. The district court reviewed and denied each one, but granted a Certificate of Appealability (COA) as to four of Foley’s claims. Upon Foley’s request, we expanded the COA to include a fifth claim. For the reasons set forth below, we affirm the district court’s judgment.
07a0179p.06	2007/05/17	Garcia v. Andrews     Northern District of Ohio at Cleveland NEW TRIAL: JUROR MISCONDUCT RONALD LEE GILMAN, Circuit Judge. Angela Garcia was convicted in an Ohio state court of aggravated murder, aggravated arson, and insurance fraud in connection with the deaths of her two young daughters as a result of a fire that she set in her home in order to collect insurance proceeds. She was sentenced to life imprisonment with the possibility of parole after 20 years.  After exhausting her direct appeals in state court, Garcia petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising seven assignments of error. The district court denied the petition, but granted a Certificate of Appealability on the issue of whether the trial court’s failure to investigate Garcia’s allegations of juror misconduct warranted a new trial. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0180p.06	2007/05/18	Mapouya v. Gonzales     Board of Immigration Appeals IMMIGRATION DAN AARON POLSTER, District Judge. Blaise Mapouya petitions for judicial review of an order rendered by the Board of Immigration Appeals (“BIA”) denying his application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment of Punishment (“The Convention” or “Convention”). For the reasons set forth below, we VACATE and REMAND this case to the BIA for further proceedings.
07a0181p.06	2007/05/18	USA v. Arnold     Western District of Tennessee at Memphis CRIMINAL:  CONFRONTRATION CLAUSE SUTTON, Circuit Judge. Joseph Arnold challenges his felon-in-possession-of-a-firearm conviction, contending that the evidence does not support the verdict, that the district court violated his Confrontation Clause rights by admitting testimonial hearsay and that the district court made several erroneous evidentiary rulings during the course of the trial. We affirm.
07a0182p.06	2007/05/18	Bachman v. Bagley     Northern District of Ohio at Akron HABEAS CORPUS: UNTIMELY McKEAGUE, Circuit Judge. Ronald Dale Bachman appeals the district court’s decision that his petition for a writ of habeas corpus was untimely, arguing that his adjudication as a sexual predator under Ohio law effectively reopened the judgment against him and restarted the statute of limitations period. For the reasons that follow, we affirm.
07a0183p.06	2007/05/18	Durr v. Mitchell     Northern District of Ohio at Cleveland HABEAS CORPUS SUHRHEINRICH, Circuit Judge. Petitioner-Appellant Darryl Durr, an Ohio death row inmate, appeals from the order of the United States District Court for the Northern District of Ohio, Eastern Division, denying his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. On appeal, Durr challenges the district court’s: (1) procedural default rulings; (2) denial of his Sixth Amendment claim that the trial court failed to appoint an independent psychologist; (3) denial of his ineffective assistance of counsel claim; and (4) denial of the sufficiency of evidence claim. For the reasons that follow, we AFFIRM the opinion of the district court denying Durr’s petition for a writ of habeas corpus.