6th Cir. Published Decisions for Week of May 7-11, 2007 (2 Ky Decisions)

Opinion	Pub Date	Short Title/District
07a0161p.06	2007/05/07	USA v. Buckmaster     Northern District of Ohio at Cleveland CRIMINAL:  FIREARMS; SEARCH & SEIZURE BOYCE F. MARTIN, JR., Circuit Judge. James Buckmaster pled guilty to unlawful possession of explosives—here, commercial fireworks—in violation of 18 U.S.C. § 842(a)(3)(A), after unsuccessfully moving to suppress the explosives on grounds that they were found in his basement pursuant to an illegal search. He now appeals a single issue: the district court’s denial of his motion to suppress. For the reasons outlined below, we AFFIRM.
07a0162p.06	2007/05/07	Workman v. Bredesen     Middle District of Tennessee at Nashville CRIMINAL:  EXECUTIONS SUTTON, Circuit Judge. Philip Ray Workman is scheduled to be executed by the State of Tennessee on May 9, 2007, at 1:00 a.m., for the murder of Lieutenant Ronald Oliver. On May 4, 2007, Workman filed a motion for a temporary restraining order in federal district court, claiming that the State’s three-drug protocol for implementing the death penalty violates the Eighth (and Fourteenth) Amendment, and later that day the court granted the motion. Still later that same day, the Governor of Tennessee and the other defendants filed an appeal from that order. Early today, May 7, 2007, the Governor and others filed a 19-page motion in this court to vacate the district court’s order. A little later this morning, Workman filed a 45-page brief in response. This dispute arises from a 25-year-old capital sentence, and the district court’s order, if upheld, would be Workman’s sixth stay of an execution date set by the State over the last seven years. At no point until last Friday, May 4, 2007, did Workman challenge the State’s method of execution, even though the components of the procedure that Workman challenges today have been in existence in the main since 1998. He thus cannot escape the Supreme Court’s and this court’s limitations on dilatory challenges to an execution procedure. Workman’s prospects for success on the merits also are dim. The Supreme Court has never invalidated a State’s chosen method of execution. No court has invalidated the three-drug protocol used by Tennessee (and 29 other jurisdictions). Several state and federal courts have upheld this same three-drug protocol (including the Tennessee Supreme Court in 2005). Our court vacated a similar stay decision in 2006 with respect to a similar challenge and permitted the State to execute the inmate under the protocol. Notwithstanding the decision of the Tennessee Supreme Court in 2005 and the decision of this court in 2006, the State undertook an effort in 2007 to review and improve the procedure. Workman acknowledges that the new procedure is only slightly different from the old procedure, and he offers no explanation how Tennessee has done anything more than make the new procedure less prone to implementation errors. Everything, indeed, the State has done in reviewing and revising the procedure shows that it is trying to prevent Workman from suffering any pain during his execution, not that it is trying or willing to allow a procedure that imposes unnecessary and wanton pain. For these reasons and those elaborated below, we vacate the district court’s temporary restraining order.
07a0163p.06	2007/05/08	Dunham v. USA     Western District of Michigan at Grand Rapids CRIMINAL:  INEFFECTIVE COUNSEL CLAIM MERRITT, Circuit Judge. Todd Dunham is serving a 299-month prison sentence for conspiracy to distribute marijuana, cocaine and heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846 and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In this appeal, he challenges the District Court’s denial of his motion under 28 U.S.C. § 2255 for ineffective assistance of counsel and its subsequent refusal to rule on the merits of his Rule 60(b) motion to vacate the earlier § 2255 denial. For the reasons discussed below, we affirm the decisions of the District Court.
07a0164a.06	2007/05/08	Prime Media Inc. v. Cty of Brentwood     Middle District of Tennessee at Nashville LOCAL GOVERNMENT SIGN ORDINANCE BOYCE F. MARTIN, JR., Circuit Judge. This matter is before the Court on Prime Media, Inc.’s petition for rehearing en banc. Upon consideration of the relevant briefs and the record, we vacate our prior opinion, Prime Media, Inc. v. City of Brentwood, 474 F.3d 332 (6th Cir. 2007), and replace it with this amended opinion. Prime Media filed this lawsuit to challenge a sign ordinance of the City of Brentwood, Tennessee. In a prior appeal, this Court reversed the district court’s entry of summary judgment on behalf of Prime Media, ordering the dismissal of Prime Media’s constitutional challenge as applied. On remand, the district court dismissed Prime Media’s remaining challenges to the sign ordinance on the basis of standing. Prime Media appeals that decision by the district court. For the following reasons, we affirm the district court’s decision.
07a0165p.06	2007/05/08	Thurman v. Pfizer Inc     Eastern District of Michigan at Detroit ERISA:  PREEMPTION; RETIREMENT BOYCE F. MARTIN, JR., Circuit Judge. Dr. Dale Thurman filed suit against Pfizer, alleging that Pfizer misrepresented the monthly pension to which he would be entitled after five years of employment with the company. Thurman claims that these misrepresentations induced him to leave his prior job in order to work for Pfizer. Thurman initially sued in Michigan state court for rescission and to recover either expectation damages or reliance damages. After Pfizer removed the case to federal court, the district court dismissed the case, holding that Thurman’s suit was preempted by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq., which does not provide the type of relief Thurman requested. We hold that the district court correctly ruled that Thurman’s state-law claims were preempted to the extent that he requested expectation damages, which would require a calculation of plan benefits. However, we hold that the district court erred in its ruling with respect to Thurman’s request for rescission of his participation in the plan and reliance damages in the form of benefits he relinquished by leaving his prior job. These aspects of his state-law claims were not related to the plan, and were thus not preempted. Therefore, we REVERSE the district court’s dismissal of Thurman’s state-law claims to the extent that they are not related to the plan, and REMAND for further proceedings not inconsistent with this opinion.
07a0166p.06	2007/05/08	Vasquez v. Jones     Eastern District of Michigan at Detroit HABEAS CORPUS COOK, Circuit Judge. Emilio Salomon Vasquez appeals the district court’s denial of his habeas corpus petition. We reverse and remand with instructions to grant the petition.
07a0167p.06	2007/05/09	USA v. Safa     Eastern District of Michigan at Detroit CRIMINAL:  SENTENCING EVIDENCE: FOUNDATION OPINION TESTIMONY MARTHA CRAIG DAUGHTREY, Circuit Judge. The defendant, Steve Safa, was found guilty by a jury on one count of making a false declaration before a grand jury and was sentenced to serve 15 months in prison and pay a fine of $10,000. On appeal, the defendant contends that the district court admitted into evidence improper lay opinion testimony and failed to consider the necessary factors in imposing sentence. For the reasons set out below, we find no reversible error and affirm the judgment of the district court in its entirety.
07a0168p.06	2007/05/10	JBDL Corp. v. Wyeth-Ayerst Lab     Southern District of Ohio at Cincinnati SHERMAN ANTITRUST ACT JULIA SMITH GIBBONS, Circuit Judge. This litigation arose out of efforts by appellee, Wyeth-Ayerst Laboratories, Inc., to protect its market share in the oral estrogen replacement therapy market through the use of contractual agreements with third-party payer entities. Appellants, wholesale and retail purchasers, brought suit against Wyeth under § 2 of the Sherman Act, alleging that, as a result of Wyeth’s allegedly anticompetitive conduct, they were subject to increased prices on one of Wyeth’s drugs. On Wyeth’s motion, the district court granted summary judgment on appellants’ § 2 claim, and this consolidated appeal followed. For the reasons below, we affirm.
07a0169p.06	2007/05/10	Poundstone v. Patriot Coal Co     Western District of Kentucky at Owensboro DAMAGES; PREJUDGMENT INTEREST BOYCE F. MARTIN, JR., Circuit Judge. In this action for breach of contract, Defendant Patriot Coal Co. appeals certain orders entered by the district court related to the calculation of damages, and asks us to modify the law of the case by finding that a decision by a prior panel of this Court was clearly erroneous. Plaintiffs D.C. Hall, Jr., Ed Phelps, Dennis Hall, and William Poundstone cross-appeal, challenging the interest rate selected by the district court to govern the award of prejudgment interest. For the following reasons, we affirm the district court’s decisions, decline the invitation to modify the law of the case, and reverse only with regard to Plaintiffs’ crossappeal as to the prejudgment interest rate required by Kentucky law.
07a0170p.06	2007/05/11	USA v. Cherry     Western District of Kentucky at Louisville CRIMINAL:  SENTENCING ROGERS, Circuit Judge. The Government appeals the below-Guidelines sentence that the district court imposed on defendant Andy Cherry as a result of Cherry’s guilty plea to four counts of distributing child pornography, nine counts of receiving child pornography, and one count of possessing child pornography. The applicable Guidelines range called for a sentence of 210 to 262 months’ imprisonment. The district court, after considering the factors in 18 U.S.C. § 3553(a), sentenced Cherry to 120 months’ imprisonment. Because the sentence is substantively reasonable, we affirm the judgment of district court.