Jun 4-8, 2007: 6th US Cir. PUBLISHED Decisions (2 Ky Cases)

Opinion	Pub Date	Short Title/District
07a0204p.06	2007/06/04	Marroquin v. Gonzales     Board of Immigration Appeals IMMIGRATION The petitioner seeks judicial review of a decision of the Board of Immigration Appeals (“BIA”) denying his motion to reopen his removal proceedings and rescind an immigration judge’s in absentia order of removal. The petitioner’s proof brief was filed on March 26, 2007. The respondent now moves to remand this case to the BIA to consider the issue of whether the petitioner carried his burden to demonstrate that the in absentia order of removal should be rescinded pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii) because he did not receive notice of the removal hearing. The petitioner does not oppose the motion. The effect of a remand is to render the BIA’s decision nonfinal “and hence not judicially reviewable.” Ren v. Gonzales, 440 F.3d 446, 448 (7th Cir. 2006). A remand will not, however, result in the loss of the petitioner’s right to judicial review. See Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir. 2002). In view of the foregoing circumstances, we find the respondent’s motion to be well taken. The petitioner is cautioned that if the BIA does not rule in his favor, a new timely petition for review must be filed. The motion for remand is GRANTED.
07a0205p.06	2007/06/04	Northland Family v. Cox     Eastern District of Michigan at Detroit ABORTION LAW HELD UNCONSTITUTIONAL BOYCE F. MARTIN, JR., Circuit Judge. The Michigan Attorney General appeals the district court’s decision declaring unconstitutional a state law that regulates abortion methods. Because we find that Michigan’s law fails to comply with the explicit limitations that the Supreme Court has established for statutes regulating abortion, we agree with the district court’s disposition, and affirm.
07a0206p.06	2007/06/06	Fox v. DeSoto     Western District of Kentucky at Louisville RALPH B. GUY, JR., Circuit Judge. Plaintiff Brandon Fox appeals from the judgment entered in favor of defendants Officer Ronald DeSoto and the Louisville Regional Airport Authority on claims arising from his arrest and subsequent prosecution for disorderly conduct and resisting arrest. The district court dismissed plaintiff’s state law claims for false arrest and imprisonment and for assault and battery as time-barred, and granted summary judgment to defendants on the remaining claims. The district court found DeSoto was entitled to qualified immunity on the plaintiff’s Fourth Amendment claims, and concluded that the plaintiff could not prevail on either the claim for malicious prosecution against DeSoto or on the derivative claim against the Airport Authority for negligent hiring, training, and/or retention of DeSoto. After review of the record and the applicable law, we affirm the judgment, albeit on the somewhat different grounds as dictated by the recent decision in Wallace v. Kato, 127 S. Ct. 1091 (2007).
07a0207p.06	2007/06/05	Garza-Moreno, et al. v. Gonzales     Board of Immigration Appeals COOK, Circuit Judge. Porfirio Garza-Moreno and his son Mario Garza-Garcia petition this court to review the Board of Immigration Appeals’ (BIA) order to have them removed from the United States. We dismiss the petition in part and deny it in part.
07a0208p.06	2007/06/05	TransAmerica v. USA, et al.     Western District of Kentucky at Louisville COOK, Circuit Judge. Settlement Capital Corporation (“Settlement Capital”) appeals a district court’s order granting summary judgment in favor of the United States on the basis of federal sovereign immunity. We affirm. This case turns on whether the doctrine of federal sovereign immunity deprives a state court of jurisdiction to approve a transfer of structured-settlement payment rights where the United States nominally owns—but has no beneficial interest in—the annuity funding these payments. If federal sovereign immunity applies, summary judgment should be granted in favor of the government. Cf. Akers v. Alvey, 338 F.3d 491, 497 (6th Cir. 2003).
07a0209p.06	2007/06/05	USA v. Jones     Middle District of Tennessee at Nashville KAREN NELSON MOORE, Circuit Judge. Appellant-Defendant Climmie Jones, Jr. (“Jones”), was convicted by a jury of twenty-one drug and firearms charges. After two prior appeals and remands for resentencing and other proceedings, Jones now appeals his latest sentence of 168 months in prison, six years of supervised release, and a $1,050 special assessment. Jones argues through counsel that the district court erred by applying the preponderance-of-the-evidence standard for judicial fact-finding during sentencing and that his sentence was procedurally and substantively unreasonable. Jones also argues pro se that he was denied the right to represent himself, that the district court erred in calculating the length of two of his twenty-one concurrent six-year terms of supervised release, that his sentence violated the Double Jeopardy Clause, that he was denied access to certain documents, and that he received ineffective assistance of counsel. Because the length of Jones’s two terms of supervised release for his two firearms convictions exceeds the statutory maximum, and because eight of Jones’s convictions subjected him to multiple punishments in violation of the Double Jeopardy Clause, we VACATE the judgment of the district court and REMAND for the limited purpose of entering an amended judgment that remedies these two errors.
07a0210p.06	2007/06/06	Lane v. LaFollette     Eastern District of Tennessee at Knoxville CLAY, Circuit Judge. Plaintiff Landon Lane is the former Recreation Director of the city of LaFollette, Tennessee (the “City”). In the November, 2004 mayoral election, Plaintiff supported Defendant Cliff Jennings’ opponent, Lucy Lobertini. Defendant Jennings won the election. After the election, Defendants Jennings, Robert Fannon and Hansford Hatmaker, all members of City Council, voted to terminate Plaintiff. Plaintiff sued Defendants in their individual and official capacities pursuant to 42 U.S.C. § 1983, alleging, inter alia, that they violated several of his rights secured by the United States Constitution, primarily his First and Fourteenth Amendment right not to be terminated from government employment on account of his political beliefs. Defendants moved for summary judgment, arguing that they did not vote to terminate Plaintiff because of his political beliefs, and, even if they had, the nature of Plaintiff’s position was such that Plaintiff could legally be terminated for political reasons. Defendants also contended that their actions were protected by the doctrine of qualified immunity. The district court denied Defendants’ motion for summary judgment with respect to Plaintiff’s federal constitutional claims, and Defendants brought this interlocutory appeal challenging the district court’s refusal to credit their defense of qualified immunity. In addition, Defendants challenge the district court’s refusal to grant summary judgment in their favor on Plaintiff’s official-capacity claims. For the reasons that follow, we AFFIRM the district court’s denial of qualified immunity, and DISMISS Defendants’ challenge to Plaintiff’s official-capacity claims for want of jurisdiction.
07a0211p.06	2007/06/06	River City Capital v. Bd of County Comm     Southern District of Ohio at Cincinnati BOYCE F. MARTIN, JR., Circuit Judge. This case presents a familiar question in our circuit: whether a plaintiff in Ohio may proceed directly in federal court based on an alleged unconstitutional taking of his private property by a government entity, or whether he must first exhaust Ohio state remedies. We hold that state exhaustion is required, regardless of the nature of the taking, in keeping with this Court’s recent decisions in Coles v. Granville, 448 F.3d 853 (6th Cir. 2006) and McNamara v. Rittman, 473 F.3d 633 (6th Cir. 2007). Because Plaintiff River City Capital has failed to exhaust its state avenues for relief, the case is not ripe for review, and thus we VACATE the order of the district court in all respects, save one minor issue that was collateral to the merits.
07a0212p.06	2007/06/07	USA v. Hunt     Western District of Tennessee at Memphis KAREN NELSON MOORE, Circuit Judge. Appellant-Defendant James Henry Hunt (“Hunt”), also known as Jamon Cameron Jones, pleaded guilty in 1998 to one count of fraudulent use of a social security number and one count of establishment of a controlled substances distribution operation. While released on bail before sentencing, Hunt fled. After being recaptured in 2006, Hunt was sentenced to 188 months in prison, three years of supervised release, and a $200 special assessment. Hunt now appeals his sentence, arguing that he merely allowed cocaine to be stored in his apartment and did not participate in any underlying drug offense, entitling him to a lower advisory Guidelines range pursuant to U.S. Sentencing Guideline § 2D1.8(a)(2). Because the district court did not clearly err in determining that Hunt was responsible for delivering the supply of cocaine found in his apartment and was thus not entitled to the benefit of Guideline § 2D1.8(a)(2), we AFFIRM the judgment of the district court.
07a0213p.06	2007/06/08	Wisecarver v. Moore     Western District of Kentucky at Bowling Green SILER, Circuit Judge. Don Wisecarver, Carol McCamy, and Karen Solomon (collectively, “Plaintiffs”) appeal the district court’s order dismissing their complaint for lack of subject matter jurisdiction based on the probate exception to federal diversity jurisdiction. On appeal, Plaintiffs argue that the Supreme Court’s recent narrowing of the probate exception in Marshall v. Marshall, 126 S.Ct. 1735 (2006), renders the exception inapplicable to this case. We AFFIRM in part and REVERSE in part.
07a0214p.06	2007/06/08	In re: Thom. Barrett v.     Northern District of Ohio at Youngstown GRIFFIN, Circuit Judge. Plaintiff-debtor Thomas Barrett filed a voluntary Chapter 7 bankruptcy petition on December 28, 2001, seeking the discharge of $302,342 in unsecured nonpriority debt. Among those claims are two student loans totaling $94,751. Defendant Educational Credit Management Corporation (“ECMC”) appeals the judgment of the Sixth Circuit Bankruptcy Appellate Panel (“BAP”) affirming the bankruptcy court’s order discharging Barrett’s student loan debts on the basis of “undue hardship” pursuant to 11 U.S.C. § 523(a). ECMC argues that Barrett was required to provide corroborating evidence in the form of expert medical proof to establish that the circumstances underlying his inability to repay the loans will likely continue for a substantial portion of the repayment period. ECMC contends further that Barrett failed to establish that he has made a good faith effort to repay his loans in light of his decision not to participate in the Income Contingent Repayment Plan. For the reasons set forth below, we affirm.