Jul. 09-13, 2007 6th Circuit Published Decisions (1 Ky Cases)

Opinion	Pub Date	Short Title/District
07a0254p.06	2007/07/10	Hartman v. Bagley     Northern District of Ohio at Cleveland HABEAS CORPUS RONALD LEE GILMAN, Circuit Judge. Brett X. Hartman was convicted in an Ohio state court of aggravated murder and was sentenced to death. After exhausting his state-court remedies, he filed a petition for habeas corpus in federal district court. The district court denied his petition, but issued a certificate of appealability (COA) regarding one of Hartman’s claims. This court added three more claims to the COA. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0255p.06	2007/07/10	Dixon v. Clem     Eastern District of Kentucky at London 42 USC 1983 ACTION: SOL RONALD LEE GILMAN, Circuit Judge. In 1996, David H. Dixon lost his job as a teacher at Cumberland High School in Harlan County, Kentucky after the revelation that he had taken topless photographs of S.C., one of his female students. A state administrative tribunal subsequently upheld his termination following a hearing in which the school introduced numerous photographs to validate its determination that Dixon had indeed engaged in “conduct unbecoming a teacher. Claiming that the state tribunal and related defendants had violated his constitutional right to the due process of law by allowing faked photographs to be submitted against him, Dixon brought the instant suit in federal court pursuant to 42 U.S.C. § 1983. The district court dismissed Dixons claims against each of the defendants pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, holding that Dixon had failed to comply with the applicable one-year statute of limitations. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0256p.06	2007/07/10	USA v. Moncivais     Western District of Tennessee at Memphis SENTENCING CLAY, Circuit Judge. Defendant Alberto Moncivais appeals his sentence of 336 months imprisonment imposed following a guilty plea. Defendant pled guilty to one count of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. 841(a)(1) and 846. On appeal, Defendant contends that: (1) the district court erred by sentencing him based on evidence that was inadmissible as a matter of law due to its unreliability; (2) the district court erred by concluding that Defendant was an organizer or leader and enhancing his advisory United States Sentencing Guidelines (Guidelines or U.S.S.G.) range by four points pursuant to U.S.S.G. § 3B1.1(a); (3) the government breached the plea agreement; (4) the district court violated Defendant's right to due process by finding facts at sentencing by a preponderance of the evidence; and (5) the district court violated Defendant rights under the Confrontation Clause by admitting testimonial hearsay at sentencing, notwithstanding the fact that the declarant did not testify, and Defendant had not had an opportunity to cross-examine the declarant. For the reasons stated below, we AFFIRM Defendant's conviction and sentence.
07a0257p.06	2007/07/10	Brown, et al v. Cassens, et al     Eastern District of Michigan at Detroit WIRE FRAUD JULIA SMITH GIBBONS, Circuit Judge. Plaintiffs-appellants Paul Brown, William Fanaly, Charles Thomas, Gary Riggs, Robert Orlikowski, and Scott Way (plaintiffs) filed suit in federal district court against defendants-appellees Cassens Transport Company (Cassens), Crawford & Company (Crawford), and Dr. Saul Margules (defendants) alleging that defendants employed mail and wire fraud in a scheme to deny them worker’s compensation benefits promised under the Michigan Workers Disability Compensation Act (WDCA), Mich. Comp. Laws § 418.301, and raising federal and state law claims. On defendants motion, the district court dismissed plaintiffs complaint for failure to state a claim on which relief could be granted. Fed. R. Civ. P. 12(b)(6). For the reasons below, we affirm.
07a0258p.06	2007/07/11	Meals v. Memphis Cty     Western District of Tennessee at Memphis 42 USC 1983; QUALIFIED IMMUNITY JOHN R. ADAMS, District Judge. This high-speed police pursuit case deals with the shocks the conscience standard set forth in County of Sacramento v. Lewis, 523 U.S. 833 (1998), and its application to the police pursuit in this case. Appellant Bridgette King (Officer King) is employed as a police officer by appellant City of Memphis, Tennessee (the City). Appellee Audrey Meals, individually and as wife and next friend of James Harvey Meals, deceased, and as natural parent, guardian and next friend of William Meals, a minor child, filed a complaint against Officer King and the City under 42 U.S.C. § 1983 alleging, inter alia, deprivation of the Fourteenth Amendment substantive due process rights of her family in causing their death or personal injuries as the result of a police pursuit for a traffic violation. The district court denied the Citys motion for summary judgment as to appellee's § 1983 claim for violation of the Fourteenth Amendment and her state law claim for negligence. The district court subsequently denied Officer King's motion for summary judgment both as to appellee's § 1983 claim for violation of the Fourteenth Amendment and also her claim of qualified immunity. For the reasons that follow, we reverse the district court's denial of qualified immunity to Officer King and denial of summary judgment to the City on the § 1983 claim for violation of the Fourteenth Amendment.
07a0259p.06	2007/07/11	USA v. Lanesky     Eastern District of Michigan at Detroit SENTENCING: ALICE M. BATCHELDER, Circuit Judge. Michelle Lanesky pled guilty to one count of conspiracy to commit bank fraud and launder the proceeds, in violation of 18 U.S.C. §§ 371, 1956 & 1957, and one count of bank fraud, in violation of 18 U.S.C. § 1344. The district court sentenced her to two concurrent terms of 36 months incarceration, three years supervised release, the mandatory $200 special assessment, and restitution in the amount of $1,131,207.28, for which the court held Ms. Lanesky jointly and severally liable with her co-conspirators. In her timely appeal, Ms. Lanesky assigns as error the district court’s failure to address fully or to resolve the objections she raised with regard to the presentence report (PSR). Because we conclude that the district court neither ruled on these objections nor determined that the matters would not affect or be considered in the sentencing, and because the court did not calculate and consider a correct advisory guideline sentence, we vacate the sentence and remand for resentencing.
07a0260p.06	2007/07/11	USA v. McGee     Western District of Michigan at Grand Rapids SENTENCING McKEAGUE, Circuit Judge. Appellant Richard Bruce McGee was found guilty of possession with intent to distribute cocaine base, being a felon in possession of a firearm, and possession of a firearm in furtherance of a drug trafficking crime. With respect to the first two offenses, the district court calculated a Guidelines range of 46-57 months in prison and sentenced Appellant to 48 months for each offense, to be served concurrently. With respect to the third offense, the district court sentenced Appellant to the statutory mandatory minimum of 60 months in prison, to be served consecutively to the 48-month sentence. On appeal, Appellant claims that (1) the district court erred in the scoring of his criminal history category and (2) his sentence is unreasonable. For the reasons stated below, we AFFIRM.
07a0261p.06	2007/07/11	Parks v. LaFace Records     Eastern District of Michigan at Detroit ATTORNEY FEES After reviewing the record, we conclude that the fee sharing agreements are not ambiguous and pursuant to the settlement agreement should be enforced.
07a0262p.06	2007/07/12	USA v. Collier     Western District of Michigan at Grand Rapids SENTENCING COOK, Circuit Judge. Anthony Leon Collier, who pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), appeals his sentence, which was enhanced under the Armed Career Criminals Act (ACCA), 18 U.S.C. § 924. We vacate his sentence and remand for resentencing.
07a0263p.06	2007/07/13	Haliym v. Mitchell     Northern District of Ohio at Cleveland HABEAS CORPUS CLAY, Circuit Judge. Petitioner Abdul Haliym, formerly known as Wayne Frazier, appeals the district court’s denial of his petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raises multiple challenges to his convictions for, inter alia, two counts of aggravated murder and his sentence of death. For the reasons stated below, we AFFIRM the district court's denial of the writ with respect to Petitioner’s convictions, but REVERSE the district court's denial of the writ with respect to Petitioner's sentence because Petitioner was denied the effective assistance of counsel during the mitigation phase of his sentencing.
07a0264p.06	2007/07/13	In re Abdur'Rahman v.     Middle District of Tennessee at Nashville HABEAS CORPUS SILER, Circuit Judge. In 2004, our en banc court concluded that Abu-Ali AbdurRahman's post-judgment motion should be treated as a Fed. R. Civ. P. 60(b) motion rather than a second or successive habeas petition. In 2005, the Supreme Court granted certiorari in this case, vacated our previous judgment, and remanded for our consideration in light of Gonzalez v. Crosby, 545 U.S. 524 (2005). Bell, 545 U.S. 1151. Based on Gonzalez, AbduRahman's motion should be treated as a motion pursuant to Rule 60(b), not a second or successive habeas petition. However, we dismiss his motion as untimely.
07a0265p.06	2007/07/13	Amer Family Prepaid v. Columbus Bar Assn     Southern District of Ohio at Columbus UNAUTHORIZED PRACTICE OF LAW: CEASE AND DESIST SILER, Circuit Judge. American Family Prepaid Legal Corporation (American Family) appeals the district court's dismissal, on abstention grounds, of its constitutional due process challenge to the Ohio Supreme Court rule governing the unauthorized practice of law. Under Rule VII, Section 5(a) of the Ohio Supreme Court Rules for the Government of the Bar (the Rule), the unauthorized practice of law committee of any bar association may file a motion for an interim cease and desist order with the Ohio Supreme Court, pending resolution of whether the party is engaged in the unauthorized practice of law. Because American Family has not met its burden of showing that its due process challenge to the Rule will not be resolved in the course of the current proceedings under Ohio law, we AFFIRM the district court's decision to abstain based on Younger v. Harris, 401 U.S. 37 (1971).