6th. Cir. Published Decisions for Week of Oct. 29, 2007 (1 Ky Decision)

Opinion	Short Title/District
07a0433p.06	Morgan v. Gonzales     Immigration & Naturalization Service RONALD LEE GILMAN, Circuit Judge. Maciver Morgan, a native and citizen of Jamaica, legally entered the United States as a permanent resident alien in 1985. Morgan married his wife,Tonya, in 1998, and they have since lived in Cleveland, Ohio with their two children and her child from a previous relationship. In 1996, Morgan pled guilty in Ohio state court to aggravated assault and was sentenced to 18 months in prison. The Bureau of Immigration and Customs Enforcement (ICE) initiated removal proceedings against him in 2003, alleging that his conviction for an aggravated felony/crime of violence made him removable under 8 U.S.C. § 1227(a)(2)(A)(iii). Morgan contested his removability and alternatively applied for a waiver of inadmissibility pursuant to § 212(c) of the Immigration and Nationality Act (INA). Following three hearings, the Immigration Judge (IJ) denied Morgan’s application and ordered him removed to Jamaica. The Board of Immigration Appeals (BIA) affirmed the IJ’s decision and Morgan timely appealed. For the reasons set forth below, we AFFIRM the judgment of the BIA.
07a0434p.06	USA v. Wilson     Western District of Tennessee at Jackson RONALD LEE GILMAN, Circuit Judge. This case involves the constitutionality of a patdown search of a car passenger that resulted in the discovery of over one pound of powder cocaine. Lamar Wilson was a passenger in a car driven by Michael Jones when the car was pulled over by police officers because neither man was wearing a seat belt. The encounter escalated from a routine traffic stop into a pat-down search for weapons. During this pat-down search, a package wrapped in duct tape, later discovered to be cocaine, fell from one of Wilson’s pant legs. The district court granted Wilson’s motion to suppress evidence of the cocaine, concluding that the government had not shown that the officers had a reasonable belief that Wilson was armed and dangerous before conducting the pat-down search. On appeal, the government contends that the search did not violate the Fourth Amendment. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0435p.06	USA v. Gibbs     Western District of Michigan at Grand Rapids RONALD LEE GILMAN, Circuit Judge. Timothy Allen Gibbs appeals his jury conviction on one count of being a felon in possession of a firearm and the corresponding sentence of 108 months’ imprisonment. He was indicted on the basis of a handgun that was found in the basement bedroom of his mother’s residence, where he had been living. Gibbs has raised three issues on appeal: (1) that the district court abused its discretion and violated the terms of its own motion-inlimine order by allowing evidence of prior bad acts, (2) that the district court erred in allowing into evidence an out-of-court statement in violation of the Confrontation Clause of the Sixth Amendment, and (3) that the district court committed plain error by ordering Gibbs’s federal sentence to run consecutively to a sentence that he was serving for a state-court conviction. For the reasons set forth below, we AFFIRM Gibbs’s conviction, but VACATE his sentence and REMAND for resentencing.
07a0436p.06	Thomas v. Speedway     Southern District of Ohio at Cincinnati ALICE M. BATCHELDER, Circuit Judge. Plaintiff Mabel Kay Thomas (“Thomas”) appeals the district court’s grant of summary judgment in favor of Speedway SuperAmerica LLC (“Speedway”), which denied her claims for unpaid overtime wages under both federal and state law. The district court held that Thomas was a bona fide executive employee under 29 U.S.C. § 213(a)(1) and thus not entitled to overtime wages. The narrow issue on appeal is whether Thomas’s primary duty consisted of management, which is a requirement of the executive-employee exemption. We find that Speedway has satisfied its burden on this issue and AFFIRM the district court’s judgment.
07a0437p.06	Bailey v. Port Huron, et al     Eastern District of Michigan at Detroit SUTTON, Circuit Judge. Dorothy Bailey claims that the Port Huron Police Department violated her constitutional right to privacy by disclosing her name, hometown, photograph, phone number and husband’s occupation after prosecutors charged her in connection with a drunk-driving accident. Because a criminal suspect does not have a constitutional privacy right to the nondisclosure of this information, compare Paul v. Davis, 424 U.S. 693, 713–14 (1976), with Kallstrom v. City of Columbus, 136 F.3d 1055, 1062 (6th Cir. 1998), we affirm.
07a0438p.06	Smith, et al. v. Carbide Chem, et al     Western District of Kentucky at Paducah AVERN COHN, District Judge. This is an environmental case. Plaintiffs-Appellants Warren Smith, et al. (collectively referred to as Appellants), appeal the district court’s grant of summary judgment for Defendants-Appellees Carbide and Chemicals Corp., et al. (collectively referred to as Appellees). Appellants brought claims for intentional trespass, permanent private nuisance, and strict liability based on contamination caused by imperceptible particles, claiming harm to their real property. After briefing and oral argument, we determined that Kentucky law was unsettled regarding a claim of intentional trespass. Accordingly, we certified the following questions to the Kentucky Supreme Court: 1. Is proof of actual harm required to state a claim for an intentional trespass? 2. If the plaintiffs can prove a diminution in their property values due to an intentional trespass, do they have a right of recovery under Kentucky law? The Kentucky Supreme Court answered the first question “No.” The answer to the second question, as will be explained, requires that the district court’s decision granting summary judgment on Appellants’ intentional trespass claim be REVERSED because a factual dispute exists as to whether Appellants suffered actual injury. As to Appellants’ nuisance and strict liability claims, we also find that there are genuine issues of material fact and therefore REVERSE the district court’s grant of summary judgment on these claims.
07a0439p.06	Mohammed v. Gonzales     Immigration & Naturalization Service BOYCE F. MARTIN, JR., Circuit Judge. Aftab Mohammed petitions for review of an order rendered by the Board of Immigration Appeals denying his application for asylum, withholding of deportation, and Convention Against Torture claim. For the reasons set forth below, we DENY Mohammed’s petition for review.
07a0440p.06	Morales v. Mitchell     Northern District of Ohio at Cleveland KAREN NELSON MOORE, Circuit Judge. Petitioner-Appellee/Cross-Appellant Alfred Morales (“Morales”) was convicted of kidnapping and aggravated murder in an Ohio state court and sentenced to death. He petitioned the district court for a writ of habeas corpus, arguing, inter alia, that his trial counsel was constitutionally ineffective and that the trial court erroneously struck a potential juror from the panel. The district court granted the petition, in part, vacating Morales’s death sentence on the ground that his trial attorney had rendered ineffective assistance of counsel (“IAC”) at the penalty phase of the trial. Respondent-Appellant/Cross-Appellee Betty Mitchell (“Mitchell” or “the state”) now appeals the district court’s issuance of the writ. Morales crossappeals the district court’s denial, in part, of his petition on the grounds that his counsel was not ineffective at the guilt phase of the trial and that the trial court did not err in striking a juror that it found was not death-qualified and lacked an adequate understanding of the proceedings. For the reasons set forth below, we AFFIRM the district court’s partial grant of the petition and issuance of the writ.