Daily Case Update Archive

As a service to our members, we monitor opinions issued from the Ohio Supreme Court, the Ohio State First District Court of Appeals, and the United States Sixth Circuit Court of Appeals. You can read the latest summaries or archived summaries from 2005 , 2006 , 2007 , 2008 , 2009 , 2010 , 2011.

If you would like to receive a daily e-mail with same-day case updates, please join our Subscribers-Only discussion list. Not a subscriber? Join today!

Sept. 5th - 16th, 2011

Ohio Supreme Court | Ohio First District | U.S. 6th Circuit - Ohio | U.S. 6th Circuit - Other States

TOPICS:

- Employment / Wrongful discharge / Clear public policy
- Habeas corpus / Dismissal of petition affirmed
- Habeas corpus / Invalidity of indictment / prosecutorial misconduct
- Land held in public trust abutting private property
- Writ of mandamus / Elections / Withdrawal of candidacy
- Elections / Withdrawal of candidacy
- Elections / Municipalities / Referendum / ORC 731.32
- Bankruptcy misconduct
- Attorneys Misconduct
- Workers compensation
- Motion to suppress / Probable cause / Reasonable suspicion
- Evidence / Insufficient / Manifest weight
- Domestic violence / Records sealed / Evidence
- Civil Rule 54(B) / Final Appealable order
- Community Control violation
- Anders v. California / Frivolous appeal
- Motion to suppress / Prejudicial misconduct / Allied offenses of similar import / Sentencing / Evidence
- Jurisdiction / Venue / Juries / Constitutional law / Criminal
- Sentencing / Procedure / Post release control
- Jury Instructions / Evidence / Witness / Trial
- Mandamus / Writs / Public record
- Sentencing / Post release control
- Habeas corpus /Fair trial / Ineffective counsel / Evidence / Hearsay
- Train crash / Cancer-causing agents / General or specific causation
- Civil suit / Probable cause / Excessive force / Qualified immunity
- Labor arbitration award / Collective bargaining agreement / Positive Drug test
- Qualified immunity / Lack of jurisdiction / State statutory immunity
- Habeas corpus / New evidence / Jury instructions
- Double jeopardy / Separate acts / Child Pornography
- Motion for sanctions / Monetary / Injunctive
- Securities Litigation Uniform Standards Act of 1998
- Immigration / Petition for review / Administrative record
- Motion for New Trial / Prosecutorial misconduct / Ineffective assistance of counsel
- Motion for remittitur / Punitive damages award / False arrest and malicious prosecution
- Habeas petition / Ineffective assistance / Credible witnesses

Ohio Supreme Court

Dohme v. Eurand Am., Inc. (Slip Opinion)(Sept. 15, 2011)
http://www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-4609.pdf

To satisfy the clarity element of a claim of wrongful discharge in violation of public policy, a terminated employee must articulate a clear public policy by citation to specific provisions in the federal or state constitution, federal or state statutes, administrative rules and regulations, or common law.

Hazel v. Knab (Slip Opinion)(Sept. 15, 2011)
http://www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-4608.pdf

Habeas corpus - Dismissal of petition affirmed - R.C. 2969.25(C) - Failure to include certified statement of inmate account balance in affidavit of indigency is fatal defect.

McDougald v. Brunsman (Slip Opinion)(Sept. 15, 2011)
http://www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-4607.pdf

Habeas corpus - Invalidity of indictment, innocence of charge, and prosecutorial misconduct are not claims cognizable in habeas corpus - Judgment dismissing petition affirmed.

State ex rel. Dolgencorp, Inc. v. Indus. Comm. (Slip Opinion)(Sept. 15, 2011)
http://www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-4606.pdf

Workers' Compensation - R.C. 4123.57(B) - Scheduled-loss compensation - Loss of vision - Effect of corrective surgery - State ex rel. Baker v. Coast to Coast Manpower, L.L.C., followed.

State ex rel. Miller v. Warren Cty. Bd. of Elections (Slip Opinion)(Sept. 15, 2011)
http://www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-4623.pdf

Elections - Mandamus and Prohibition - Relators have an adequate remedy at law - Writ denied.

State ex rel. Merrill v. Ohio Dept. of Natural Resources (Slip Opinion)(Sept. 14, 2011)
http://www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-4612.pdf

Land held in public trust abutting private property - The territory of Lake Erie held in trust by the state of Ohio for the people of the state extends to the natural shoreline, which is the line at which the water usually stands when free from disturbing causes.

Disciplinary Counsel v. Cantrell (Slip Opinion)(Sept. 14, 2011)
http://www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-4554.pdf

Attorneys - Misconduct - Felony grand theft - Possession of cocaine - Indefinite suspension, to be served consecutively to indefinite suspension previously imposed.

State ex rel. Mahoney v. Lucas Cty. Bd. of Elections (Slip Opinion)(Sept.9,2011)
http://www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-4551.pdf

Writ of mandamus granted based on decision in State ex rel. Coble v. Lucas Cty. Bd. of Elections.

State ex rel. Coble v. Lucas Cty. Bd. of Elections (Slip Opinion) (Sept.9,2011)
http://www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-4550.pdf

Mandamus-Elections-Withdrawal of candidacy and submission of second nominating petition-R.C. 3513.261 and 3513.052.

State ex rel. Julnes v. S. Euclid City Council (Slip Opinion)(Sept.7,2011)
http://www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-4485.pdf

Elections - Municipalities - Referendum - R.C. 731.32 - Filing certified copy of ordinance with council clerk complies with requirement that in absence of city auditor, copy shall be filed with official who performs duties of city auditor - Statement that certified copy of ordinance is "exact copy" of ordinance satisfies attestation requirement of R.C. 731.32 - City charter provision subjecting emergency ordinances to referendum "except as otherwise provided by the Constitution or general laws" - Neither Constitution nor general laws conflict with charter provision.

Columbus Bar Assn. v. Williams (Slip Opinion)(Sept.7,2011)
http://www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-4381.pdf

Attorneys - Misconduct - Multiple violations of Rules of Professional Conduct, including failing to act with reasonable diligence in representing a client and failing to keep the client reasonably informed about the status of a legal matter - Two-year suspension stayed on conditions.

PNH, Inc. v. Alfa Laval Flow, Inc. (Slip Opinion)(Sept. 7, 2011)
http://www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-4398.pdf

Bankruptcy - Federal preemption of state law causes of action for misconduct in bankruptcy proceedings.

Akron Bar Assn. v. Miller(Slip Opinion)(Sept. 7, 2011)
http://www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-4412.pdf

Attorneys - Misconduct - Sexual remarks to client - Prof.Cond.R. 8.4(h) - Conduct adversely reflecting on fitness to practice law - Six-month suspension, all stayed, on conditions.

Ohio Bur. of Workers' Comp. v. McKinley (Slip Opinion)(Sept. 7, 2011)
http://www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-4432.pdf

Workers' compensation - R.C. 4123.931 - A claim brought by a statutory subrogee pursuant to R.C. 4123.931(G) to recover its subrogation interest is a claim "upon a liability created by statute" and is therefore subject to the six-year statute of limitation of R.C. 2305.07.

First District Court of Appeals: [Search Other Ohio Districts]

*** Judgment Entries ***

State of Ohio vs. Neil Sehgal (Sept. 7, 2011)
http://www.hamilton-co.org/appealscourt/docs/decisions/C-100722_09072011.pdf; Sehgal was arrested for two counts of operating a motor vehicle while under the influence of alcohol ("OVI"),2 and for failing to remain in his lane of travel.3 Sehgal filed a motion to suppress evidence, claiming that the arresting officer lacked the proper justification to stop him. The trial court granted the motion, and the state now appeals. The state argues that Ohio State Highway Patrol Trooper Chris Sanger had a reasonable and articulable suspicion that Sehgal had committed at least one traffic offense that justified the traffic stop and that Trooper Sanger had probable cause to arrest Sehgal for the two OVI violations. Motion to suppress REVERSED.

State of Ohio vs. Tonya Sullivan (Sept. 7, 2011)
http://www.hamilton-co.org/appealscourt/docs/decisions/C-100481_09072011.pdf; Sullivan was convicted of one count of theft for the unauthorized use of cable television service. No evidence was presented that she owned the property, that she had any control over the property, or that she even lived there at all. We conclude that the evidence presented was insufficient and order the trial court to discharge her.

State of Ohio vs. Lumo Emery (Sept. 7, 2011)
http://www.hamilton-co.org/appealscourt/docs/decisions/C-100406_09072011.pdf; Emery appeals the decision of the trial court denying his request to seal the records of his three prior nonconvictions for domestic violence. The state did not establish that Emery was not entitled to have his records sealed. Judgment REVERSED.

City of Cincinnati vs. Al Gammarino (Sept. 9, 2011)
http://www.hamilton-co.org/appealscourt/docs/decisions/C-100762_09092011.pdf; Gammarino appeals the municipal court's entry of summary judgment for the plaintiff-appellee the city of Cincinnati on the city's claims against Gammarino. But Gammarino's counterclaims against the city remain in the action and are not rendered moot, nor are they fully resolved, by the summary judgment on the city's claims. In this case, the order granting summary judgment for the city on the city's claims meets the finality requirements of R.C. 2502.02, but Civ.R. 54(B) applies because of the counterclaims. Appeal DISMISSED.

State of Ohio vs. Aaron Rosemond (Sept. 9, 2011)
http://www.hamilton-co.org/appealscourt/docs/decisions/C-100671_09092011.pdf; Rosemond appeals from the six-and-one-half-year prison term imposed by the trial court for violating the terms of a community-control sanction imposed. Judgment AFFIRMED.

State of Ohio vs. Diaz Lopez (Sept. 14, 2011)
http://www.hamilton-co.org/appealscourt/docs/decisions/C-110024_09142011.pdf; Defendant-appellant Ramiro Alfonso Lopez-Diaz pleaded guilty to two counts of trafficking in marijuana, felonies of the third degree. The trial court sentenced Lopez-Diaz to four years in prison and suspended his driver's license for six months. According to Anders v. California, counsel now ask the court to independently review the record for any prejudicial error that would warrant reversing the trial court's judgment. Appeal FRIVOLOUS.

In Re: A.G-J; A.G-J; and A.G-J. (Sept. 16, 2011)
http://www.hamilton-co.org/appealscourt/docs/decisions/C-110364_09162011.pdf; Gannaway appeals the judgment of the Hamilton County Juvenile Court that terminated her custody of three of her children. Gannaway's appointed appellate counsel, pursuant to Anders v. California, requests this court to review the record for any reversible error. Appeal FRIVOLOUS.

State of Ohio vs. Jesse T. Sherman (Sept. 16, 2011)
http://www.hamilton-co.org/appealscourt/docs/decisions/C-100817_09162011.pdf; Sherman appeals from the trial court's judgment that resentenced him for the purpose of notifying him about postrelease control. Sherman's appointed counsel now advises this court that, after a thorough review of the record, she has found nothing that would arguably support Sherman's appeal. Judgment AFFIRMED.

State of Ohio vs. Howard Johnson (Sept. 16, 2011)
http://www.hamilton-co.org/appealscourt/docs/decisions/C-100707_09162011.pdf; Following a jury trial, defendant-appellant Howard Johnson appeals his convictions and sentences for the rape and kidnapping of Angela Richards and the rape of J.W., a female minor. He argues (1) the trial court erred in denying his motion to suppress, (2) the Prosecuting attorney committed prejudicial misconduct in his opening and closing statements, (3) the trial court erred in imposing a sentence for both rape and kidnapping of Richards, (4) he was given an excessive sentence, and (5) the weight and sufficiency of evidence adduced to support his convictions. Judgment AFFIRMED.

*** Opinions ***

State v. Taylor (Sept. 16, 2011)
http://www.sconet.state.oh.us/rod/docs/pdf/1/2011/2011-ohio-4648.pdf; JURISDICTION/VENUE - JURIES - CONSTITUTIONAL LAW/CRIMINAL: Where the defendant was tried to the bench on serious offenses, strict compliance with R.C. 2945.05's jury-waiver requirements was mandatory. Where no written jury waiver was made a part of the record, the trial court had no jurisdiction to hold a bench trial on serious offenses.

State v. Robb (Sept. 16, 2011)
http://www.sconet.state.oh.us/rod/docs/pdf/1/2011/2011-ohio-4647.pdf; SENTENCING - PROCEDURE/RULES: Where the trial court failed to inform the defendant about the requirements of postrelease control, that portion of the defendant's sentence is void and, in the absence of any other matter that would have voided a separate portion of the sentence, the resentencing hearing is limited to the proper imposition of postrelease control. Where the defendant filed a motion to withdraw his guilty plea prior to a resentencing hearing limited to the purpose of properly imposing postrelease control, the motion should be treated as a postsentence motion to withdraw the plea.

State v. Simpson (Sept. 14, 2011)
http://www.sconet.state.oh.us/rod/docs/pdf/1/2011/2011-ohio-4578.pdf; JURY INSTRUCTIONS - EVIDENCE/WITNESS/TRIAL - ID/PHOTOS: In a criminal trial, the trial court erred in instructing the jury that it could infer facts only from facts and circumstances proven "by the greater weight of the evidence," because the instruction set forth a civil-trial standard and its use in a criminal case was erroneous; however, the error was not prejudicial where the trial court correctly instructed the jury several times that it could not convict the defendant unless it found him guilty beyond a reasonable doubt. The trial court did not err in refusing to admit into evidence two tape-recorded telephone conversations between one of the victims and the defendant in which the victim allegedly asked the defendant for money in exchange for not testifying against the defendant where the statements were extrinsic evidence used solely to contradict the victim's testimony on a collateral matter. No error occurred in the trial court's excluding from evidence the defendant's testimony that his two alleged robbery coconspirators had approached him before the offense and had asked him to participate in a robbery; even though the coconspirators' out-of-court statements did not constitute hearsay because they fell squarely within the hearsay exception for a statement of the declarant's then existing state of mind, the testimony, concerning who had planned the robbery, was irrelevant to the issue at trial: whether the defendant had participated in the robbery. The trial court did not err in failing to give the defendant's proposed jury instruction on eyewitness identification, which stated that single-person lineups can lead to misidentification, where the requested instruction was not a correct statement of the law and where no lineup or "one-man show-up" had occurred; the victims had just happened to see the defendant in the neighborhood the day following the robbery and had called the police. Where the defendant failed to demonstrate that the cumulative effect of any errors by the trial court deprived him of a fair trial, his conviction must be affirmed.

State ex rel. Cincinnati Enquirer v. Streicher (Sept. 9, 2011)
http://www.sconet.state.oh.us/rod/docs/pdf/1/2011/2011-ohio-4498.pdf; MANDAMUS - WRITS: Where Cincinnati police were involved in a gun battle with an "outlaw" motorcycle club that left one club member dead and two police officers wounded, a writ of mandamus will not issue to compel the police chief to disclose to a newspaper journalist the identities of the wounded officers: the officers' identities are exempt from the definition of "public record" under R.C. 149.43, the Ohio Public Records Act, because disclosure of the officers' identities would violate their fundamental rights to due process under the Fourteenth Amendment where the evidence established that disclosure of the officers' identities to the public would place them at substantial risk of serious bodily harm from a perceived likely threat, and the disclosure was not narrowly tailored to achieve a compelling state interest.

State v. Cameron (Sept. 7, 2011)
http://www.sconet.state.oh.us/rod/docs/pdf/1/2011/2011-ohio-4484.pdf; SENTENCING: Where the defendant was sentenced after R.C. 2929.191's effective date of July 11, 2006, and where the trial court failed to inform the defendant at his sentencing hearing that he was subject to a mandatory five-year period of post-release control for an aggravated-robbery offense and a mandatory three-year period of post-release control for a weapons-under-disability offense, and where the court further failed to notify the defendant that if he violated the conditions of his post-release control the parole board could impose a prison term of up to one-half of the prison term originally imposed, the trial court must correct its judgment entry by employing the sentencing-correction mechanism of R.C. 2929.191.
U.S. Sixth Circuit Court of Appeals: Ohio Cases

Stanley Jalowiec v. Margaret Bradshaw (Sept.7, 2011)(Appeal from N.D. OH)
http://www.ca6.uscourts.gov/opinions.pdf/11a0257p-06.pdf

This is an appeal from a denial of habeas relief. Petitioner Stanley Jalowiec was convicted of murder and sentenced to death. After the Ohio courts denied Jalowiec's requests for appellate and post-conviction relief, the district court denied all forty-seven claims of error asserted in Jalowiec's petition for writ of habeas corpus. We certified five claims for appeal. In these claims, petitioner contends that he was denied a fair trial due to the prosecution's wrongful suppression of Brady material; that he was denied effective assistance of counsel at trial by virtue of defense counsel's undisclosed conflict of interest and, in the penalty phase, because counsel failed to object to hearsay evidence and failed to adequately prepare and present mitigation evidence; and that he was denied effective assistance of counsel on appeal, because counsel failed to assert claims based on trial counsel's conflict of interest and wrongful admission of hearsay evidence at trial. For the reasons that follow, we conclude that none of the claims warrants habeas relief and we therefore affirm the judgment of the district court.

Jonathan Hirsch v. CSX Transportation Inc. (Sept. 8, 2011)(Appeal from N.D. OH)
http://www.ca6.uscourts.gov/opinions.pdf/11a0258p-06.pdf

Following a train crash that allegedly exposed a small town to cancer-causing agents, the Plaintiffs-Appellants sought damages on behalf of a putative class. The district court granted summary judgment for the train company, CSX Transportation (CSX), because the Plaintiffs had not established general or specific causation and, as a matter of law, any increased risk of cancer or other diseases was too insignificant to warrant the court's ordering a lengthy period of medical monitoring. We affirm.

Darryl Thompson v. Michael Grida (Sept. 8,2011)(Appeal from N.D. OH)
http://www.ca6.uscourts.gov/opinions.pdf/11a0261p-06.pdf

In this civil-rights action, Darryl Thompson alleges he was arrested without probable cause and the arresting officers used excessive force. Police officers Roose, Shuburt, Olszewski, and Kelly appeal the district court's denial of their motion for summary judgment on qualified immunity grounds. Because the officers rely entirely on disputed facts in their appeal, we DISMISS the appeal for lack of jurisdiction and REMAND for trial.

Titan Tire Corp. of Bryan v. United Steelworkers of America (Sept. 9,2011)(Appeal from N.D. OH)
http://www.ca6.uscourts.gov/opinions.pdf/11a0262p-06.pdf

Plaintiff-Appellant Titan Tire Corporation of Bryan appeals from the district court's summary judgment in favor of Defendant-Appellee United Steelworkers of America, Local 890L. Titan challenges the district court's refusal to vacate a labor arbitration award finding that Titan lacked just cause to terminate Linda Tracy, a Titan employee and Union member. For the following reasons, we AFFIRM the judgment of the district court.

Dian Sabo v. City of Mentor (Sept. 12,2011)(Appeal from N.D. OH)
http://www.ca6.uscourts.gov/opinions.pdf/11a0264p-06.pdf

Plaintiff-Appellee Dian Sabo filed this action against Defendant City of Mentor and Defendant-Appellant Mentor Police Officer Scott Tkach for violations of state and federal rights after Tkach shot and killed her husband, Richard Sabo, outside the Sabo residence. Tkach appeals the district court's denial of qualified immunity. Because genuine issues of material fact preclude summary judgment in this case, we DISMISS Tkach's appeal of the denial of qualified immunity for lack of jurisdiction and AFFIRM the denial of state statutory immunity.

Bobby Sheppard v. Margaret Bagley (Sept. 13,2011)(Appeal from S.D. OH)
http://www.ca6.uscourts.gov/opinions.pdf/11a0265p-06.pdf

Sixteen years ago, an Ohio jury convicted Bobby Sheppard of aggravated murder and sentenced him to death. He now asks us to grant him a writ of habeas corpus ordering the state of Ohio to redo the penalty phase of his trial. The district court denied Sheppard's petition. We affirm.

USA v. Gary Dudeck, Jr. (Sept. 14,2011)(Appeal from N.D. OH)
http://www.ca6.uscourts.gov/opinions.pdf/11a0266p-06.pdf

Defendant-Appellant Gary J. Dudeck, Jr. ("Dudeck") pled guilty to a three-count indictment charging him with receipt of visual depictions of minors engaged in sexually explicit conduct, receipt and/or distribution of child pornography, and possession of child pornography. The district court imposed concurrent terms of imprisonment on each of the three counts charged in the indictment. Dudeck appeals and asserts that double jeopardy precludes convictions for all three counts. Dudeck also appeals his sentence and contends that the 120-month sentence he received for each conviction was unreasonable and greater than necessary to comply with 18 U.S.C. § 3553(a). Possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B) is a lesser-included offense of receipt of child pornography under 18 U.S.C. § 2252A(a)(2)(A). It is unclear whether Dudeck's two convictions under 18 U.S.C. §§ 2252(a)(2) and 2252A(a)(2)(A) were based on receiving the same images. Nevertheless, it is possible that separate conduct or images underlie each of Dudeck's convictions. Therefore, the case is REMANDED for a determination by the district court whether separate acts or conduct underlie Dudeck's convictions for receipt and possession as to each of the three convictions.

U.S. Sixth Circuit Court of Appeals: Other States Cases: PT Pukuafu Indah v. United States Securities and E (Sept. 6, 2011)(Appeal from E.D. MI)
http://www.ca6.uscourts.gov/opinions.pdf/11a0256p-06.pdf; The plaintiffs in this case believe that they have an ownership interest in several mines in Indonesia. In pursuit of these interests, they have filed several lawsuits against the Newmont Mining Corporation ("Newmont") and others in both state and federal courts in the past ten years. Each of these lawsuits was found to be completely lacking in merit, however, and sanctions were imposed on the plaintiffs in two of these prior lawsuits. The present appeals are from a lawsuit that plaintiffs filed against Newmont and other entities on March 13, 2009. The district court dismissed all claims against all of the defendants under Federal Rule of Civil Procedure 12(b). Nonetheless, the plaintiffs filed several motions for reconsideration and relief from judgment, every one of which was denied. Eventually, Newmont filed a motion for sanctions under Rule 11, which the district court granted. The district court ordered that the plaintiffs and their counsel, Steven W. Reifman, pay over $100,000 to Newmont for its attorney fees and costs in defending against the entire lawsuit, and the court enjoined the plaintiffs and Reifman from ever filing another lawsuit arising out of the subject matter of this case in any state or federal court. The plaintiffs now appeal. For the reasons that follow, we AFFIRM the dismissal of all claims against all defendants by the district court, along with the district court's denial of the plaintiffs' motion for reconsideration. With respect to the imposition of sanctions, we hold that the district court erred in its finding of a Rule 11 violation; we therefore REVERSE the district court's sanctions holding, VACATE the order of monetary and injunctive sanctions, and REMAND this case to the district court to consider Newmont's motion for Rule 11 sanctions anew in light of this opinion.

Richard Atkinson v. Morgan Asset Management, Inc. (Sept. 8,2011)(Appeal from W.D. TN)
http://www.ca6.uscourts.gov/opinions.pdf/11a0259p-06.pdf; Mutual-fund shareholders brought a state-law class action against various fund affiliates. The district court held that the Securities Litigation Uniform Standards Act of 1998 (SLUSA), Pub. L. No. 105-353, 112 Stat. 3227, bars Plaintiffs' claims, and so do we.

John Shewchun v. Eric Holder, Jr. (Sept. 8, 2011)(Appeal from Board of Immigration)
http://www.ca6.uscourts.gov/opinions.pdf/11a0260p-06.pdf; John Shewchun petitions this court for review of the Board of Immigration Appeals' (BIA's) dismissal of his appeal from the immigration judge's (IJ's) order of removal. Although Shewchun raised a number of substantive issues on appeal to the BIA, he presents only one of those issues to us: whether the IJ and the BIA erred in rejecting his claim that his removal proceedings should be terminated based on his prima facie eligibility for naturalization under 8 C.F.R. § 1239.2(f). In addition, Shewchun asks us to review the following two procedural due process issues: (1) whether he is entitled to relief because he did not receive a final copy of the IJ's oral decision, and (2) whether the IJ should have recused herself based on her prior role as Chief Counsel in the Detroit District for Immigration and Customs Enforcement (ICE). Shewchun has also filed a motion to correct the administrative record in connection with his claim that he did not receive a proper transcript of the IJ's oral decision and a separate motion asking us to take judicial notice of various items that he claims support his argument. Assuming without deciding that we should take judicial notice of the facts that Shewchun has brought to our attention, we nevertheless DENY Shewchun's petition for review and DENY his motion to correct the administrative record.

USA v. Pamela Holder (Sept. 12,2011)(Appeal from M.D. TN)
http://www.ca6.uscourts.gov/opinions.pdf/11a0263p-06.pdf; On April 13, 2009, Defendant Pam Holder was convicted by a jury of two counts of bank fraud under 18 U.S.C. § 1344 and two counts of wire fraud under 18 U.S.C. § 1343 in the United States District Court for the Middle District of Tennessee. Holder appeals the district court's denial of her motion for new trial, arguing (1) prosecutorial misconduct under Brady v. Maryland, 373 U.S. 83 (1963), and (2) ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). For the reasons that follow, we AFFIRM the district court's denial of Holder's motion for a new trial.

Maria Arnold v. James Wilder (Sept. 14, 2011)(Appeal from W.D. KY)
http://www.ca6.uscourts.gov/opinions.pdf/11a0267p-06.pdf; Plaintiff Maria Arnold (Arnold) appeals the district court's grant of defendants-appellees James Wilder's (Wilder) and the City of Strathmoor Village's (Strathmoor) (collectively, defendants) motion for remittitur of the jury's punitive-damages award. Arnold's daughter, Caroline Arnold (Caroline), appeals the district court's grant of judgment as a matter of law dismissing her intentional infliction of emotional distress (IIED) claim. Wilder and Strathmoor crossappeal, arguing that the district court erred in denying their motion for alternative or cumulative post-trial relief with respect to Arnold's claims of false arrest and malicious prosecution and certain evidentiary rulings. We AFFIRM in part, MODIFY the district court's reduction of the punitive-damages award and REMAND for entry of judgment consistent with this opinion.

Mark Storey v. Douglas Vasbinder (Sept. 16, 2011)(Appeal from E.D. MI)
http://www.ca6.uscourts.gov/opinions.pdf/11a0268p-06.pdf; Mark Storey's principal argument in his federal habeas petition is that he should get a new trial because his lawyer in his first trial was ineffective. It is common ground in this case that Storey's trial lawyer did a poor job. But the Supreme Court has gone out of its way to make clear that, in order to obtain a new trial on ineffective-assistance grounds, the petitioner must do more than show that he had a bad lawyer-even a really bad one. Instead, the petitioner must also show prejudice, which means he must show a reasonable likelihood that his lawyer's bad performance made a difference in the outcome of his trial. The Court's precedents make clear that the former showing by no means leads inevitably to the latter. Whether a petitioner can show prejudice depends in large part on the evidence in the case. The evidence here included the testimony of three witnesses who testified that, on separate occasions, Storey had boasted to them about killing Nathan Wilson. There is little likelihood that even an effective defense lawyer could have overcome that testimony, if indeed the trier of fact found it credible. The trial judge who watched each of these witnesses testify specifically found their testimony to be credible on this point. Another trial judge who watched two of these witnesses change their testimony, in a hearing over a decade later, specifically found their recantations not to be credible. And so, in the end, Storey's petition asks us to set aside the credibility determinations of the two judges who watched these witnesses testify first-hand, in favor of contrary credibility determinations of our own. The record provides us with no basis to take that extraordinary step in this case. We therefore affirm the district court's denial of the writ.

Law Blog