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 or 2006.

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Jan. 8th - 13th, 2009

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

TOPICS:
- Juvenile / Sentencing / Serious-youthful-offender disposition
- Due Process Clause / Liberty interest  / Name-clearing / Qualified immunity
- Child Pornography Protection Act / Fair trial / Miranda / Sentencing
- Bankruptcy / Chapter 13 provisions / Mandatory vs. Discretionary
- Miranda rights / Suppression of statements
- Legal Malpractice / Uniform Commercial Code
- Habeas corpus petition
- Search - probable cause / Evidence - sufficiency / Jury Instructions
- Sentencing Guidelines / Armed career criminal
- Sentencing Guidelines / Evidence / Voir Dire
- Sentencing / Supervised release term
- Bankruptcy / Security interest / Fraudulent transfer
 

Ohio Supreme Court

 

State v. D.H. (Slip Opinion)(Jan. 8, 2009)(2009-Ohio-9)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-9.pdf
-  Juvenile courts * Blended sentencing * Requiring a juvenile judge to consider certain factors before imposing a blended sentence does not violate the juvenile’s right to a jury trial * A judge’s imposing a stayed adult sentence upon a serious youthful offender that is greater than the minimum adult sentence for a third-degree felony does not violate the juvenile’s right to a jury trial.
 

First District Court of Appeals

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No Opinions.
 

U.S. Sixth Circuit Court of Appeals:  Ohio Cases

 

Jay Gunasekera v. Dennis Irwin (Jan. 8, 2009) (Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0005p-06.pdf
-  Jay S. Gunasekera (“Gunasekera”) appeals the District Court’s grant of dismissal under Federal Rule of Civil Procedure 12(b)(6) to Dennis Irwin and Kathy Krendl (“Irwin” and “Krendl”), of his 42 U.S.C. § 1983 claims that Irwin and Krendl deprived him of his property and liberty in violation of the Due Process Clause of the Fourteenth Amendment. U.S. Const. amend. XIV, § 1, cl. 3. On appeal, Gunasekera argues that this dismissal should be reversed because: (1) the name-clearing hearing he was offered was not public and was therefore inadequate; (2) he has a property interest in his Graduate Faculty status and was denied notice and an opportunity to be heard when that status was suspended; and (3) any determination of whether his constitutional rights were clearly established to defeat the defendants’ qualified immunity defense must wait until a factual record has been developed. We hold that Gunasekera has made an adequate allegation that he was not offered a sufficient name-clearing hearing to protect his liberty interest and that he was deprived of his property interest in his Graduate Faculty status without the required notice and opportunity to be heard to withstand dismissal pursuant to Rule 12(b)(6). Accordingly, we REVERSE the district court’s judgment granting the dismissal of Gunasekera’s property-based claims. We REVERSE the district court’s judgment that Gunasekera was not entitled to a public name-clearing hearing and REMAND for further proceedings consistent with this opinion. We AFFIRM the district court’s judgment granting the dismissal of Gunasekera’s liberty-based claims seeking civil damages because we conclude that Irwin and Krendl have qualified immunity with respect to these liberty-based damages claims.
 
Murphy v. State of Ohio (Jan. 8, 2009) (Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0007p-06.pdf
-  Petitioner-Appellant Joseph D. Murphy (“Murphy”) seeks habeas relief from his conviction and death sentence for the murder and robbery of his elderly neighbor, Ruth Predmore. He appeals from a federal district court opinion and order denying both his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 and his motion to alter or amend the district court’s judgment. Murphy v. Ohio, No. 3:96-cv-7244, 2006 WL 3057964 (N.D. Ohio Sept. 29, 2006) (denying petitioner’s habeas claims but certifying his Atkins claim for appeal); Murphy v. Ohio, No. 3:96-cv-7244 (N.D. Ohio Nov. 9, 2000) (Doc. No. 136) (denying petitioner’s motion to alter or amend judgment). The district court certified four claims for appellate review. Because we conclude that these claims are without merit, we AFFIRM the district court’s denial of Murphy’s petition for habeas relief.
 
USA v. Paull (Jan. 9, 2009) (Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0008p-06.pdf
-  Jerry Paull was convicted pursuant to a conditional plea agreement on four counts of knowing possession of child pornography under the Child Pornography Protection Act, 18 U.S.C. § 2252 et seq. and sentenced to imprisonment for 210 months. He now appeals both his conviction and sentence. He claims that the district court ruled improperly on a variety of pre-trial motions, including his motions to suppress for violations of his Fourth Amendment and Miranda rights, and his motions to dismiss the indictment because the statute is void for vagueness and because it deprived him of a fair trial. He also appeals his sentence, claiming that the district court incorrectly calculated his guideline range and abused its discretion in failing to vary downward in light of his efforts at rehabilitation and his poor health. For the reasons discussed below we affirm Paull’s conviction and his sentence.
 
Fannie Shaw v. Aurgroup Fin'l Credit Union (Jan. 9, 2009) (Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0010p-06.pdf
-  Debtor-petitioner Fannie L. Shaw appeals the district court’s order affirming the bankruptcy court’s decision denying confirmation of her Chapter 13 plan. Shaw concedes that her proposed plan did not satisfy the provisions of 11 U.S.C. § 1325(a) but contends that the bankruptcy court could, nevertheless, have exercised discretion and confirmed the plan if it was fair and equitable. The bankruptcy and district courts held that a plan which does not satisfy the provisions in § 1325(a) cannot be confirmed. The sole question presented on appeal is whether the provisions in § 1325(a) are mandatory or discretionary. Because we hold that the provisions in § 1325(a) are mandatory and that a court has no discretion to confirm a plan which does not comply with its provisions, we affirm.
 
USA v. Jean Panak (Jan. 9, 2009) (Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0011p-06.pdf
-  At issue in this appeal is whether the district court properly granted Jean Panak’s motion to suppress incriminatory statements she gave to two Drug Enforcement Administration (DEA) investigators during an un-Mirandized interview, lasting 45 minutes to an hour, at her home. Because she was not in “custody” during the interview, we reverse.
 
Leonard Pivnick v. White Getgey & Meyer Co. LPA (Jan. 12, 2009) (Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0012p-06.pdf
-  This is a legal malpractice case arising from Leonard Pivnick’s purchase of a thoroughbred horse from Fasig-Tipton Company (FTC) at an auction. Because Pivnick never paid for the horse, FTC eventually repossessed and sold the animal at a private sale. Pivnick argued that the notices he received from FTC regarding his default and the subsequent resale of the horse were not commercially reasonable and thus violated Kentucky’s version of the Uniform Commercial Code. He hired the law firm of White, Getgey & Meyer Co., LPA (WGM) to represent him in a suit against FTC, but WGM failed to prosecute the case that it had filed in state court. This caused the case to be dismissed. Pivnick then sued WGM for legal malpractice in federal court. WGM stipulated to its legal malpractice, but defended on the ground that Pivnick would not have succeeded on the merits in the underlying suit against FTC even if the case had gone forward. The jury returned a verdict in WGM’s favor. For the reasons set forth below, we AFFIRM the judgment of the district court.
 
USA v. Skipper (Jan. 13, 2009) (Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0015p-06.pdf
-  Defendant Tyree Skipper pled guilty to a controlled substance offense and was sentenced to 151 months’ imprisonment. He now appeals his sentence, arguing that he was improperly designated a career offender under the Sentencing Guidelines and that his sentence was otherwise unreasonable. We affirm.
 
Kevin Keith v. David Bobby (Jan. 13, 2009) (Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0016p-06.pdf
-  Kevin Keith moves this court for an order authorizing the district court to consider a second or successive habeas corpus petition under 28 U.S.C. § 2254. Because Keith’s motion does not make a prima facie showing that “no reasonable factfinder would have found the applicant guilty of the underlying offense,” 28 U.S.C. § 2244(b)(2)(B)(ii), we deny the motion.
      

U.S. Sixth Circuit Court of Appeals: Other States Cases

 

USA v. Gunter (Jan. 8, 2009) (Appeal from E.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0006p-06.pdf
-  Michael Charles Gunter appeals his conviction of conspiracy to distribute and possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, of attempt to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2. On direct appeal, Gunter challenges: (1) whether there was probable cause to search his residence; (2) the sufficiency of the evidence supporting his conviction; (3) the admissibility of his prior felony convictions; and (4) the propriety of jury instructions regarding the conspiracy charges. For the reasons that follow, we AFFIRM the judgment of the district court.
 
Duncan v. USA (Jan. 9, 2009) (Appeal from W.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0009p-06.pdf
-  This case presents the question whether the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), applies retroactively on collateral review to sentences imposed before Booker but after the Court decided Blakely v. Washington, 542 U.S. 296 (2004). We hold that it is not retroactive and therefore affirm petitioner Darryl Duncan’s sentence.
 
USA v. Bates (Jan. 12, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0013p-06.pdf
-  Albert Steven Bates and Walter John Bates appeal their convictions for bank robbery and conspiracy to commit bank robbery. Because we find that no reversible error occurred at trial and that both sentences were imposed in a procedurally reasonable manner, we AFFIRM.
 
USA v. Booth (Jan. 12, 2009) (Appeal from E.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0014p-06.pdf
-  George Booth appeals a sentence imposed pursuant to the revocation of his supervised release term. The supervised release term was imposed as part of a criminal sentence for drug-related offenses in the Middle District of Florida. He asserts that the United States District Court for the Eastern District of Tennessee lacked jurisdiction to penalize him for violations of this term of supervised release because in granting the Government’s Rule 35(b) motion for reduction of sentence, the Florida district court had eliminated his term of supervised release by failing to restate the supervised release term of the original sentence in its order granting the motion. He argues that the Eastern District of Tennessee was without jurisdiction to revoke a term of supervised release that did not exist. The appellant bases this argument on both the plain language of the order granting the Rule 35(b) motion and on the rule of lenity. The Government rejects appellant’s interpretation of the Rule 35(b) order and argues that the language of the order leaves the original supervised release term intact. Additionally, the Government contends that the subsequent actions of the Florida district court reveal an intent to impose the original supervised release period. Finally, the Government argues that the appellant’s argument logically “defies acceptance” because of the appellant’s history and offense conduct that were considered by the sentencing judge. Because the language of the motion and order are clear, and because the Florida court’s later actions confirm its intent to retain the supervised release term, we hold that the supervised release term remained in effect and AFFIRM the sentence imposed by the United States District Court for the Eastern District of Tennessee in its Revocation Judgment.
 
In re: Omega Door Co v. (Jan. 13, 2009) (Appeal from U.S. Bankruptcy Court - Youngstown )
-  http://www.ca6.uscourts.gov/opinions.pdf/09b0001p-06.pdf
-  There are three issues on appeal. The first is whether the applicable statutes of limitations barred the trustee’s state and federal fraudulent transfer claims. That issue turns on whether Omega’s payments to the Buonpanes were separate transfers. The second issue is whether Buonpane’s stock purchase was an illegal stock redemption or dividend by Omega. The third is whether Omega’s payments to the Buonpanes in the 90 days prior to bankruptcy were preferential transfers. This issue turns upon whether Buonpane had a valid, perfected security interest in Omega’s assets. The Panel notes that initially, the Buonpanes had also asserted that the payments were not “on account of an antecedent debt.” However, they abandoned that argument during the oral argument. For the reasons stated below, the dismissal of the trustee’s two fraudulent transfer claims is vacated. The dismissal of the illegal stock redemption claim is affirmed. The judgment on the trustee’s preference claim is also affirmed.
 

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