Justia U.S. 10th Circuit Court of Appeals Opinion Summaries

Plaintiff-Appellant Kelli Mike was an employee of Leisure Village Health Care Center. Leisure Village obtained a urine sample from Plaintiff and submitted it to Defendant-Appellee Professional Clinical Laboratory, Inc. (ProLab) for processing. Plaintiff's test results came back positive for marijuana. Leisure Village reported the results to the Oklahoma Board of Nursing (the Board). The Board placed Plaintiff's nursing license on probation and later revoked it. Plaintiff filed a complaint in federal court alleging that ProLab violated the Oklahoma Standards for Workplace Drug and Alcohol Testing Act (Okla. Stat. Ann. tit. 40 sec. 551-565 (West 2011)), and committed gross negligence during the drug-testing process. The district court granted summary judgment to ProLab after concluding that the civil remedy provision in the Testing Act did not apply to testing facilities and that Plaintiff failed to establish that ProLab committed gross negligence. Upon review of the trial court record, the Tenth Circuit found that a rational jury could conclude that ProLab was aware that Leisure Village previously disregarded the limits of its contract by requesting ProLab to perform an unauthorized employee drug screen, and also was aware that Leisure Village disregarded the collection procedures for forensic drug testing outlined in the Testing Act. The Court found that ProLab was not entitled to judgment as a matter of law on the question of causation because the foreseeability of any intervening causes was a question of fact for a jury to resolve. Because the district court resolved this claim on the causation element, which involved disputed issues of fact, summary judgment was improper. The Court affirmed the district court's judgment in favor of ProLab on the Testing Act claim, but reversed the district court's judgment on the gross negligence claim. The case was remanded for further proceedings.

Okmulgee Inn Venture, LLC (Okmulgee) leased space to a nightclub-bar and was a named insured on a liquor liability insurance policy. Okmulgee’s insurer, Mount Vernon Fire Insurance Company (Mt. Vernon), assumed a duty to defend Okmulgee against suits seeking damages for injuries covered by the policy. In 2006, three bar patrons sustained gunshot wounds during a fight at the nightclub and sued Okmulgee, alleging, among other things, that Okmulgee failed to ensure the safety of the bar’s patrons, properly train the bar's staff, or investigate the bar’s operator. The only specific allegations pertaining to alcohol were that two of the three victims were under-age but were admitted to the bar and served alcohol. Mt. Vernon refused to defend Okmulgee in these suits. Mt. Vernon asserted there was no coverage under the policy, and thus no duty to defend or indemnify, because the allegations did not indicate the injuries were caused by the selling, serving, or furnishing of alcoholic beverages. Mt. Vernon then initiated this declaratory judgment action to determine its obligations. On cross motions for summary judgment, the district court ruled in favor of Mt. Vernon. Okmulgee insisted Mt. Vernon owed it a duty to defend because the facts showed that coverage was provided by the policy. Because the victims had yet to establish Okmulgee’s liability for any claims, the Tenth Circuit concluded after its review that the question of Mt. Vernon’s duty of indemnification was not ripe for adjudication. Mt. Vernon is obligated to defend its insured, and Okmulgee was entitled to summary judgment on the duty-of-defense issue.

Pro se prisoner Petitioner Efrem Harris sought to appeal a district court's dismissal of his post-judgment motions for lack of jurisdiction, and its denial of his Fed. R. Civ. P. 59(e) motion to alter or amend that dismissal. He petitioned the Tenth Circuit for a certificate of appealability (COA). In 2003, Petitioner was sentenced to life imprisonment for drug-trafficking offenses. He pursued a direct appeal and simultaneously filed his motion for post-conviction relief. At the time he prepared the motion, however, he did not realize the significance of the facts and so did not plead that constitutional claim. Therefore, he sought to reopen the judgment and amend his original post-conviction motion to include the claim, and to have the amended motion relate back to the original motion. The district court concluded that the motions attempted to assert unauthorized second or successive post-conviction relief claims, over which the court lacked jurisdiction to consider and therefore dismissed. Upon review, the Tenth Circuit found the district court did not err in its decisions, therefore the Court dismissed Petitioner's request for a COA and dismissed his appeal.

Petitioner Joel Ruelas-Rios sought judicial review of the Department of Homeland Security's (DHS) order that reinstated his prior removal order. Petitioner is a native and citizen of Mexico. He applied for admission to the United States in 1998 by falsely representing himself as a lawful permanent resident of the United States. Petitioner presented another person’s valid Resident Alien Card at the border. Petitioner was removed that same day under expedited procedures. In 2011, Petitioner was detained in Kansas while attempting to enter McConnell Air Force Base to perform work as a contractor. DHS issued Petitioner notice of its intent to reinstate his prior removal order as an alien who illegally reentered the United States after having been previously removed. Petitioner petitioned for review of DHS's reinstatement order, raising a single contention: whether reinstatement of a prior removal order, without providing the alien a hearing before an immigration judge, is a violation of due process when the alien was also denied a hearing in connection with the prior removal order and had been in the United States for an extended period of time. Because Petitioner failed to establish any prejudice as a result of not being afforded a hearing before an immigration judge, his due process claim failed. The Tenth Circuit denied Petitioner's request for review.

Pro se prisoner Petitioner-Appellant Tracy Neiberger sought a certificate of appealability (COA) to challenge the district court's denial of his petition for habeas relief. Petitioner pled guilty to four counts of armed robbery in 1984. Petitioner did not file a motion to withdraw his plea, nor did he perfect a certiorari appeal to the Oklahoma Court of Criminal Appeals (OCCA). In fact, he did not take any action challenging the validity of his convictions until February 26, 2010. On that date, he filed a petition in state district court collaterally attacking his convictions and "alleging several propositions of error which he [claimed] entitled him to have his judgments and sentences vacated." The OCCA found "no plausible explanation” for Petitioner's twenty-five-year delay in challenging his convictions and guilty plea. Petitioner then filed his habeas petition, arguing he was denied effective assistance of counsel, that he was deprived due process and equal protection, and that the state district court imposed an unauthorized fine. The district court denied Petitioner's petition. Finding no error in the district court's holding, the Tenth Circuit denied Petitioner's application for a COA and dismissed his appeal.

Pro se prisoner Petitioner Terry Tyler appealed an order that dismissed his habeas petition for lack of jurisdiction. Petitioner filed his petition asserting that the Bureau of Prisons erroneously denied his request for pre-release transfer to a residential re-entry center. The district court granted the government’s motion to dismiss for lack of jurisdiction, noting that at the time he filed the petition, Petitioner was detained in a federal prison facility in Virginia. The Tenth Circuit found that the district court's conclusion was indisputably correct, and affirmed the order of dismissal.

Pro se prisoner Petitioner Victor Rose sought a certificate of appealability (COA) to challenge a district court's denial of his petition for habeas relief. Petitioner argued his guilty plea was invalid, and his counsel ineffective. Petitioner pled guilty to second-degree burglary on June 13, 2007 and was sentenced to fifteen years imprisonment. The district court concluded his petition was untimely and there was no basis for equitable tolling. Because that decision was not even debatably incorrect, the Tenth Circuit denied his request for a COA and dismissed his appeal.

Pro se Defendant-Appellant Carlos Armendariz sought a certificate of appealability (COA) to challenge a district court's denial of his habeas petition. After a two-day trial, a jury convicted Defendant of possessing more than five pounds of cocaine with intent to distribute and of conspiracy. He received a sentence of 324 months' imprisonment. The Tenth Circuit affirmed his conviction on appeal. Defendant's habeas petition was initially reviewed by a magistrate judge, who construed it as raising two claims: (1) ineffective assistance of trial counsel; and (2) alleged error in the trial court’s replacement of a sworn juror with an alternate. The magistrate judge recommended that the petition be denied because Defendant procedurally defaulted on the juror claim and his pleadings lacked the specificity required to establish that his counsel was deficient. In his application for a COA, Defendant attempted to flesh out his ineffective assistance of counsel claim with additional facts. He did not address his second claim concerning the replaced juror. Upon careful review, the Tenth Circuit concluded Defendant did not make a substantial showing that he was denied his constitutional rights. Accordingly, the Court denied Defendant's request for a COA and dismissed his appeal.

Defendant-Appellant Brian Jones appealed a district court's revocation of his probation and the imposition of a thirty-three month term of imprisonment. Defendant's counsel filed an "Anders" brief, asserting he could find no meritorious basis for appeal and simultaneously moved to withdraw as counsel. In 2004, the government charged Defendant with possession of child pornography. The parties negotiated a plea deal with a five-year term of probation. In 2006, the district court accepted the plea agreement and sentenced Defendant, and imposed several special conditions of supervision he was required to comply with during his term of probation. In 2009, the probation office discovered Defendant had violated at least four of the special conditions in the district court’s judgment. Instead of revoking his probation, the district court held the matter in abeyance pending Defendant's completion of two in-patient treatment programs, one in California and one in Arizona. Defendant completed the program in California, but left the Arizona program prior to completing treatment. The district court afforded Defendant the opportunity to enroll in another treatment program, but Defendant failed to do so in a timely manner. In 2010, after a lengthy hearing on the matter, the district court granted the government's petition and revoked Defendant's probation. The court then sentenced him to thirty-three months' imprisonment, followed by a term of supervised release. Defendant directed his appellate counsel to contend the thirty-three month sentence imposed by the district court was unreasonably long. The Tenth Circuit agreed, as was recognized by counsel, that Defendant's challenge to the substantive reasonableness of his sentence was "undeniably meritless." The Court granted counsel's motion to withdraw, and dismissed Defendant's appeal.

Pro se prisoner Petitioner Ramon Montano appealed a district court's dismissal of his petition for writ of audita querela under the All Writs Act. The district court dismissed Petitioner's motion for Rule 52(b) relief and petition for a writ of audita querela as subsumed by 28 U.S.C. 2255. Petitioner was convicted of various federal drug offenses and sentenced to 30 years' incarceration in 1997. The district court did not recharacterize the petition as arising under 2255 because such a petition likely would have been time-barred. Petitioner argued his sentence (issued under mandatory guidelines) was unconstitutional. Upon review, the Tenth Circuit found that the writ of audita querela was unavailable to Petitioner if he challenged his sentence under 22 U.S.C. 2255, but then argued to the Court that there was no adequate statutory remedy available to him. In his brief, Petitioner did not explain why 2255 was insufficient. "Merely because such relief maybe time-barred does not render 2255 inadequate or unavailable." The Court affirmed the district court in dismissing Petitioner's petition.