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In 2011, Defendant Marconia Green pleaded guilty to three counts of using a communication facility to facilitate the acquisition of cocaine powder. The district court sentenced him to 130 months’ imprisonment. Three years after Defendant’s sentencing, the U.S. Sentencing Commission promulgated Amendment 782, which reduced the base offense levels assigned to certain drug offenses by two levels. Invoking this amendment, Defendant filed a motion to reduce his sentence under 18 U.S.C 3582(c)(2). The district court denied the motion, and the Tenth Circuit Court of Appeals affirmed. Over a year later, Defendant filed another motion to reduce his sentence, again citing Amendment 782. The district court also denied this second motion. Defendant appealed the denial, arguing the district court abused its discretion in not considering all the facts and circumstances of his case. Finding no reversible error, the Tenth Circuit again affirmed. View "United States v. Green" on Justia Law

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Death row Oklahoma prisoner, petitioner Donald Grant sought habeas relief. In 2001, he was convicted with two counts of first degree murder and two counts of robbery with a firearm for the murders of Brenda McElyea and Suzette Smith during the robbery of the La Quinta Inn in Del City, Oklahoma. With respect to the murder counts, the State sought the death penalty. It charged several aggravating circumstances to support its request. In October 2012, Grant filed this instant 28 U.S.C. 2254 petition with the United States District Court for the Western District of Oklahoma, raising numerous propositions of error, five of which are relevant here: (1) he argued he was denied procedural due process because the trial court failed to hold a second competency hearing in response to Grant’s alleged manifestations of incompetence leading up to and during trial; (2) he raised several ineffective-assistance-of-counsel claims relating to trial counsel’s failures to investigate and present evidence regarding his competence and other mitigating circumstances; (3) he challenged the constitutionality of a jury instruction and related prosecutorial statements concerning mitigation evidence; (4) Grant raised a constitutional challenge to the peremptory strike of a potential juror on the basis of race; and (5) Grant argued that he was prejudiced by cumulative error. The district court denied Grant’s petition and granted a COA on the single issue of procedural competency. Grant moved the trial court to expand his certificate of appealability (COA). The Tenth Circuit concluded after review of the facts of this case, "no reasonable jurist could debate the correctness of the district court’s decision to deny Mr. Grant a COA regarding the exclusion of the Grundy Reports and the other expert reports, or deem the matter one that was worthy of encouragement to proceed further. Accordingly, we deny Mr. Grant’s motion to expand the COA." View "Grant v. Royal" on Justia Law

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This appeal stemmed from a dispute between Summit Park Townhome Association and its insurer, Auto-Owners Insurance Company, over the value of property damaged in a hail storm. To determine the value, the district court ordered an appraisal and established procedural requirements governing the selection of impartial appraisers. After the appraisal was completed, Auto-Owners paid the appraised amount to Summit Park. But the court found that Summit Park had failed to make required disclosures and had selected a biased appraiser. In light of this finding, the court vacated the appraisal award, dismissed Summit Park’s counterclaims with prejudice, and awarded interest to Auto-Owners on the amount earlier paid to Summit Park. Summit Park appealed, raising six issues of alleged error with the proceedings. The Tenth Circuit affirmed, however, finding that in the absence of a successful appellate challenge to the disclosure order, Summit Park was obligated to comply and did not. The court was thus justified in dismissing Summit Park’s counterclaims. In addition, Summit Park’s failure to select an impartial appraiser compelled vacatur of the appraisal award under the insurance policy. View "Auto-Owners v. Summit Park" on Justia Law

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William Harris and David Pettinato were two attorneys who represented Summit Park Townhome Association who represented Summit Park in a lawsuit against its insurer. The two attorneys were sanctioned for failing to disclose information. The Tenth Circuit affirmed sanctions against them, finding that regardless of whether the district court had authority to require the disclosures, the attorneys were obligated to comply. They did not, and the district court acted reasonably in issuing sanctions, determining the scope of the sanctions, and calculating the amount of the sanctions. View "Auto-Owners Insurance Co. v. Summit Park Townhome Assoc." on Justia Law

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This appeal grew out of a dispute between an insured (Summit Park Townhome Association) and its insurer (Auto-Owners Insurance Company) over the value of property damaged in a hail storm. To determine the value, the district court ordered an appraisal and established procedural requirements governing the selection of impartial appraisers. After the appraisal was completed, Auto-Owners paid the appraised amount to Summit Park. But the court found that Summit Park had failed to make required disclosures and had selected a biased appraiser. In light of this finding, the court vacated the appraisal award, dismissed Summit Park’s counterclaims with prejudice, and awarded interest to Auto-Owners on the amount earlier paid to Summit Park. Summit Park appealed, but the Tenth Circuit affirmed. “In the absence of a successful appellate challenge to the disclosure order, Summit Park was obligated to comply and did not. The court was thus justified in dismissing Summit Park’s counterclaims. In addition, Summit Park’s failure to select an impartial appraiser compelled vacatur of the appraisal award under the insurance policy. Finally, Summit Park obtained due process through the opportunity to object to the award of interest.” View "Auto-Owners v. Summit Park" on Justia Law

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William Harris and David Pettinato were attorneys who represented Summit Park Townhome Association. While representing Summit Park against its insurer, the two attorneys were sanctioned for failing to disclose information. In this appeal, the attorneys raised five arguments to challenge the sanctions. After review, the Tenth Circuit affirmed: “Regardless of whether the district court had authority to require the disclosures, the attorneys were obligated to comply. They did not, and the district court acted reasonably in issuing sanctions, determining the scope of the sanctions, and calculating the amount of the sanctions.” View "Auto-Owners Insurance Co. v. Summit Park Townhome Assoc." on Justia Law

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This appeal arose out of a private enforcement action under Section 505 of the Clean Water Act (CWA), 33 U.S.C. 1365. Defendant-Appellant Ozark Materials River Rock, LLC, appealed a district court’s order approving Plaintiff-Appellee David Benham’s proposed restoration plan of unlawfully filled wetlands in Saline Creek. Ozark was a sand and gravel mining company that operated on property adjacent to Saline Creek in Oklahoma. Benham recreates in Saline Creek and claimed Ozark’s operations degraded his ability to do so. In March 2011, Benham served Ozark with a notice letter pursuant to Section 505, informing the company that it was violating Section 404 of the CWA, 33 U.S.C. 1344. Section 404 required a permit from the Army Corps of Engineers to discharge dredge or fill material into navigable waters if the activity disturbed more than one-half acre of wetland, and Ozark did not have a Section 404 permit. The Army Corps of Engineers had inspected Ozark’s operations in 2010 (again in 2012 and 2013) by driving through the property, but it found no CWA violations. Nevertheless, after receiving Benham’s notice, Ozark hired an environmental consulting firm to perform a Section 404 impact analysis of Ozark’s Saline Creek operations. By June 1, 2011, Ozark had not addressed the CWA violations that Benham alleged in his notice, so he filed the underlying citizen suit, as authorized by Section 505. The district court held a bench trial and found that Ozark’s construction of a roadway in Saline Creek and the filling of its surrounding wetlands without a permit constitute a continuing violation of the CWA. The district court imposed a civil penalty of $35,000 and ordered briefing on a restoration plan for the unlawfully filled wetlands. On June 1, 2017, the district court issued an order adopting (substantially all of) Benham’s proposed restoration plan; one element of the plan created a conservation easement for the restoration site. Ozark raised several issues on appeal challenging the district court’s order and underlying findings of fact and conclusions of law. But finding no reversible error, the Tenth Circuit affirmed the district court. View "Benham v. Ozark Materials River Rock" on Justia Law

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At issue here was Utah State Bill SB54, the Utah Elections Amendments Act of 2014 (“SB54”) which reorganized the process for qualifying for a primary ballot in Utah, most importantly, by providing an alternative signature-gathering path to the primary election ballot for candidates who were unable or unwilling to gain approval from the central party nominating conventions. Prior to the passage of SB54, the Utah Republican Party (“URP”) selected its candidates for primary elections exclusively through its state nominating convention, and preferred to keep that process. In this litigation, the URP sued Utah Lieutenant Governor Spencer Cox in his official capacity (“the State”), alleging that two aspects of SB54 violated the URP’s freedom of association under the First Amendment, as applied to the States by the Fourteenth Amendment. The two challenged sections: (1) required parties to allow candidates to qualify for the primary ballot through either the nominating convention or by gathering signatures, or both (the “Either or Both Provision”); and (2) required candidates pursuing the primary ballot in State House and State Senate elections through a signature gathering method to collect a set number of signatures (the “Signature Requirement”). In two separate orders, the United States District Court for the District of Utah balanced the URP’s First Amendment right of association against the State’s interest in managing and regulating elections, and rejected the URP’s claims. Re-conducting that balancing de novo on appeal, the Tenth Circuit Court of Appeals affirmed the district court. View "Utah Republican Party v. Cox" on Justia Law

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Abraham Gonzalez-Alarcon filed a habeas petition alleging specific facts which, if proven, would have demonstrated he was a United States citizen. He sought release from custody from Immigration and Customs Enforcement (“ICE”) following ICE’s reinstatement of a prior order of removal on that basis. Dismissing Gonzalez-Alarcon’s petition, the district court concluded that he was required to exhaust administrative remedies, jurisdiction was barred by the REAL ID Act, and the petition for review process was an adequate substitute for habeas such that the REAL ID Act’s jurisdiction-stripping provisions do not offend the Suspension Clause. After review, the Tenth Circuit concluded the exhaustion provision at issue did not govern facially valid citizenship claims; that subsection applies only to aliens. And because district courts had jurisdiction to determine their own jurisdiction, the Tenth Circuit held a court must first consider whether a petitioner was in fact an alien before requiring exhaustion. Furthermore, the Court held the REAL ID Act’s jurisdiction-stripping provisions raised serious Suspension Clause concerns in one limited context: with respect to a United States citizen subject to a reinstated order of removal for whom the deadline to seek judicial review has passed, the REAL ID Act appeared to bar federal court review. “These restrictions would effectively strip citizenship from those who do not clear various procedural hurdles. Citizenship cannot be relinquished through mere neglect. . . . and ‘[t]he very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.’” Under the Suspension Clause, the Tenth Circuit held Gonzalez-Alarcon had to be granted some path to advance his facially valid claim of citizenship in federal court. Before permitting Gonzalez-Alarcon to proceed under the Great Writ, however, he should first attempt to obtain review of his citizenship claim through the REAL ID Act. View "Gonzalez-Alarcon v. Macias" on Justia Law

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Petitioner Paulo Afamasaga was a native and citizen of Samoa who entered the United States on a nonimmigrant tourist visa and remained beyond the date authorized. After he pleaded guilty to making a false statement when applying for an American passport, the Department of Homeland Security (DHS) initiated removal proceedings against him. Petitioner applied for cancellation of removal under 8 U.S.C. 1229b, but the immigration judge (IJ) deemed him ineligible on the ground that violating Section 1542 was a crime involving moral turpitude (CIMT) under the Immigration and Nationality Act (INA). The Board of Immigration Appeals (BIA) agreed and dismissed his appeal. “Exercising jurisdiction to review questions of law decided in BIA removal orders (see Flores-Molina v. Sessions, 850 F.3d 1150 (10th Cir. 2017)), the Tenth Circuit upheld the BIA’s determination that petitioner was not eligible for cancellation of removal. View "Afamasaga v. Sessions" on Justia Law