Circuit Watcher

05-10210 Downs v. McNeil
Before BLACK, HULL and WILSON, Circuit Judges.
BLACK, Circuit Judge: Ernest Charles Downs is a prisoner on Florida’s death row. After exhausting his opportunities for state court review, he turned to the federal courts on December 12, 2001, filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court dismissed the petition as untimely because it was filed eight days beyond the one-year limitations period provided by 28 U.S.C. § 2244(d)(1).
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Regardless whether the petition was timely, Downs contends he is entitled to equitable tolling because of egregious conduct by his counsel throughout his postconviction proceedings. In the alternative, Downs argues on appeal that he is entitled to a hearing on the merits of his petition because he has made a colorable showing that he is actually innocent of a capital offense. We conclude the facts he has alleged, if true, would entitle him to equitable tolling for a period equalling, at a minimum, the eight days by which he missed the statutory limitations period. Therefore, we vacate the district court’s dismissal of the petition and remand for an evidentiary hearing on the facts underlying Downs’ request for equitable tolling. … Downs v. McNeil.

07-12387 Rivell v. Private Health Care Sys., Inc.
Before ANDERSON, BLACK and HILL, Circuit Judges.
PER CURIAM: Appellants Dr. William Andrew Rivell and Dr. Alan B. Whitehorse filed this action on behalf of themselves and similarly-situated Georgia physicians. Their amended complaint pleads equitable and legal claims against The Capella Group, Inc., d/b/a/ Care Entree (“Capella”) and Private Health Care Systems (“PHCS”) for appropriation of the doctors’ names and identities to market and sell medical discount cards. On defendants’ motions, the district court dismissed the complaint, holding that the doctors’ sole remedy was on the contract they entered into with defendant PHCS. Because this holding is contrary to Georgia law, we shall reverse. … Rivell v. Private Health Care Sys., Inc.

07-1334 U.S. v. Maupin
Before ANDERSON, BLACK and HULL, Circuit Judges.
PER CURIAM: Todd Maupin appeals his 240-month and 480-month sentences imposed following his guilty plea to two child pornography counts, both in violation of 18 U.S.C. § 2252A. Maupin asserts the district court erred in enhancing his sentences based on its determination that a 1991 nolo contendere plea with adjudication withheld to Florida child pornography charges was a prior conviction warranting a sentencing enhancement under 18 U.S.C. § 2252A(b)(1) and (b)(2). We conclude the district court did not err in enhancing Maupin’s sentences, and affirm. … U.S. v. Maupin.

07-14816 DiMaio v. Democratic Nat’l Comm.
Before TJOFLAT and MARCUS, Circuit Judges, and VINSON,¹ District Judge.
PER CURIAM: This appeal raises a number of interesting and potentially significant questions concerning the impact of the Equal Protection Clause on an individual’s right to vote in a primary election, the extent of the Fourteenth Amendment’s state action requirement, and the associational interests of national political parties. However, because the plaintiff Victor DiMaio undeniably lacks standing to bring this suit, we affirm the district court’s determination that this case is nonjusticiable, construe the district court’s dismissal of the case to be without prejudice and, therefore, dismiss the appeal without prejudice for lack of subject matter jurisdiction. … DiMaio v. Democratic Nat’l Comm.

1. Honorable C. Roger Vinson, United States District Judge for the Northern District of Florida, sitting by designation. [↩]

05-13820 Friedman v. Market St. Mortgage
Before TJOFLAT, FAY and SILER¹, Circuit Judges. TJOFLAT, Circuit Judge:
TJOFLAT, Circuit Judge: In this appeal, Market Street Mortgage Corporation (“Market Street”) contends that the district court erred in certifying a class of persons represented by Edward and Lori Friedman, in which the stated common question of law is whether Market Street violated subsection 8(b) of the Real Estate Settlement Procedures Act of 1974 (“RESPA”), codified at 12 U.S.C. § 2607(b), by requiring loan borrowers to pay an escrow waiver fee for which Market Street had performed no services. Because we find that this class certification order violated the law of the case and because we also hold that subsection 8(b) does not apply to settlement fees that are alleged to be excessive, we reverse the district court’s certification order and remand the case with instructions to dismiss the Friedmans’ complaint with prejudice. … Friedman v. Market St. Mortgage.

1. Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge for the Sixth Circuit, sitting by designation. [↩]

07-11206 Devine v. U.S.
Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.
PER CURIAM: William R. Devine, a federal prisoner, appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence. We granted a certificate of appealability on the following issue: “Whether the district court erred in finding that appellant’s counsel was not deficient for failing to file a direct appeal, in light of Thompson v. United States, 481 F.3d 1297 (11th Cir. 2007).”¹ Devine argues that counsel did not adequately consult with Devine about his appellate rights. Further, Devine argues that he demonstrated an interest in an appeal, and thus counsel had a duty to consult with him regarding an appeal. Finally, he argues that he was prejudiced as a result of counsel failing to consult with him regarding an appeal. …the judgment of the district court is AFFIRMED. Devine v. U.S.

1. After this appeal was taken, this Court sua sponte withdrew the opinion in Thompson and replaced it with another opinion, Thompson v. United States, 504 F.3d 1203 (11th Cir. 2007). [↩]

07-11657 Rioux v. City of Atlanta
Before EDMONDSON, Chief Judge, WILSON, Circuit Judge, and ALTONAGA,¹ District Judge.
ALTONAGA, District Judge: The issues in this appeal, a civil rights action raising claims of race discrimination, are whether the trial court erred in granting summary judgment in favor of Appellees, Defendants below, Lynette Young (“COO Young”) and Dennis L. Rubin (“Rubin”), by misapplying the summary judgment standard to the facts presented and on the basis of Appellees’ qualified immunity. While we agree with Appellant, Plaintiff below, Gerard Rioux (“Rioux”), that he presented a prima facie case of discrimination and showed sufficient evidence of pretext, we find that he has not shown Defendants violated clearly established federal law, and we affirm. … Rioux v. City of Atlanta.

1. Honorable Cecilia M. Altonaga, United States District Judge for the Southern District of Florida, sitting by designation. [↩]

07-11611 Trawick v. Allen
Before EDMONDSON, Chief Judge, BLACK and BARKETT, Circuit Judges.
PER CURIAM: Jack Trawick appeals from the denial of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. Trawick was convicted of capital murder in Alabama in 1994 and sentenced to death. Both the Alabama Court of Criminal Appeals and the Alabama Supreme Court affirmed Trawick’s conviction and death sentence for the kidnaping and murder of Stephanie Gash, and the U.S. Supreme Court denied Trawick’s petition for a writ of certiorari. Trawick v. State, 698 So. 2d 151 (Ala. Crim. App. 1995); Ex parte Trawick, 698 So. 2d 162 (Ala. 1997); Trawick v. Alabama, 522 U.S. 1000 (1997). His Alabama Rule 32 petition was denied, and that denial was summarily affirmed on appeal. Trawick v. State, 854 So. 2d 1215 (Ala. Crim. App. 2002); Ex parte Trawick, 856 So. 2d 963 (Ala. 2002). Trawick then filed this federal habeas corpus petition, which the district court denied. This appeal followed.
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The only issue before us on appeal is whether Trawick is entitled to federal habeas relief on his claim that the State of Alabama exercised its peremptory strikes in a discriminatory manner by using eleven of its fourteen strikes to remove women from the venire in violation of J.E.B. v. Alabama, 511 U.S. 127 (1994), which prohibits gender discrimination in jury selection.¹ Although Trawick did not raise any objection to gender-biased striking during trial, he did argue that claim on direct appeal to the Alabama Supreme Court on the basis of J.E.B., which the U.S. Supreme Court decided several weeks after Trawick’s conviction.² The Alabama Supreme Court held that Trawick failed to establish a prima facie case of gender discrimination. …the district court opinion denying Trawick’s petition for habeas relief is AFFIRMED. Trawick v. Allen.

1. This is the sole issue upon which a Certificate of Appealability was granted. [↩]
2. Trawick was convicted by a petit jury on March 23, 1994. The U.S. Supreme Court issued J.E.B. on April 14, 1994. [↩]

06-11351 U.S. v. Burgest
Before EDMONDSON, Chief Judge, DUBINA, Circuit Judge, and STORY,¹ District Judge.
DUBINA, Circuit Judge: Appellant Earl Burgest (“Burgest”) appeals his convictions on two counts of possession with intent to distribute five grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Burgest contends that the district court erred by admitting into evidence his post-arrest statement given to federal authorities after he waived his Miranda² rights but while he had retained counsel for a pending state drug charge. Burgest’s challenge presents an issue of first impression in this circuit: whether the dual sovereignty doctrine³ applies to the Sixth Amendment right to counsel. Based on the following discussion, we join the majority of circuits and hold that the dual sovereignty doctrine applies in the Sixth Amendment context. Because the drug offenses violated the laws of separate sovereigns, the state and federal offenses are not the same for purposes of the Sixth Amendment right to counsel. Thus, Burgest’s right to counsel had not attached to his uncharged federal offenses at the time he made his incriminating statements. Accordingly, we conclude that the district court did not err in admitting Burgest’s post-arrest statement into evidence, and we affirm his convictions. … U.S. v. Burgest

1. Honorable Richard W. Story, United States District Judge for the Northern District of Georgia, sitting by designation. [↩]
2. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). [↩]
3. The dual sovereignty doctrine is founded on the common-law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the ‘peace and dignity’ of two sovereigns by breaking the laws of each, he has committed two distinct ‘offences.’” Heath v. Alabama, 474 U.S. 82, 88, 106 S. Ct. 433, 437 (1985) (quoting United States v. Lanza, 260 U.S. 377, 382, 43 S. Ct. 141, 142 (1922)). [↩]

06-10080 U.S. v. Stratton
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM: This case is before us on remand from the United States Supreme Court for consideration of Stratton’s sentence in light of Kimbrough v. United States, 552 U.S. ___, 128 S. Ct. 558 (2007). Stratton v. United States, 552 U.S. ___, 128 S. Ct. 859 (2008). This panel previously affirmed Stratton’s 235-month sentence for conspiracy to possess with intent to distribute crack and powder cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. See United States v. Stratton, 205 F. App’x 791 (11th Cir. 2006). After reconsideration, we reinstate our previous opinion to the extent it rejected Stratton’s claims that (1) United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), is unconstitutional, (2) Booker’s remedial holding implicates ex post facto and due process concerns, (3) the district court violated Booker by its extra-verdict fact-findings and enhancements, and (4) the district court judge sua sponte should have recused. We also reinstate our previous order to the extent it concluded that Stratton’s claim that 21 U.S.C. § 846 is unconstitutional was barred by the law-of-the-case doctrine because he did not raise it in his first appeal.
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However, we reconsider our previous opinion to the extent it rejected Stratton’s claim that the crack/powder sentencing disparity may be a factor in determining a reasonable sentence. … U.S. v. Stratton.

07-11852 M. H. Fox v. Tyson Foods, Inc.
Before HULL and PRYOR, Circuit Judges, and MOORE, ((Honorable K. Michael Moore, U.S. District Judge for the Southern District of Florida,
sitting by designation.)) District Judge.
PRYOR, Circuit Judge: The main issue in this appeal is whether a district court must allow litigants to intervene in an action based only on a speculative concern about the stare decisis effect of a decision in that action. Petitioners, 161 employees or former employees of the Tyson Foods, Inc., plant in Blountsville, Alabama, appeal the denial of their motion to intervene in an action filed by M.H. Fox, an employee of the Tyson plant in Albertville, Alabama. The petitioners allege that Tyson violated the Fair Labor Standards Act by not compensating them for time spent donning and doffing—putting on, taking off, cleaning, and stowing—safety and sanitary gear. The petitioners make three arguments on appeal: (1) the district court clearly erred when it found that Tyson did not have a single, company-wide policy about compensation for donning and doffing; (2) the district court erred when it denied intervention of right; and (3) the district court abused its discretion when it denied permissive intervention. Because the district court did not err when it denied intervention of right and did not abuse its discretion when it denied permissive intervention, we dismiss this appeal for lack of jurisdiction. … M. H. Fox v. Tyson Foods, Inc..

04-11711 Lawhorn v. Allen
BEFORE: BIRCH, BARKETT and WILSON, Circuit Judges.
BIRCH, Circuit Judge: An Alabama jury found petitioner James Charles Lawhorn (“Lawhorn”) guilty of capital murder and recommended that he be sentenced to death. The state circuit court judge adopted that recommendation and sentenced Lawhorn to death. After exhausting his state court remedies, Lawhorn filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254. The district court granted in part and denied in part Lawhorn’s habeas petition, and the state appealed.1 After a thorough review of the record, and having the benefit of oral argument and the parties’ briefs, we REVERSE the district court’s judgment granting Lawhorn habeas relief by suppressing his confession, and AFFIRM the district court’s judgment granting Lawhorn habeas relief on the issue of ineffective assistance of counsel. … Lawhorn v. Allen.

06-13982 Michel v. U.S.
Before BIRCH, CARNES and COX, Circuit Judges.
COX, Circuit Judge: Georges Michel appeals the district court’s judgment dismissing as time-barred his 28 U.S.C. § 2255 motion to vacate his sentence. Michel’s original § 2255 motion was filed before the statute of limitations ran, but because it was unsigned, the district court clerk did not file and docket it until Michel provided a signed copy after the statutory deadline. Michel contends that amended Rule 3(b) Governing § 2255 Proceedings requires reversal. This amended rule requires the district court clerk to file and docket a § 2255 motion upon receipt, even if it does not meet certain technical requirements, such as a signature. Whether this amended rule applies in this case is at issue…. Michel v. U.S..

06-15931 REH Perez v. Sanford-Orlando Kennel
Before CARNES, BARKETT and HILL, Circuit Judges.
CARNES, Circuit Judge: Our previous decision in this FLSA case, Perez v. Sanford-Orlando Kennel Club, Inc., 2008 WL 220070, ___ F.3d ___ (11th Cir. Jan. 29, 2008), decided all of the issues against the defendants who filed the appeal, and in favor of the plaintiff who filed the cross-appeal (except as it involved the one individual defendant). The decision had the effect of requiring the defendants to pay the plaintiff twice as much in damages, along with more attorney’s fees, and it saddled the defendants with an unfavorable precedent which will lead to more damages and fee awards in other cases pending against them.

It is not surprising in view of those unpleasantries that Barnett Q. Brooks, the attorney for the defendants, has filed a rehearing petition. What is surprising is the position that he has taken in that petition. Instead of attempting to persuade us that our decision was wrong on the merits, Mr. Brooks instead contends that we should never have decided the merits of the case. We shouldn’t have decided them, he argues, because the appeal was mooted when his clients paid the full amount of the judgment and a satisfaction of it was filed in the district court. Those events happened two weeks after we heard oral argument. Instead of promptly informing us of them, Mr. Brooks waited to see how we would decide the appeal. Only after learning that he had lost the appeal, and lost it big, did he tell us about what he characterizes as jurisdiction-stripping events that had occurred three-and-a-half months before we issued our decision. What we must now do, he insists, is recognize that our opinion is an impermissible advisory one which must be vacated.

As one might imagine, we are not happy that Mr. Brooks attempted to put this Court through a trial run. … Perez v. Sanford-Orlando Kennel.

07-11777 Jarron Draper v. Atlanta Independent School System
06-13186 Lorenda Rodriguez v. Farm Stores Grocery, Inc.

06-16048 USA v. Donald J. Deverso

05-14446 USA v. Deisy Aviles
Docket #: 04-20059 CR-AJ
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07-10570 D’Anna Bates v. Deputy Lee Harvey
Docket #: 05-00025 CV-JTC-3

06-13655 USA v. John Randall Futch
Docket#: 02-00285 CR-WTM-4

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06-12501 Howard Alexander, Sr. v. Secretary, DOC
Docket#: 05-00208 CV-T-24-MAP