Justia U.S. 6th Circuit Court of Appeals Opinion Summaries

Petitioner, convicted of a non-fatal shooting, was sentenced as a habitual offender to 29-1/2 to 60 years for assault with intent to commit murder, to run concurrently with a sentence of 40 to 60 months for a felon-in-possession conviction, and a consecutive term of two years for a felony firearm conviction. He claims that his Sixth Amendment right to counsel was violated because his attorney fell asleep while he was being cross-examined. Michigan state courts rejected appeals. The district court denied habeas relief. The Seventh Circuit affirmed. At most, the attorney was asleep for part of a single cross-examination; a petitioner must show that his attorney slept through a substantial portion of the trial for the "Cronic" presumption of prejudice to attach. Noting the overwhelming evidence, the court stated that petition did not show a reasonable probability that counsel could have prevented prejudicial events from occurring had he been awake, much less that it would have affected the outcome of the trial. Although the attorney was later arrested for cocaine use, there was no evidence that he was using cocaine during the trial..

Plaintiff purchased auction-rate securities from defendant, a securities broker-dealer. ARS are long-term bonds whose interest rates periodically reset through auctions and typically offer higher returns than treasuries or other money market instruments. Investors can liquidate at each auction, if demand exceeds supply. If sellers outnumber buyers, the auction fails. ARS underwriters may place proprietary bids, to prevent auctions from failing. If an auction fails, there is a penalty interest rate to compensate for temporary illiquidity and entice new buyers. When plaintiff wanted to sell in 2008, neither defendant nor underwriters would place proprietary bids, leaving plaintiff with $194 million in illiquid securities. Plaintiff discounted the price by millions of dollars. The district court dismissed a suit claiming: violation of the Securities and Exchange Act of 1934 (15 U.S.C. 78j(b)), violation of Kentucky Blue Sky Laws, common-law fraud, promissory estoppel, and negligent misrepresentation. The Sixth Circuit affirmed. Many of defendant's purported misstatements and omissions are not actionable, either because they lacked materiality or because defendant had no duty to disclose them. Facts alleged in the complaint fall short of establishing scienter, as required to establish securities fraud.

In 1994 the township denied a special permit for construction of a church and related structures, consisting of 220,000 square feet of building area, more than 1,350 parking spaces, and a seating capacity of 4,000 people in the main auditorium/worship center on a 55.8-acre plot zoned for agricultural use. The parties later entered a consent judgment, permitting the church with a number of limitations. Because of growth and a desire to add services, the church moved to reopen the case in 2008 to set aside the consent judgment. The trial court denied the motion. The Sixth Circuit affirmed. After rejecting an argument that the judgment was void under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc, the court noted that the changed circumstances on which the church based its Fed. R. Civ. P. 60(b)(5) argument were voluntary and within the church's control. The fact that case law has clarified the law under RLUIPA does not justify reopening the case.

Defendant pled guilty to a three-count indictment charging receipt of visual depictions of minors engaged in sexually explicit conduct, receipt and/or distribution of child pornography (18 U.S.C. 2252A(a)(2)(A)), and possession of child pornography (18 U.S.C. 2252(a)(5)(B)). The district court imposed three concurrent terms of 120 months imprisonment. Noting that defendant did not raise his double jeopardy argument before the district court, the Sixth Circuit remanded for determination of whether the counts were supported by separate conduct or separate images. If the counts are supported by separate evidence, the sentences are affirmed. While possession of child pornography is generally a lesser-included offense of receipt of child pornography, conviction under both statutes is permissible if separate conduct is found to underlie the two offenses.

The inmate, serving a life sentence for first-degree murder and carrying a gun while attempting to commit a felony, filed a 42 U.S.C. 1983 suit, alleging First Amendment retaliation, conspiracy to violate constitutional rights, and violations of state law. He claims that defendants improperly rejected his incoming mail and filed two false misconduct reports against him after his success in an earlier retaliation suit. The district court dismissed most of the claims as unexhausted, and granted summary judgment on the remaining claims. The Sixth Circuit affirmed with respect to exhaustion, but reversed summary judgment on a retaliation claim because the inmate had not received requested discovery materials. The inmate was required to file individual grievances challenging all but one of the mail rejections; the state was not on notice of an ongoing problem because the rejections were based on different policies. Michigan’s rules provide that the only avenue for challenging major misconduct reports is a hearing, which the inmate did not request.

Defendant, a police officer, noticed a Tahoe that looked like a Michigan State Police vehicle and suspected that it was being used for impersonation of a law-enforcement officer. After state police advised that it was not theirs, defendant parked behind the vehicle, and approached plaintiff. Plaintiff stated that that he was a security guard, had a concealed-carry permit, and owned a handgun that was on the seat. Defendant handcuffed plaintiff. A check disclosed a warrant for plaintiff's arrest. Plaintiff was in custody for two hours before it was determined that the warrant was for another individual. The district court granted the city summary judgment on claims under 42 U.S.C. 1983, but held that defendant was not entitled to qualified immunity. The Sixth Circuit reversed. Plaintiff was not seized at the initial encounter or was subjected to a brief, reasonable "Terry" stop. A reasonable person would have felt free to continue walking after defendant's vehicle was parked behind the Tahoe; defendant neither displayed a weapon, nor touched plaintiff and did not use language or a tone of voice compelling compliance. The use of handcuffs and detention were justified because defendant was in a threatening situation. Failure to loosen the cuffs did not constitute excessive force.

Defendant pled guilty to conspiring to distribute crack cocaine, powder cocaine, and marijuana and was sentenced to a within-Guidelines 180 months' imprisonment. The Sixth Circuit vacated the sentence because the district court failed to recognize that it had the authority to "vary categorically" from the 100:1 crack-cocaine ratio in choosing the sentence. The existence of that authority was made clear in a 2009 Supreme Court case, decided after the sentencing.

The Sixth Circuit remanded the 28 U.S.C. 2254 habeas corpus case to the district court for factual development of an Ohio death-row inmate's claim that Ohio’s lethal-injection procedures violated his Eighth Amendment rights. The district court rejected the warden's motion to dismiss for lack of jurisdiction. On interlocutory appeal, the Sixth Circuit affirmed, rejecting an argument that the inmate's claim was cognizable only under 42 U.S.C. 1983.

Defendant, convicted under 18 U.S.C. 371 of conspiracy to defraud the United States while serving as in-house general counsel to the company involving the company's filing of false tax returns with the IRS. He was sentenced to 41 months of imprisonment, followed by three years of supervised release, and ordered to pay restitution to the IRS. The Sixth Circuit affirmed. The jury instructions adequately addressed the elements of conspiracy. There was no need for mention of the attorney-client privilege or of an attorney's potential obligation to report illegal activity. The government’s theory of liability was not dependent on whether defendant had an affirmative duty to inform, yet failed to do so; conviction did not turn on whether defendant's actions were governed by the attorney-client privilege. There was sufficient evidence to support the conviction.

Petitioner was convicted of drug and firearm offenses in Michigan state court based on her presence in a house where the drugs were found. She did not own the house and claimed that she did not know the drugs were there. Her lawyer, high on cocaine for much of the time he represented her, never interviewed any of the other people in the house or called them as witnesses. The district court rejected a habeas corpus petition as untimely. The Sixth Circuit remanded. The one-year limitations period on habeas applications by state prisoners, 28 U.S.C. 2244, includes an exception: when a prisoner files an original petition within the one-year deadline, and later presents new claims in an amended petition filed after the deadline passes, the new claims relate back to the date of the original petition if the new claims share a common core of operative facts. Petitioner failed to present the claim in state court and, therefore, has not exhausted remedies, and the district court must decide whether to hold the claim in abeyance.