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the ACCA and, therefore, is not subject to its fifteen-year mandatory minimum term of imprisonment. In light of the nearly identical language and interpretation of the residual clauses of the ACCA and the sentencing guideline, the court finds the residual clause of U.S.S.G. § 4B1.2(a)(2) is unconstitutionally vague. The government agreed. The court’s finding is consistent with the growing list of courts that have reached the same conclusion following Johnson. See, e.g., United States v. Madrid, 805 F.3d 1204, 1210 (10th Cir.2015) (“The concerns about judicial inconsistency that motivated the Court in Johnson lead us to conclude that the residual clause of the Guidelines is also unconstitutionally vague.”); United States v. Darden, 605 Fed.Appx. 545, 546 (6th Cir. 2015) (per curiam) (<HOLDING>); Cornejo-Lopez, 2015 WL 7274060, at *7 (“Just Holdings: 0: holding a defendant could not receive an enhanced sentenced under the residual clause of 4b12a2 following johnson 1: holding that the vagueness doctrine does not apply to advisory sentencing guidelines notwithstanding the governments position that the residual clause of 4b12a was unconstitutionally vague following johnson 2: holding that california residential burglary is categorically a crime of violence under the residual clause of ussg 4b12a2 which requires the criminal conduct to present a serious potential risk of physical injury to another 3: holding that johnson did not support the defendants collateral challenge under 28 usc 2255 to his sentence enhanced under the residual clause of the ussg 4: holding that the texas offense of possession of a prohibited weapon could only qualify as a crime of violence under the residual clause of 4b12a2 | [
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reference to the content of the regulated speech,” Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989) (citations omitted), or serves purposes unrelated to the content of expression, it is deemed neutral, Clark v. Community for Creative Non-Violence, 468 U.S. 288, 295, 104 S.Ct. 3065, 3070, 82 L.Ed.2d 221 (1984), even if it has an incidental effect on a particular category of speech. City of Renton v. Playtime Theatres, 475 U.S. at 48, 106 S.Ct. at 929. The content-neutrality requirement can be met if the challenged ordinance seeks to control secondary effects related to protected expression. This conclusion emanates from the controlling holding of Barnes v. Glen Theatre, 501 U.S. at 584, 111 S.Ct. at 2469 (Souter, J. concurring in judgement) (<HOLDING>). See Triplett Grille, Inc. v. City of Akron, Holdings: 0: recognizing secondary effects as sufficient basis for governmental regulation of sexually oriented businesses 1: recognizing utswmc as a governmental unit under the act 2: holding section 1010215 does not waive governmental immunity merely because a governmental action falls within the listed governmental functions thus further inquiry under the act is necessary 3: recognizing governmental interest in rehabilitation 4: recognizing the protection of preliminary governmental materials | [
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as a general interpretive aid to the visual record. It also provides a physical exempler of the suspect’s manner of speech at the time of arrest. A jury may use the quality of the suspect’s speech as evidence of his degree of intoxication. Ability to enunciate words clearly can be highly probative of loss of “normal use of mental or physical faculties,” which the State must prove under Art. 67011-1(a)(2)(A), V.T.C.S. Similarly, a test of ability to read aloud can be probative in the case of a literate suspect. As long as the suspect’s statements are not used for their truth but as circumstantial evidence from which the jury may infer the degree of intoxication, the attending officers could testify about the statements anyway. Miffleton v. State, 777 S.W.2d 76, 80 (Tex.Crim.App.1989) (<HOLDING>) If testimony about the statements would be Holdings: 0: holding that visual depictions of a suspects appearance soon after arrest are admissible because officers could testify to the facts depicted 1: holding that an officer may search a suspects vehicle incident to a lawful arrest 2: holding that police officers have probable cause to arrest an individual with a sufficiently similar appearance to the description in a warrant 3: holding that officers reasonable mistake as to a suspects identity entitled the officers to do what the law would have allowed had the correct suspect been arrested ie perform a search incident to arrest 4: holding an agents false statements reckless because she was aware of the true facts surrounding the suspects arrest | [
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captioned case under 28 U.S.C. § 1331.” Defendants’ brief is silent on the issue of jurisdiction. At oral argument, the parties agreed Count II is a state claim over which the district court had supplemental jurisdiction, pursuant to 28 U.S.C. § 1367(a), because Counts I and II “form part of the same case or controversy under Article III of the United States Constitution.” We agree. A plaintiff may not bring a state claim under the aegis of § 1983, so if Count II states a plausible claim, our jurisdiction is predicated on § 1367(a), not § 1331. See 42 U.S.C. § 1983 (providing a cause of action for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of the United States); West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (<HOLDING>); Flynn v. Sandahl, 58 F.3d 283, 290 (7th Holdings: 0: holding that in order to prevail under 1983 a plaintiff must show 1 that defendants deprived him or her of a right secured by the constitution or laws of the united states and 2 that in doing so defendants acted under color of state law internal quotation marks omitted 1: holding that the plaintiff must demonstrate that defendants contacts with the united states as a whole support the exercise of jurisdiction consistent with the constitution and laws of the united states 2: holding a plaintiff must allege the violation of a right secured by the constitution and laws of the united states to state a claim under 1983 3: recognizing objective standard applicable under 42 usc 1983 and suits under united states constitution 4: holding that to prevail on a 1983 claim a plaintiff must allege that the defendant acted under color of state law in other words that there was state action | [
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Reply at 4 (internal citation omitted). (EOF No. 79.) In contrast, Plaintiff cites to Dellaripa, which states that Van Beeck’s holding logically extends to survival actions. The Court agrees with the reasoning in Dellaripa, and this Court does not construe Dooley to supersede Dellaripa. First, the Court notes that the categories of beneficiaries established in sections 51 and 59 are identical. Accordingly, this Court would be in direct conflict with Van Beeck if it determined that the estate of a statutory beneficiary qualified as a “new” class of beneficiary. Second, other courts have reached similar conclusions about the sur-vivorship of claims where the named beneficiary dies during the pendency of the action. See, e.g., White v. United States, 543 F.3d 1330 (Fed. Cir. 2008) (<HOLDING>). Finally, it would be an especially absurd and Holdings: 0: holding that the cause of action under fela vests in the personal representative of the estate not in the beneficiaries 1: recognizing property of the estate to include the estates chose in action against its auditor 2: holding that erisa benefits are not property of the estate 3: holding that the claims to a statutory benefit had not yet vested when the legislature eliminated the benefit 4: holding that even though estates are not among the beneficiaries enumerated in the public safety officers benefits act the estate of a claimant who died before her claim had been processed could collect the statutory benefit | [
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in which police obtained a statement from the defendant in violation of his Sixth Amendment rights that led to the discovery of the body of his murder victim. 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). The Court reversed a grant of habeas to the defendant based on the use of evidence regarding the body at trial, finding that the exclusionary rule should not bar admission of evidence related to the body. Id. at 449-50, 104 S.Ct. 2501. The Court held that the “inevitable discovery” exception to the exclusionary rule applied because a search party, conducted entirely independently of the police interrogation of the defendant, was in the area of the body and would have discovered it even without the defendant’s statement. Id. See also Murray, 487 U.S. at 542, 108 S.Ct. 2529 (<HOLDING>). This court has articulated that the Holdings: 0: holding in an impliedconsent case that a warrantless police entry was unlawful in part because the police did not request entry 1: holding evidence found pursuant to warrant based on probable cause provided by prior illegal entry was inadmissible as fruit of the poisonous tree 2: holding that if the application for a warrant contains probable cause apart from the improper information then the warrant is lawful and the independent source doctrine applies providing that the officers were not prompted to obtain the warrant by what they observed during the initial entry 3: holding that the police officers had probable cause to make a warrantless entry 4: holding that the related independent source rule could potentially apply on remand despite illegal police entry into a warehouse containing marijuana where police had legitimately gained probable cause prior to entry and separately obtained a warrant for entry if the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence | [
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held that “a Rule 19 objection can even be noticed on appeal by a reviewing court sua sponte.” Pickle v. Int’l Oilfield Divers, Inc., 791 F.2d 1237, 1242 (5th Cir.1986) (citing Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968)); Kimball v. Florida Bar, 537 F.2d 1305, 1307 (5th Cir.1976); see 7 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1609 (3d ed. 2001); see also GTE Sylvania v. Consumer Product Safety, 598 F.2d 790, 798-99 (3d Cir.1979) (recognizing the power of the court to raise the issue sua sponte but declining to do so where “[the parties] could have intervened in the ... litigation without significant burden.”) (emphasis added). But see Hoots v. Pennsylvania, 495 F.2d 1095, 1096 n. 3 (3d Cir.1974) (<HOLDING>). Further, “a court of appeals should, on its Holdings: 0: holding that a ruling of the trial court to which no error has been assigned becomes the law of the case and is not subject to review by the court of appeals 1: holding that issues not raised in the trial court may not be raised later on appeal 2: holding that an issue not raised in the trial court cannot be raised for the first time on appeal 3: recognizing the general rule that a court of appeals will not consider an issue raised for the first time on appeal 4: holding that a court of appeals may only do so when an appeal has been raised by an existing party to the case | [
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of Juvenile Procedure were designed so that issues involving children may be quickly addressed and not encumbered by the rules of more formal proceedings. See Tenn. R. Juv. P. 1(c) (2003). These Rules of Juvenile Procedure do not, however, address intervention. 7 . Tennessee Rule of Civil Procedure 1 provides in pertinent part: Subject to such exceptions as stated in them, these rules shall govern the procedure in the circuit and chancery courts of Tennessee and in other courts while exercising jurisdiction of the circuit or chancery courts, in all civil actions, whether at law or in equity, including civil actions appealed or otherwise transferred to those courts. 8 . See Skerrett v. Ass’n for Guidance, No. M2002-00218-COA-R3-JV, 2003 WL 21634412, at *2 (Tenn.Ct.App. July 11, 2003) (<HOLDING>). 9 . When a child is removed from the home, Holdings: 0: holding that tennessee rule of civil procedure 24 is not applicable to proceedings in juvenile court 1: holding that by vesting jurisdiction of gtla actions in circuit court where the tennessee rules of civil procedure applied the legislature intended to allow the tennessee rules of civil procedure to apply to gtla actions 2: holding rule applicable to witness 3: holding that the public records act does not mandate disclosure of documents sealed by a protective order entered pursuant to the tennessee rules of civil procedure 4: holding a trial court commits fundamental error by failing to follow florida rule of juvenile procedure 8150 the juvenile rule equivalent of florida rule of criminal procedure 3830 | [
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that every other Texas appellate decision concerning this issue, with the exception of the court of appeals’ opinion in this case, has interpreted it the same way. See Thrivent, 251 S.W.3d at 627; Stolhandske v. Stem, 14 S.W.3d 810, 813 (Tex.App.Houston [1st Dist.] 2000, pet. denied); Vondergoltz, 14 S.W.3d at 331. The TAA directs us to construe its provisions so as to “make uniform the construction of other states’ law applicable to an arbitration”; we come closer to that mandate by holding that an interlocutory order that directs a rehearing may not be appealed. III. Precedent and statutory interpretation instruct us to treat an order vacating an award and directing a rehearing as the functional equivalent of an order granting a new trial. The Court tak f Transp., 581 A.2d at 815 (<HOLDING>); Minn. Teamsters Pub. & Law Enforcement Holdings: 0: holding that an appeal from an order vacating an award while directing a rehearing is an appeal improvidently taken 1: holding that an order granting a new trial in a civil action is appealable 2: holding that order vacating award and ordering rehearing is analogous to order granting new trial 3: holding that barring appeal from an order that vacates an arbitration award and directs a rehearing is consistent with the policy of barring an immediate appeal from the granting of a new trial in a civil case 4: holding that an order vacating an arbitration award and directing a rehearing is the functional equivalent of an order granting a new trial | [
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stated above, the intervention is for the limited purpose of objecting to Judge Boyle’s decision. If the motions were denied, the Court would still have to address Liggett’s objections. Further, in an effort to avoid delaying these proceedings the putative intervenors have already filed their objections, the consideration of which are contingent upon the Court’s decision with respect to these motions. Accordingly, the Court finds that the only possible prejudice the plaintiffs might face is the added expense of answering the extra objections, a condition the Court finds an insufficient basis to deny the Rule 24 motions. (ii) Disposition of an interest which the intervenors would otherwise be unable to protect For the sake of brevity, the Court will address together both (3d Cir.1979) (<HOLDING>) (collecting cases). As the D.C. Circuit stated Holdings: 0: recognizing intervention to assert both the attorneyclient and work product privileges 1: holding declaration or affidavit must support work product claim for documents listed solely as work product on privilege log 2: recognizing that a district court should allow intervention by a client in the first instance as soon as the attorneyclient privilege issue is raised 3: holding that failure to timely assert attorneyclient privilege constitutes waiver 4: recognizing that attorneys disclosure of confidential information may be judicially compelled in accordance with recognized exceptions to the attorneyclient and work product privileges | [
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plain language of the statute, which refers to persons “born ... of parents both of whom are citizens of the United States” and pertains only to the acquisition of citizenship “at birth.” See Marquez-Marquez v. Gonzales, 455 F.3d 548, 556-57 (5th Cir.2006) (rejecting the same argument based upon a plain reading of the statute). Accordingly, we reject Colaian-ni’s contention that he acquired citizenship pursuant to former § 301(a)(3) as a result of his adoption. III. Equal Protection: Former INA §§ 320-322 We review Colaianni’s equal protection claim under a rational basis standard. See 140 L.Ed.2d 575 (1998) (“Congress obviously has a powerful interest in fostering ties with the child’s citizen parent and the United States during his or her formative years.”); Smart, 401 F.3d at 122 (<HOLDING>). For much the same reasons, the requirement of Holdings: 0: recognizing that congress has a legitimate interest in ensuring that a child who becomes an american citizen has a real relationship with a family unit and with the united states 1: recognizing that where insured has been paid in full insurer is the real party in interest 2: holding that the plaintiff must demonstrate that defendants contacts with the united states as a whole support the exercise of jurisdiction consistent with the constitution and laws of the united states 3: holding that upon approval by congress a compact between states becomes federal law that binds the states 4: recognizing statutory nature of stay but concluding that court still has interest in ensuring compliance | [
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1294 (D.C.Cir.1996) (agency’s “choice of a sanction” will be upheld “unless the sanction is either ‘unwarranted in law or ... without justification in fact.’ ” (quoting Butz v. Glover Livestock Comm’n Co., 411 U.S. 182, 185—86, 93 S.Ct. 1455, 36 L.Ed.2d 142 (1973) (ellipsis in original and internal quotation marks omitted))). DEA offered no explanation for its decision to revoke Dr. Morall’s registration while declining to revoke the registration of any other physician in a comparable context, or even under significantly more troubling circumstances. The decision to revoke Dr. Morall’s registration, therefore, constitutes such arbitrary decisionmaking that it cannot withstand the most deferential of judicial review. See Gulf Power Co. v. FERC, 983 F.2d 1095, 1098-1100 (D.C.Cir.1993) (<HOLDING>). Indeed, an agency’s need to explain contrary Holdings: 0: holding that it was not an abuse of discretion for the trial court to exclude an agency finding of no discrimination on the ground that the report would suggest to the jury that it should reach the same conclusion as the agency 1: holding that the agency is obligated to offer more explanation when the record suggests strong arguments for the petitioner that the agency has not considered 2: holding that the sanction the agency imposed was not rationally arrived at on this record and was wholly disproportionate to the error petitioner committed where inter alia the agency did not explain why it had not taken the same position in similar circumstances in the past 3: holding that an order by the trial court remanding the cause to the agency to impose a sanction other than the one imposed by the agency was not a final and appealable order because it did not terminate the litigation between the parties on the merits 4: holding that a longstanding agency interpretation was no longer entitled to chevron deference given that the agency had changed its position on the issue | [
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upheld because it was neither arbitrary nor capricious. 1. ERISA Exhaustion Requirements Defendant’s motion for summary judgment on the ground that Smith has failed to exhaust his administrative remedies will be denied because, in fact, Smith has exhausted his administrative remedies. “[C]ourts require exhaustion of administrative remedies prior to hearing an action for a denial of ERISA benefits.” Harrow v. Prudential Ins. Co. of America, 279 F.3d 244, 252 (3d Cir.2002). A plain-' tiff can satisfy the exhaustion requirement either by completing the appeal process under the benefit plan or by showing that the claim was “deemed denied” after the plan administrator failed to address the claim within the time frame provided by the plan. See Gritzer v. CBS, Inc., 275 F.3d 291 (3d Cir.2002) (<HOLDING>). The Policy provides that the insurer must Holdings: 0: holding that the prisoner has the burden of demonstrating he has exhausted his administrative remedies in his complaint 1: holding that a prisoner exhausted his administrative remedies even though his grievance was untimely 2: holding that a plaintiff has exhausted his administrative remedies when his claim is deemed denied because of failure of administrator to respond in a timely manner 3: holding that administrative remedies must be exhausted prior to filing a claim in court 4: recognizing that officials failure timely to respond to grievance could be basis for prisoner to show he exhausted available administrative remedies | [
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of that information to investors and media did not independently violate the NDA. 56 . NDA ¶ 2 ("Each party agrees that ... the disclosing party’s Evaluation Material will be kept confidential and each party and its Representatives will not disclose ... any of the other party’s Evaluation Material in any manner whatsoever....”). 57 . Italics added. 58 .Alta Berkeley VI C.V. v. Omneon, Inc., 41 A.3d 381, 385-86 (Del.2012) (citing Elliott Assoc., L.P. v. Avatex Corp., 715 A.2d 843, 854 (Del. 1998)); GMG Capital Investments, LLC v. Athenian Venture Partners I, L.P., 36 A.3d 776, 779 (Del.2012) (citing E.I. du Pont de Nem-ours and Co., Inc. v. Shell Oil Co., 498 A.2d 1108, 1113 (Del.1985)). 59 .Italics added. 60 .Italics added. 61 . SI Mgmt. L.P. v. Wininger, 707 A.2d 37, 40 (Del. 1998) (<HOLDING>). 62 . Italics added. 63 . JDÁ ¶ 10. 64 .Cirrus Holdings: 0: holding that on review of a motion to suppress the appellate court is to give deference to a trial courts factual findings but legal conclusions are reviewed de novo 1: holding it is an abuse of discretion to grant a preliminary injunction because difficult legal issues are present without even considering likelihood of success 2: holding that the admission of evidence under an exception to the hearsay rule is reviewed for abuse of discretion 3: holding that the grant of an injunction is reviewed for abuse of discretion but without deference to the legal conclusions of the trial court 4: holding that the imposition of sanctions is reviewed for abuse of discretion | [
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fair opportunity to defend while witnesses are available and the evidence is fresh in their minds. See Natural Gas Pipeline Co. of America v. Pool, 124 S.W.3d 188,199 (Tex.2003); Willis v. Maverick, 760 S.W.2d 642, 644 (Tex.1988). Statutes of limitations also prevent fraudulent and stale claims from surprising the other party. See Pool, 124 S.W.3d at 199; Hallaway v. Thompson, 148 Tex. 471, 478, 226 S.W.2d 816, 820 (1950). However, allowing a “John Doe” petition to toll limitations would expand the period for filing claims indefinitely, discourage prompt investigation and resolution of claims, and potentially deny defendants otherwise available defenses. See Moore v. Michelin Tire Co., 603 N.W.2d 513, 523 (S.D.1999); see also Grobe v. McBryde, 105 Ariz. 577, 468 P.2d 936, 939-40 (1970) (<HOLDING>); Lunn v. American Maint. Corp., 96 Nev. 787, Holdings: 0: holding that the concealment of ones identity does not toll the running of the statute of limitations 1: holding that under the law of the district of columbia the filing of a complaint does not toll the statute of limitations on a counterclaim 2: recognizing that statute of limitations may be tolled indefinitely for legally incompetent persons 3: holding that duress toll to statute of limitations under state law had no application to federal rico statute of limitations 4: recognizing potential abuse inherent in permitting the use of fictitious names to toll limitations indefinitely while the plaintiff perfects his case | [
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judgment on the property interest claim. To the extent the defendants seek dismissal of the liberty interest claim under Rule 12(b)(6), the motion will be denied. 3.Interrogations Stultz also claims that Holcomb, Connaughton, Esposito, Thorpe, Hill, Penny, and Howard denied him due process by interrogating him on three separate occasions without advising him that he was under investigation or being considered for disciplinary action. Upon review of the amended complaint, the court concludes that Stultz has not sufficiently alleged that the interrogations deprived him of a constitutionally protected liberty or property interest. See Wootten v. Commonwealth, No. 6:14-CV-00013, 2016 WL 1345276, at *14 n. 8, 2015 U.S. Dist. LEXIS 35949, at *43 n. 8 (W.D.Va. Mar. 23, 2015) (Moon, J.) (<HOLDING>). Accordingly, the court will dismiss this Holdings: 0: holding that defendants mere allegations of ineffective assistance were insufficient to prevail on such a claim 1: holding that similar allegations were insufficient to state a due process claim 2: holding that evidence of other allegations of torture was inadmissible in part because it was not similar to the allegations made by defendant 3: holding insufficient the plaintiffs generic allegations 4: holding that in similar factual situation no due process violation occurred | [
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in order to ensure constitutional compliance. Rule 11 provides: “A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo con-tendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty or nolo contendere unless it is satisfied that there is a factual basis for the plea.” See Moniz, 938 A.2d at 695 (<HOLDING>); State v. Frazar, 822 A.2d 981, 935 Holdings: 0: recognizing superior court must conduct an on the record examination to determine defendants voluntariness and knowledge 1: recognizing that the ultimate question of the voluntariness of consent is one of law 2: recognizing that consent is an exception to the warrant requirement and that voluntariness of consent depends on the totality of the circumstances 3: holding that defendants failure to appeal the voluntariness of a plea constitutes waiver of the issue on subsequent appeal 4: holding that in determining the voluntariness of a waiver of miranda rights a court must evaluate the totality of the circumstances | [
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rather than automatically assumed is also consistent with federal regulations requiring a transferee to take affirmative steps to assume mortgage debt. According to 12 C.F.R. § 591.5(c), the Act's limitations on the enforceability of due-on-sale clauses do “not prohibit a lender from requiring, as a condition to an assumption, continued maintenance of mortgage insurance by the existing borrower’s successor in interest, whether by endorsement of the existing policy or by entrance into a new contract of insurance.” Id. (emphasis added). 4 . Several other state appellate courts have also permitted the trier of fact to consider extrinsic evidence in circumstances similar to those surrounding the August 2010 Agreement. See Gonzales v. Gauna, 28 N.M. 55, 206 P. 511, 513 (N.Mex.1922) (<HOLDING>); Schuster v. Snawder, 101 S.W. 1194 (Ky.1907) Holdings: 0: holding that defendant was not resident of his mothers household even though his drivers license listed his mothers address and he received mail there because he expressed a belief that his residence was in a different location than his mothers home he rented and occupied his own residence and he testified that he was only living with his mother after expiration of his lease until he could find another place to live 1: holding that son had no homestead interest in property even though he resided upon it with his fathers consent because son had neither title nor a present right to possess land nor right to demand partition from father who was his cotenant 2: holding that a defendant did not otherwise defend even though he had appeared before the court 3: holding that adult child who maintained his own residence separate from his fathers household but regularly vacationed and kept gear at his fathers vacation home was not a resident of his fathers household and therefore not an insured under his fathers insurance policy covering the vacation home 4: holding that a son could be bound by a contract that he signed even though his fathers name and not his appeared in the body | [
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As such, they are deemed to have abandoned this claim on appeal. See Fed. R.App. P. 28(a)(9); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.1987) (stating that this court will not raise and discuss legal issues that an appellant has failed to assert). In any event, Plaintiffs’ argument is without merit. It is well-settled that parole is “part of the penalty for the initial offense,” Johnson v. United States, 529 U.S. 694, 700, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000), and that “once the original sentence has been imposed in a criminal case, further proceedings with respect to that sentence [have not been] subject to Sixth Amendment protections.” United States v. Work, 409 F.3d 484, 491 (1st Cir.2005); United States v. Hinson, 429 F.3d 114, 119 (5th Cir.2005) (<HOLDING>). V. Plaintiffs also assert a number of due Holdings: 0: holding that district courts have the authority to order terms of supervised release following reimprisonment 1: holding that further supervised release may be ordered as a sentence for violation of supervised release 2: holding that invitederror doctrine precludes defendant from challenging sentence of supervised release where defendant requested sentence of supervised release 3: holding that term of supervised release was not automatically terminated when defendant was deported from united states and thus defendants subsequent commission of another offense illegal reentry after deportation prior to expiration of term of supervised release violated condition of supervised release that defendant commit no new offenses 4: holding that defendant is not entitled to a jury trial to determine whether terms of supervised release have been violated | [
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the scope of the conflict). However, this issue may be relevant to a claim of ineffective assistance of counsel, which we do not reach. 2 . Section 90.403 provides in relevant part: "Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” 3 . Czubak, 570 So.2d at 929 (concluding that the photographs of the victim’s body had little or no relevance because they could not establish identity, were not probative as to the cause of death, and bore little relevance to the circumstances surrounding the murder, and that any relevance was outweighed by the shocking and inflammatory nature of the photographs); Williams, 834 So.2d at 926 (<HOLDING>); Kirby, 625 So.2d at 53-54 (holding that the Holdings: 0: holding that a photograph of the hands of the murder victim tied behind her back was properly admitted because it showed the considerable pain inflicted upon the victim by the defendant 1: holding photograph showing victim with his family photograph fell within the prosecutors latitude in showing victim and was not unduly prejudicial 2: holding autopsy photograph of victim was admissible even if defendant stipulated identity of victim 3: holding that because the photograph of the victim was for identification purposes only and the victims military service was never discussed at trial even if the photograph did evoke sympathy from the jury it was not reversible error to admit it 4: holding that a photograph of the body of the victim at the scene was relevant and admissible because it illustrated clarified and corroborated the testimony of various witnesses | [
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claim, which he purports to have raised in a second pending motion to reopen before the BIA. Indeed, the BIA may consider Zhu’s motion without this case being remanded, see 8 C.F.R. § 1003.2(a), and should the BIA deny his second motion to reopen, Zhu may file a petition for review of that decision, see Durant v. INS, 393 F.3d 113, 115 (2d Cir.2004) (recognizing that orders denying motions to reopen are treated as final orders separate from final orders of removal and that such orders require separate petitions for review). Moreover, we will not exercise any inherent authority we may possess to remand this case with instructions for the BIA to consider Zhu’s evidence of the ineffective assistance of his prior counsel. See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 262 (2d Cir.2007) (<HOLDING>). In the alternative, Zhu requests that this Holdings: 0: holding that the court will not remand if i the basis for the remand is an instruction to consider documentary evidence that was not in the record before the bia and ii the agency regulations set forth procedures to reopen a case before the bia for the taking of additional evidence 1: holding that the bia does not abuse its discretion by giving summary consideration to evidence presented in a motion to reopen particularly when dealing with evidence which the bia is asked to repeatedly consider 2: holding that where issues were not considered by the bia remand is appropriate 3: holding that we will not review an issue or claim that was not presented to the bia in the petitioners notice of appeal or brief to the bia even if the bia considered the issue or claim sua sponte 4: holding that the bia abused its discretion in denying a motion to reopen when it failed to consider the argument before it | [
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of a[AAA] rule to a[AAA] arbitrator, that particular issue of procedure was left for the arbitrator to decide.” Opinion at 1121 (citing Howsam, 537 U.S. at 86,123 S.Ct. 588). Here, neither party disputes the existence nor validity of the arbitration agreement. Therefore, I concur in the majority’s decision to compel arbitration. However, I would remand all other issues to the arbitrator, including the issues of whether the arbitration provision was waived or breached, and therefore dissent to the extent the court holds otherwise. See Howsam, 537 U.S. a 43, 46 (1st Cir.2005) (considering question of waiver after the "AAA dismissed the Tyco demand for arbitration ... for lack of written consent”); PPG Indus., Inc. v. Webster Auto Parts Inc., 128 F.3d 103, 107 (2d Cir.1997) (<HOLDING>); Great W. Mortgage Corp. v. Peacock, 110 F.3d Holdings: 0: holding that coparties become opposing parties emphasis added within the meaning of fedrcivp 13a after one such party pleads an initial crossclaim against the other with no discussion of whether an opposing party must be deemed a defendant 1: holding that a party that engages in protracted litigation waives his right to arbitrate when an order compelling arbitration would result in prejudice to the party opposing arbitration 2: holding that a court may consider a theory raised for the first time in a posttrial brief unless it is precluded by the pleadings or it prejudices the opposing party 3: holding that the party did not waive its right to enforce the arbitration clause 4: holding that a party waives its right to arbitration when it engages in protracted litigation that prejudices the opposing party emphasis added | [
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conviction. Plaintiffs claim that the excluded evidence would have called the credibility of several of Apollo’s witnesses into question. This Court reviews a trial court’s evidentiary rulings for abuse of discretion. Townsend, 31 F.3d at 267. Fed.R.Evid. 608(b) states: Specific instances of the conduct of a witness for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided by rule 609, may not be proved by extrinsic evidence. By its language, Rule 608(b) clearly prevents the Plaintiffs from presenting evidence of specific instances of untruthful conduct by certain Apollo witness to show that these witnesses had a propensity for untruthfulness. 28 ChaRles Alan Weight & VictoR James Gold, Federal Practice and Procedure § 6117 (1993) (<HOLDING>). In addition, Fed.R.Evid. 403 allows the Holdings: 0: holding that opinion testimony was inadmissible to prove a persons character or character trait when maine rule of evidence 405 permitted only evidence of reputation or specific instances of conduct 1: holding that for error to be preserved on appeal with regard to admission of evidence in violation of a ruling on a motion in limine that the evidence is inadmissible an objection should be made at the time the evidence is offered 2: holding extrinsic evidence contradicting language in will inadmissible when will is unambiguous 3: recognizing that rule 608b prior bad acts evidence admissible as probative of truthfulness is subject to rule 403 balancing 4: recognizing that under the proper application of rule 608b extrinsic evidence of specific instances of bad conduct is made inadmissible when offered to prove a witnesss character for untruthfulness | [
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most like a prison, Judge Gleeson applied the Covino/Tumer standard. See id. This was correct. The Plaintiff was confined for an extended period of time in a prison-like environment, and it appears that he was charged with felonies, see 18 U.S.C. §§ 371, 1028. In the environment where the Plaintiff was held, the lesser reasonable suspicion standard would jeopardize prison officials’ ability to maintain security. As Judge Gleeson recognized, even if the precise standard governing intrusive searches of the Plaintiff at the MDC might not have been clearly established in 2001, it was clearly established that even the standard most favorable to prison officials required that strip and body-cavity searches be rationally related to legitimate government purposes. Cf. Hodges, 712 F.2d at 35 (<HOLDING>). The complaint alleges that the Plaintiff was Holdings: 0: holding that a plaintiff stated a fourth amendment claim where consecutive bodycavity searches were unnecessary 1: holding that policy requiring strip searches of prisoners prior to transfer did not violate fourth amendment 2: holding that bodycavity searches of prisoners are not unreasonable 3: holding that fourth amendment applicable in administrative searches for safety inspections 4: holding that consensual suspicionless searches of government employees personal belongings in the workplace were searches even though refusal to consent carried no criminal penalty and the searches were not for law enforcement purposes | [
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(“This Court is of the view that, with the exception of extreme cases where transfer or release might be a necessary remedy, most challenges to the constitutional adequacy of medical care should proceed as civil rights claims.... ”). The First Circuit’s ruling in Brennan v. Cunningham, that a prisoner’s claim for reinstatement in a halfway house/work release program could proceed as a habeas petition, supports this position. 813 F.2d 1, 4-5 (1st Cir.1987). Therefore, Fox’s claim that his misclassification resulted in denial of transfer to a halfway house is more appropriately construed as a habeas petition. See Kane, 319 F.Supp.2d at 215 (treating an improperly filed habeas petition as if it were filed as a civil rights claim); see also Fierro v. Gomez, 77 F.3d 301, 305 (9th Cir.1996) (<HOLDING>), vacated on other grounds, 519 U.S. 918, 117 Holdings: 0: holding that a court may construe a section 1983 complaint as a habeas petition and vice versa 1: holding that the district court erred in summarily dismissing a 1983 complaint that should have been brought as a habeas petition 2: holding 1 that the district court properly construed one 1983 claim as a habeas petition but improperly summarily dismissed it and 2 that the district court should have construed another 1983 claim as a habeas petition 3: holding that conditionsofconfinement claims must be brought in 42 usc 1983 civil rights complaint rather than in habeas petition 4: recognizing our ability to construe a pretrial habeas petition filed under 2254 as being brought under 2241 | [
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509 (N.J.Super.Ct.App.Div.1989). There is no question that the proceedings before the ISP Resentencing Panel implicate important state interests. However, there is a real question over whether there is an adequate opportunity, even if the proceedings can be considered judicial in nature, for the Plaintiff to raise constitutional challenges. This is because there is no opportunity for the Plaintiff to appeal the decisions of the ISP Panel to any New Jersey court and present his constitutional arguments to such a court. Without an opportunity to appeal to a true New Jersey state court it is likely that the Plaintiff will not be afforded an adequate opportunity to raise his constitutional challenges. See Amanatullah v. Colorado Bd. of Medical Examiners, 187 F.3d 1160, 1164 (10th Cir.1999) (<HOLDING>); Port Auth. Police Benevolent Ass’n, 973 F.2d Holdings: 0: holding that there is no right to habeas review of administrative evidentiary determinations before a district court where direct review of the administrative proceedings is available in the appellate courts 1: holding that there was no question that the full and fair opportunity element was met where there was no indication that such an opportunity was unavailable 2: holding alien not denied judicial review because habeas was available 3: holding that there was adequate opportunity when state court judicial review of an administrative proceeding was available 4: holding that judicial review is not available of the governments certification under 18 usc 5032 as required to initiate a juvenile delinquency proceeding that inter alia an appropriate court of a state does not have available programs and services adequate for the needs of juveniles | [
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Interpreting all of the sections together, section 6323(b)(6)(A) provides that the federal lien is subordinated to the County’s lien; it does not render the federal lien invalid as to the property itself or any other party. See, e.g., In re Tabone, Inc., 175 B.R. 855, 859 n. 8 (Bankr.D.N.J.1994) (noting that section 6323(b)(6)(A) provides that the township’s tax liens hold priority status over the federal lien); Hinkley & Donovan, 424 F.Supp. at 1019; Amos, 287 F.Supp. at 890-91. Thus, the federal lien remained valid and survived the County’s tax sale. Because the IRS was not given notice of the County’s tax sale after the IRS had filed notice of its lien on the property, the lien attached to the property and Fox purchased the property subject to the lien. 26 U.S.C.A. § 7425(b)(1) (<HOLDING>). While the County argues that interpreting the Holdings: 0: holding that the lien bond releases the property from the lien but the lien is then secured by the bond 1: holding in the analogous context of choiceoflaw in relation to the sale of personal property that compensation for arranging the sale is assessed apart from underlying sale 2: holding that subsequent to a judicial sale the report of the sale must be made to and ratified by the court before a deed for the property is given by the trustee to the purchaser 3: holding chapter 13 plan funded by sale of property was not feasible where the debtor had not stated the time period or terms of the sale and no provision was made for failure to sell the property 4: holding that where property subject to the irss timely filed lien is sold during a nonjudicial sale and the irs is not given notice of the sale the sale of the property is made subject to and without disturbing the lien | [
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Fails v. Jefferson Davis Cnty. Pub. Sch. Bd., 95 So.3d 1223, 1225 (¶ 10) (Miss.2012) (quoting Gartrell v. Gartrell, 936 So.2d 915, 916 (¶ 8) (Miss.2006)). By the time Ducks-worth filed his PCR motion, the Parole Board had acknowledged Ducksworth’s parole eligibility of August 2008, had given him a hearing in October 2009, and had denied him parole. So the circuit court’s consideration of Ducksworth’s claim that his parole-eligibility date was actually August 2008 would be of no practical benefit to Ducksworth. Had he brought the matter to the circuit court’s attention before August 2008, the circuit court could have ordered the MDOC to recalculate Ducks-worth’s parole-eligibility date. But by 2011, any controversy regarding Ducks-worth’s parole-eligibility no longer existed. See id. (<HOLDING>). ¶ 18. Because Ducksworth’s claim is moot, we Holdings: 0: holding that the circuit courts have no appellate jurisdiction over a general district courts review of an administrative license suspension in the absence of any statutory authority vesting them with such jurisdiction 1: holding appellate courts have no authority to review actual controversies that have expired 2: holding that district courts do not have appellate jurisdiction over state courts 3: recognizing that appellate courts that have applied rule 16 have afforded wide discretion to district courts applications of that rule 4: holding that there is no due process right to appellate review | [
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joined the conspiracy.” Id. at 194 (citations omitted.) Even Witkin, however, notes that a defendant is not liable for the substantive offenses committed by his coconspirators prior to his joining the conspiracy. See Witkin & Epstein § 96. 18 . Appellants' multiple conspiracies arguments are focused on counts three and four. They also claim, however, that the evidence underlying their convictions on count two was simply a conglomeration of the evidence presented on counts three and four. This argument is flatly contradicted by the prosecution’s case, which involved evidence of numerous predicate conspiracies and overt acts ibel approach has been applied by at least one other Ninth Circuit panel, in another case involving the Mexican Mafia. Shryock, 342 F.3d 948, 985-86 (9th Cir.2003) (<HOLDING>). 20 . Schoenberg’s challenge to count three is Holdings: 0: holding that even if the statements were improperly admitted any error was harmless since there was overwhelming evidence connecting the defendant to the conspiracy 1: holding that because trial court actually gave part of a jury charge that appellant claimed was improperly omitted and because remainder of courts charge adequately defined one of the legal terms at issue the courts jury charge taken as a whole was not misleading and did not constitute reversible error 2: holding under a plain error analysis that a failure to charge the jury with an essential element did not warrant reversal of the conviction where the evidence supporting that element was overwhelming 3: holding that overwhelming evidence of element of crime rendered miranda error harmless when improperly admitted statement went to same element 4: holding that jury instruction improperly defined element of rico conspiracy charge by not using language consistent with the operation or management test but concluding that the error was harmless | [
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individual may have a possible immigration or criminal violation in the United States. In this instance, two lookouts were placed on the name Sandy Garcia, the first being a one-day lookout based on the perceived irregularity of a Dominican citizen traveling from Buenos Aires to Dulles, as reflected in defendant’s flight itinerary. The second, more general lookout was based on the fact that a previous immigration violation included in the government's records suggested that possible imposters were using the name Sandy Garcia and his corresponding birth date and A number. 3 . This last statement obviously aroused Officer Ho’s suspicion, as it was inconsistent with defendant’s contemporaneous statement that he had been outside the United States for the past two mon 1287 (11th Cir.1991) (<HOLDING>). 6 . To be sure, the unlawful reentry statute Holdings: 0: holding that the fourteenth amendment which makes persons bom in the united states and subject to its jurisdiction citizens of the united states and requires that representatives be apportioned among the states based on population excluding indians not taxed did not make an indian a citizen of the united states 1: recognizing that any party who voluntarily approaches an ins station cannot be said to have been found or discovered in the united states 2: holding that sovereign immunity does not bar extinguishment of united states junior lien in proceeding in which united states was not a party 3: recognizing federal constitutional claim against the united states 4: holding that when a defendant voluntarily approached the immigration officer at the airport it cannot be said that he was discovered in or found in the united states | [
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of Article XVI mandates that all waivers must be in the form of a resolution, which shall be duly adopted by Defendant’s board of directors. Section D continues: The resolution shall identify the party or parties for whose benefit the waiver is granted, the transaction or transactions and the claims or classes of claim for which the waiver is granted, the property of the Corporation which may be subject to execution to satisfy any judgment which may be entered in the claim, and shall identify the court or courts in which suit against the Corporation may be brought. Any waiver shall be limited to claims arising from the acts or omissions of the Corporation, its Directors, officers, employees or agents, and shall be const ian Cmty., 138 Ariz. 378, 674 P.2d 1376, 1383 (Ariz.Ct. App.1983) (<HOLDING>); Martinez v. S. Ute Tribe, 150 Colo. 504, 374 Holdings: 0: holding that federal courts do not have jurisdiction to interpret a tribal constitution or tribal laws 1: recognizing that immunity may be waived 2: holding that tribal corporation waived immunity due to express provision within its charter allowing it to be sued in courts of competent jurisdiction 3: holding that disputes involving questions of interpretation of a tribal constitution and tribal law is not within the jurisdiction of the district court 4: holding that tribal sovereign immunity did not bar rico suit only after concluding that sue and be sued clause in tribal ordinance unequivocally expressed waiver of sovereign immunity | [
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2 . Case No. 16-20042, Docket No, 32, Motion to Avoid Judicial Lien Impairing Homestead Exemption. All future references to the Docket will be to Case No. 16-20042, unless expressly stated otherwise. 3 .Any of the findings of fact herein are also deemed to be conclusions of law, and any conclusions of law herein are also deemed to be findings of fact, and they shall be equally binding as both, 4 . Docket No. 1, Chapter 13 Voluntary Petition. 5 . Docket No. 38, Order Confirming Debtors’ Chapter 13 Plan. 6 . Docket No. 2, Debtors’ Chapter 13 Plan at ¶ 6(g). 7 . Cyprus filed an unsecured proof of claim in the amount of $15,698.45 on March 29, 2016. See Case No. 16-20042, Proof of Claim No. 9-1. 8 . See Tower Loan of Miss., Inc. v. Maddox (Matter of Maddox), 15 F.3d 1347 (5th Cir. 1994) (<HOLDING>). 9 .See Andrews v. Loheit (In re Andrews), 49 Holdings: 0: holding that debtor could not avoid a judicial lien where after accounting for unavoidable liens and mortgages he had no equity in the property and therefore no interest on which to avoid the judicial lien 1: holding that a chapter 13 debtor had standing to avoid a judgment lien to the extent of her exemption amount but not the entire judgment lien 2: holding that chapter 13 debtors were unable to avoid a creditors unperfected secured claim because they lacked standing 3: holding that a chapter 13 debtor lacked standing to avoid a mortgage under 544a3 4: holding that the chapter 13 trustee had standing to avoid liens as impairing exemptions to prevent inequitable distribution of payments caused by debtors failure to avoid lien as impairing exemption | [
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The majority opinion also states without explanation that it would not have been “practical or possible” for the District to establish contacts with Mr. Allen as one of the “nearly two dozen” or “over two dozen” test takers that day. But nothing about the fact that Mr. Allen was one of the select few the District screened and scheduled to take its PAT on that day made it less foreseeable that he might get hurt or fall ill during the PAT or converts the District’s duty to care for all of the test takers into a public duty. At least in earlier cases, we have recognized that a duty of care can flow to a “class” of persons. See Turner, 532 A.2d 662 (explaining that a statutorily mandated special duty is owed to every adjudicated neglected child in the District); cf. Hines, 580 A.2d at 138 (<HOLDING>). Our apparent movement away from that Holdings: 0: holding that the special duty doctrine as an exception to the public duty doctrine was a concept distinct from immunity and did not serve to resurrect an otherwise immune claim 1: holding that the special relationship exception does not apply to the relationship between a student and a school 2: holding that the special relationship exception did not apply because the decedent was not in defendants custody 3: holding that liability foreclosed because there exists no class in the sense that would justify invoking the special relationship exception to the public duty doctrine 4: holding that no complete innocence exception to the doench doctrine exists | [
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his monthly child support obligation. We note, however, that Mother cross-petitioned and received a judgment against Father for child support arrearages. The family court did not make a specific finding of which party prevailed and such a determination is not necessary to resolve the issue here. Even assuming Father was the “prevailing party” on his petition to reduce child support, we nonetheless reject his position that AR.S. § 25-503(E) prevents the family court from awarding fees to the non-prevailing party. ¶ 8 The use of the word “may” in A.R.S. § 25-503(E) provides the family court broad discretion to decide whether to award attorney fees to the prevailing party on a request to modify child support. See Alejandro v. Harrison, 223 Ariz. 21, 24, ¶ 10, 219 P.3d 231, 234 (App.2009) (<HOLDING>). And, contrary to Father’s argument, the Holdings: 0: recognizing that a statutes use of may when describing the courts authority generally connotes discre tion 1: recognizing the medicare statutes broad delegation of authority 2: holding use of word may generally indicates permissive rather than mandatory intent 3: recognizing only state courts may authoritatively construe state statutes 4: recognizing that cases have generally treated statutory exceptions from remedial statutes as affirmative defenses | [
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which the members of the Ford Court stated the constitutional prohibition on the execution of the insane. The plurality recognized society’s abhorrence of inflicting the death penalty on one whose mental illness prevents him from “comprehending” the “implications” of his punishment., Ford, 477 U.S. at 417, 106 S.Ct. 2595 (plurality opinion). There can be no doubt that the first and foremost “implication” of execution — and, in my view, the only one relevant to competency to be executed — is the prisoner’s death. Justice Powell, in concurrence, stated the constitutional rule as follows: If the defendant perceives the connection between his crime and his punishment, the retributive goal of the criminal law is satisfied. And only if the defendant is aware that his death is approaching c ) (<HOLDING>); Grammer v. Fenton (In re Grammer), 104 Holdings: 0: holding that to be valid and binding a release must be executed with full knowledge of the import of what is being signed and with the intent to discharge from liability 1: holding that to be competent under ford a prisoner must have a rational understanding of what it means to be executed 2: holding that a trial courts finding of a fraudulent lien must be supported by competent evidence 3: holding that the test of competency is whether he the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him internal quotation marks omitted 4: holding that speculation while permissible must be rational | [
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have applied the burden-of-proof rules used to enforce the presumption favoring arbitration to contractual jury waivers. See In re Wells Fargo Bank Minn., N.A., 115 S.W.3d 600, 609-10 (Tex.App.-Houston [14th Dist.] 2003, orig. proceeding) (applying presumption of validity to contractual jury waiver — i.e., presuming that jury waiver was knowingly and voluntarily made — based on statement in jury waiver provision itself that waiver was “knowing and voluntary”). The standards governing the enforceability of arbitration clauses are inapplicable to prelitigation contractual jury waiver provisions for several reasons. First, public policy favors arbitration, while the same cannot be said of the waiver of constitutional rights. Compare In re Bruce Terminix Co., 988 S.W.2d 702, 704 (Tex.1998) (<HOLDING>) with RDO Fin. Servs. Co., 191 F. Supp.2d at Holdings: 0: recognizing that public policy favors limiting the duration of spousal maintenance to encourage a transition toward independence 1: holding that public policy favors the exclusion of intentional acts as contained in the mjua policy 2: recognizingpublic policy favors arbitration 3: recognizing that texas public policy favors charitable gifts 4: holding that public policy favors reasonable conduct by consumers regardless of whether a product is defective and does not relieve a consumer of the responsibility to act reasonably | [
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its face’ ” with respect to his retaliation claims. In re Katrina Canal, 495 F.3d at 205 (quoting Bell Atl. Corp., 127 S.Ct. at 1974); see Woods v. Smith, 60 F.3d 1161, 1164-66 (5th Cir. 1995). For similar reasons, these claims do not lack “an arguable basis in law or fact.” Berry, 192 F.3d at 507. Accordingly, we vacate the district court’s judgment in part and remand for further consideration of Burnette’s retaliation claims. Because Burnette’s brief on appeal does not address the district court’s denial of his motions for a temporary restraining order, for appointment of counsel below, for an evidentiary hearing, or for leave to amend his complaint a second time, any objections to the denial of these motions are deemed abandoned. See Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir.1995) (<HOLDING>); Yohey v. Collins, 985 F.2d 222, 225 (5th Holdings: 0: holding that although a pro se litigants pleadings are construed liberally a pro se litigant must still follow the same rules that govern other litigants including the requirement of constructing and supporting arguments with legal authority 1: holding that pro se pleadings will be liberally construed 2: holding that although pro se briefs are liberally construed even pro se litigants must brief arguments in order to preserve them 3: holding that although pro se litigants are entitled to liberal construction of their pleadings pro se litigants must follow procedural rules 4: holding that pro se pleadings are to be liberally construed | [
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v. City of Kotzebue, 627 P.2d 623, 630 n. 10 (Alaska 1981) (citing § 302B to reject a jury instruction that "[eJvery person who, himself, is exercising ordinary care, has a right to assume that every other person will perform his duty and obey the law"). 15 . Restatement (SEconp) or Torts § 302B emt. d. 16 . Restatement (SEconp) or Torts § 302B emt. e. 17 . Id. These examples have been paraphrased. Comment e would also hold an actor liable for the crimes of a third party if the actor has a special relationship with the victim, and the Restatement gives additional examples of such relationships. But as we have discussed above, no such special relationship was present here. 18 . Restatement (SEconp) or Torts § 302B cmt. eH. 19 . See, eg., Fiala v. Rains, 519 N.W.2d 386, 389 (Iowa 1994) (<HOLDING>); Taylor v. Louis, 349 S.W.3d 729, 737 Holdings: 0: holding that a receiver is not liable when he acts as would an ordinarily prudent man in the management of his own affairs 1: holding that the fourth amendment was not violated when police officers with probable cause to believe that a man had hidden marijuana in his home prevented that man from entering the home for about two hours while they obtained a search warrant 2: recognizing exigency to permit warrantless home entry where officer entered home to protect victim of domestic battery who contacted police saying that she was afraid that her boyfriend would seriously harm her 3: holding that it was not foreseeable that an abusive boyfriend would be waiting to attack another man that his girlfriend brought home one night 4: holding defendants girlfriend had authority to consent to search as a joint occupant | [
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for $10,000. See V.R.C.P. 56(e) (“When a motion for summary is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.”). ¶ 30. While we may not make negative inferences from a person’s decision to plead the Fifth Amendment privilege against self-incrimination, “the Fifth Amendment privilege cannot be invoked as a shield to oppose depositions while discarding it for the limited purpose of making statements to support a summary judgment motion.” Edmond v. Consumer Prot. Div., 934 F.2d 1304, 1308 (4th Cir. 1991); cf. United States v. Sixty Thousand Dollars in U.S. Currency, 763 F. Supp. 909, 914 (E.D. Mich. 1991) (<HOLDING>). Confronted with evidence indicating that he Holdings: 0: holding that because claimant had asserted fifth amendment during discovery he may not submit affidavits in opposition to governments motion for summary judgment 1: holding that district court had ample authority to strike claimants affidavit offered in opposition to governments motion for summary judgment in forfeiture action after claimant invoked fifth amendment and refused to answer governments deposition questions 2: holding that party may not rely on its own testimony or affidavits to support its version of disputed fact issue in connection with summary judgment motion where party has asserted fifth amendment right not to answer questions concerning that veiy issue 3: holding that claims raised for the first time in an opposition to a motion for summary judgment are not properly before a court 4: holding that arguments not raised in opposition to a motion for summary judgment are waived | [
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on Davies’ credibility and the weight to be given his trial testimony by the trial court. As this court very recently noted: [I]n order to controvert the Director’s case for revocation for a refusal, pursuant to § 577.041, requiring us to defer to the trial court with respect to its conclusions and its resolution of factual issues, including credibility determinations, the driver need only present evidence that is inconsistent with a reasonable belief of the arresting officer that the driver was DWI. There does not have to be evi dence controverting each and every indi-cia of intoxication on which the Director has introduced evidence in support of a finding of probable cause. Flaiz, 182 S.W.3d at 251. See also Howdeshell v. Dir. of Revenue, 184 S.W.3d 193, 199 (Mo.App. S.D.2006) (<HOLDING>). The Director argues that the situation here Holdings: 0: holding due process required an opportunity for crossexamination when the decision depended on the credibility of individual witness testimony 1: holding that it was permissible for the state to test the credibility of appellants trial testimony by crossexamination 2: holding that the jury is the judge of the weight and credibility given to witness testimony 3: holding that a legitimate factual dispute or credibility determination is presented by the crossexamination of a witness for the director which raises a legitimate credibility dilemma with respect to a material aspect of the directors case 4: holding that it is improper to ask a witness to comment on the credibility of another witness | [
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Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)). For example, a state court injunction available before the deprivation “of any significant property interest” constitutes an adequate pre-deprivation remedy. See id. at 36-37, 110 S.Ct. 2238 (“[t]he State may choose to provide a form of ‘predeprivation process,’ for example, by authorizing taxpayers to bring suit to- enjoin imposition of a tax prior to its payment”); see also Nat’l Private Truck Council, Inc. v. Okla. Tax Comm’n, 515 U.S. 582, 587, 115 S.Ct. 2351, 132 L.Ed.2d 509 (1995) (explaining McKesson); Harper v. Va. Dept. of Taxation, 509 U.S. 86, 101-02, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (applying McKesson to Virginia’s tax laws); Rex Realty Co. v. City of Cedar Rapids, 322 F.3d 526, 529 (8th Cir.2003) (<HOLDING>); McKenzie v. City of Chicago, 118 F.3d 552, Holdings: 0: holding that a court may grant a writ of mandamus if 1 the petitioner demonstrates that he lacks an adequate alternative 2 the petitioner demonstrates a clear and indisputable right to the writ and 3 the court is convinced that issuing the writ is warranted 1: holding that notice of condemnation and availability of a state court injunction writ of mandamus and writ of certiorari in an eminent domain case satisfied due process 2: holding that to grant a writ of mandamus a court in the exercise of its discretion must be satisfied that the writ is appropriate under the circumstances 3: recognizing the right to petition for writ of certiorari as a form of appellate review 4: holding that common pleas erred in setting aside the writ of execution on the basis that the union erroneously filed a writ of execution instead of filing a writ of mandamus | [
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person in danger of death or serious bodily injury.” 18 Pa.C.S.A. § 2301 defines “serious bodily injury” as “[bjodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” ¶ 15 In the case sub judice, Appellant punched Reverend Taylor, who was elderly, in the head and choked him. While fending off the attack, Reverend Taylor blocked his head with his arm and suffered torn ligaments to his right shoulder, for which surgery has been recommended. This was sufficient to demonstrate Appellant recklessly engaged in conduct which placed Reverend Taylor in danger of death or serious bodily injury. See Commonwealth v. Sanders, 339 Pa.Super. 373, 489 A.2d 207 (1985) (<HOLDING>). ¶ 16 Regarding Appellant’s conviction for Holdings: 0: holding evidence insufficient to support kidnapping in four rapes in which 1 attacker held knife to victim and forced her into car where he raped her 2 assailants forced their way into victims home walked victim through dining room into kitchen put dish towel over her face and raped her 3 attackers forced way into victims apartment one pulled out gun took victim to couch for oral sex then took her into adjoining bathroom raped her and threatened to rip out phone and 4 assailants forced their way into victims apartment at gunpoint put hand over victims mouth walked her toward kitchen and then to bedroom checking first to see if anyone was present and then raped her 1: holding the defendant was not entitled to a charge of involuntary manslaughter where there was no evidence that he involuntarily pulled his gun and shot the victim noting the act must be unintentional to constitute criminal negligence 2: holding removal of victim from one room to another was not mere asportation but sufficient evidence of a separate and independent act 3: holding evidence sufficient for recklessly endangering another person where the appellant grabbed the victim around the neck and pulled her into a room 4: holding that defendants mother had common authority over defendants room in her house even though defendant paid rent and installed a lock in his room where he sought her permission to install the lock and gave her the only other key to the room | [
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residents for the proposition that the public believed the proposed tower would be an eyesore and would diminish property values. The only written evidence pertaining to the survey is a brief description of how it was carried out and copies of numerous responses. The survey is of no value and the Court will disregard it. The Court has no basis upon which to judge the survey The Court does not know how the respondents were selected or how they were questioned. Furthermore, nothing in the record suggests that the survey has any statistical or scientific merit. The Court cannot say that the survey amounts to anything more than evidence of generalized and unfounded opposition to the proposed cell site. See BellSouth Mobility, Inc. v. Gwinnett County, 944 F.Supp. 923, 928 (N.D.Ga.1996) (<HOLDING>). Generalized, nonexpert objections to the Holdings: 0: holding damages do not constitute other equitable relief 1: holding that unsworn pleadings do not constitute proper summary judgment evidence 2: holding that personal disputes do not constitute persecution 3: holding that unsubstantiated personal opinions expressing generalized concerns about the aesthetic and visual impacts on the neighborhood do not amount to substantial evidence 4: holding that an objectors generalized concerns do not constitute substantial evidence | [
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record, as counsel for the INS acknowledged at oral argument. Such misrepresentations of the record are poor advocacy and waste both the court’s and other litigants’ time. We expect better from counsel, including government counsel. Cf. Thomas v. Digital Equip. Corp., 880 F.2d 1486, 1490-91 (1st Cir.1989) (sanctioning a party that made material misrepresentations of the record in its appellate brief). In any event, Neverson’s § 2241 claims provide no basis for vacating his deporta tion order. First, Neverson has withdrawn his argument that the INS’s use of his manslaughter conviction as a ground for deportation represents an unauthorized retroactive application of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). See Choeum v. INS, 129 F.3d 29, 37 (1st Cir.1997) (<HOLDING>). Second, to the extent Neverson’s § 2241 Holdings: 0: recognizing that 1996 amendment to definition of aggravated felony applies retroactively 1: holding that an ij or bia decision that occurs after september 30 1996 is an action taken that triggers iiriras aggravated felony rules 2: recognizing that 1996 amendment specifically applies regardless of date of prior conviction constituting aggravated felony 3: holding that drug felony under state law can constitute an aggravated felony for federal sentencing guidelines purposes even if the same conduct would not constitute a felony under federal law 4: holding that the expanded definition of aggravated felony applies retroactively in actions taken on or after september 30 1996 | [
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is not vague or over-broad. United States v. Kelly, 314 F.3d 908, 912-13 (7th Cir.2003) (interpreting the holding in Ashcroft to only apply to virtual pornography); United States v. Hersh, 297 F.3d 1233, 1254 n. 31 (11th Cir.2002) (same); see also Fink v. State, 817 A.2d 781, 790 (Del.2003) (same); Perry v. Commonwealth, 438 Mass. 282, 780 N.E.2d 53, 56 n. 4 (2002) (stating that Ashcroft was not at issue because materials depicted actual children). Further, because pornography produced with real children is not a category of speech protected by the First Amendment, the statute’s prohibition of these materials does not violate the First Amendment. Ashcroft, 535 U.S. at 246, 122 S.Ct. at 1399; see also New York v. Ferber, 458 U.S. 747, 764, 102 S.Ct. 3348, 3358, 73 L.Ed.2d 1113 (1982) (<HOLDING>); Savery v. State, 819 S.W.2d 837, 838 Holdings: 0: holding that pornography depicting actual children can be prescribed whether or not the images are obscene because of the states interest in protecting the children exploited by the production process 1: holding that the governments interest in the welfare of children embraces not only protecting children from physical abuse but also protecting childrens interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents 2: holding that the first amendment does not protect obscenity or pornography produced with actual children 3: holding that virtual child pornography which did not use images of actual minors was protected expressive speech under the first amendment because it did not harm any real children through its production and continued existence 4: holding that the language of the ohio statute prohibits only images depicting actual children and thus does not violate the first amendment | [
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which concerns “a whole range of easily identifiable and constitutionally proscribable conduct.” Shepard, 983 P.2d at 4. We therefore cannot agree with Shell’s claim of overbreadth. C. We also are unpersuaded by Shell’s assertion that the court lacks jurisdicti 0 N.E.2d 753, 756 (Ind.1986) (same). In keeping with these decisions and our mandate to regulate the practice of law in Colorado, we construe our ban on the unauthorized practice of law to include the practice of law in Colorado federal courts. It is certainly true that the Colorado federal courts can allow individuals to engage in legal practice in federal courts who would not otherwise be allowed to practice law in Colorado state courts. See Sperry v. Florida ex rel. Fla. Bar, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963) (<HOLDING>). Nevertheless, the Supreme Court made clear in Holdings: 0: holding out admission to practice law when not admitted to practice 1: holding that state court could regulate the practice of law in federal courts located in the state 2: holding that ban on unauthorized practice of law did not implicate the first amendment 3: holding that under the supremacy clause a state court could not enforce a prohibition on the unauthorized practice of law against an individual who was permitted to practice law under the rules of a federal court located in the states jurisdiction 4: holding that the unauthorized practice of law constitutes violation of code | [
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that, because Mr. Grant refused to allow a search of his house, he knew that he could refuse consent for a search of his property. Of course, the deputies had already searched the property, thus demonstrating to Mr. Grant that they had an absolute right to search and that his “consent” to any further search was a mere formality which he could not refuse. See Gonzalez v. State, 578 So.2d 729, 733-34 (Fla. 3d DCA 1991). Under the circumstances before us, Mr. Grant could only conclude that refusing consent would be “a futile gesture amounting to no more than ‘closing the barn door after the horse is out.’ ” United States v. Chambers, 395 F.3d 563, 570 (6th Cir. 2005); United States v. Gamez, 389 F.Supp.2d 975, 982 (S.D.Ohio 2005); see also Norman v. State, 379 So.2d 643, 648 (Fla.1980) (<HOLDING>). Norman amply supports Mr. Grant’s position. Holdings: 0: holding that it was unreasonable to believe that womans boyfriend had authority to consent to the search of her purse even though he had authority to consent to the search of the car in which it was kept 1: holding that once initial consent to search has been given passive acquiescence broadens the scope of search 2: holding consent knowing sheriff had already seen marijuana in prior illegal search was acquiescence to authority 3: holding that acquiescence to a strip and body cavity search did not extend the scope of defendants consent to search his person because of the highly intrusive nature of the search 4: holding that defendants voluntary consent to search his apartment dissipated taint of prior illegal search | [
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when asked whether the Plaintiff had a “severe impairment” during the relevant period, and did not bother to list the evidence he reviewed that supported his assessment. (AR at 299.) Significantly, there is no mention whatsoever of fibro-myalgia, an impairment ALJ Cohen found was present in this case. (AR at 13, 307.) The general rule regarding the written reports of medical advisors who have not personally examined a claimant is that such reports deserve little weight in the overall evaluation of disability. Vargas v. Sullivan, 898 F.2d 293, 295-96 (2d Cir.1990). This is because the advisers’ assessment of what other doctors find is hardly a basis for competent evaluation without a personal examination of the claimant. Id.; see also Hidalgo v. Bowen, 822 F.2d 294, 298 (2d Cir.1987) (<HOLDING>); Havas v. Bowen, 804 F.2d 783, 786 (2d Holdings: 0: holding that a treating physicians diagnosis could be rejected for specific and legitimate reasons that are supported by substantial evidence in the record 1: holding that remand was not required and that the aljs failure to mention treating physicians opinion was harmless error because the alj adopted the treating physicians recommendations 2: holding that the testimony of a nonexamining medical advisor does not constitute evidence sufficient to override the treating physicians diagnosis 3: holding that the alj erred in failing to give the findings and assessments of the treating physicians any weight when the medical evidence and claimants testimony supported a diagnosis of cfs 4: holding that the alj properly relied on the assessments of a nonexamining physician and not claimants treating physicians in determining the rfc at step four | [
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mobile home because the comprehensive terms provided in N.C. Gen. Stat. § 20-72(b) had not been met might be germane to our analysis if tort law or liability insurance coverage were implicated. But see N. C. National Bank v. Robinson, 78 N.C. App. 1, 336 S.E.2d 666 (1985) (declining to apply the MVA even where the cause of action was the tort of wrongful conversion because the dispute primarily involved, “not an automobile accident case,” but, rather, security interest and entrustment issues arising out of “a business transaction in which the policies underlying the private UCC law [were] fully implicated”). The fact that the Hayes Court expressly limited its holding to these circumstances has been emphasized by our courts on several occasions. See, e.g., id. at 9, 336 S.E.2d at 671 (<HOLDING>); Roseboro Ford, Inc. v. Bass, 77 N.C. App. Holdings: 0: holding in a case involving denial of coverage under an insurance contract that the location of documentary evidence related to insurance coverage mattered less than the location of the underlying tort suits 1: holding that the plaintiffs asserted legal basis for coverage is irrelevant to the determination of whether the insurance policy provides coverage and instead looking to the facts underlying the claim for coverage 2: recognizing that the virginia supreme court has consistently applied the one year statute of limitation to defamation actions 3: recognizing that the supreme court has consistently applied an analysis keyed to economic realities 4: recognizing that the supreme court in hayes consistently limited its holding that the mva title provisions applied instead of the ucc to cases involving tort law and liability insurance coverage | [
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was imposing a sentence that varied from the guidelines range based on its consideration of the § 3553(a) factors. It is not clear from the record whether the district court granted a six-level variance because it determined that a sentence of seventy-eight months was appropriate notwithstanding the guidelines range, or whether, instead, the district court would have granted a six level variance from the advisory guidelines range even if the guidelines range had been lower, i.e., if the position of trust enhancement had not been applied. Under these circumstances, we hold that the application of the position of trust enhancement was error, that the error was plain, and that the error affected Evans’s substantial rights. See United States v. Armstead, 552 F.3d 769, 785 (9th Cir.2008) (<HOLDING>). We also conclude that the error seriously Holdings: 0: holding that an error in guideline calculation seriously affected the defendants substantial rights because the starting point for consideration of 3553a factors was five months higher than it should have been 1: holding that a plain error did not seriously affect the fairness integrity or public reputation of the judicial proceedings even though the error was assumed to have affected substantial rights 2: holding that although the guidelines should be the starting point and the initial benchmark of calculating a proper sentence the district court should then consider all of the 3553a factors to determine whether they support the sentence requested by a party 3: holding that plain error exists when 1 an error was committed 2 that was plain 3 that affected the defendants substantial rights and 4 the error seriously affects the fairness integrity or public reputation of judicial proceedings 4: recognizing under plain error review that the burden to show that substantial rights have been prejudiced is on the party that failed to raise the issue below and for an error to have affected substantial rights the error must have affected the outcome of the district court proceedings | [
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270 A.2d 702 (1970), appeal dismissed, 402 U.S. 902, 91 S.Ct. 1377, 28 L.Ed.2d 643 (1971); Peoples Exp. Co., Inc. v. Director, Div. of Taxation, 10 N.J. Tax 417, 433 (Tax 1989). Such statutory deadlines may not be relaxed. F.M.C. Stores, supra, 100 N.J. at 424-25, 495 A.2d 1313; Black Whale Inc. v. Director, Div. of Taxation, 15 N.J.Tax 338, 347 (Tax 1995). “Statutes of limitation in tax statutes are strictly construed in order to provide finality and predictability of revenue to state and local government.” Bonanno v. Director, Div. Taxation, 12 N.J. Tax 552, 556 (Tax 1992). See also, F.M.C. Stores Co., supra, 100 N.J. at 424-25, 495 A.2d 1313. Cf. Commercial Refrigeration and Fixture Co. v. Director, Div. of Taxation, 184 N.J.Super. 387, 2 N.J. Tax 415, 419, 446 A.2d 210 (Tax 1981) (<HOLDING>). As explained in Franklin Tp. v. Dep’t of Holdings: 0: holding that after the then twoyear limitation period for the filing of a refund application had passed the state was entitled to assume that its tax revenues need not be refunded under any circumstance 1: holding that a taxpayer only has a refund right after the irs has credited the refund to other underpaid taxes therefore the refund was not part of the bankruptcy estate 2: holding that because the amount of the debtors obligation to the government exceeded the amount of their income tax refund the refund did not become property of the estate and could not be exempted 3: holding that a refund may include additional taxes paid after the filing of a refund claim so long as the total does not exceed the portion of tax paid prior to the administrative claim 4: holding that an erroneous rebate refund revives tax liability because the ultimate source of the irss claim to the amount erroneously refunded is a tax owed | [
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freedom to take advantage of other employment opportunities.” Id. at 578, 92 S.Ct. 2701. Plaintiff argues that a general or dishonorable discharge reflecting lack of fitness for military service triggers such a stigma. The government argues no such stigma has yet occurred. The parties dispute what form of discharge is likely in the case of Major Witt. The government argues that an honorable discharge is most likely. The Court’s own research suggests that 82% of all discharges under DADT have been honorable. Certainly, the distinction of Major Witt’s career would support an honorable discharge. Involuntary separation from military service with an honorable discharge, absent something more, does not infringe upon a constitutionally protected liberty interest. See Sims, 505 F.2d at 862-63 (<HOLDING>); benShalom, 489 F.Supp. at 971-972; Diliberti Holdings: 0: holding that liberty interests are involved only when separation from the military is carried out in such a fashion as to stigmatize the separated member typically this would be a dishonorable discharge 1: holding that liberty interests that are protected by procedural due process are generally limited to freedom from restraint 2: holding that the due process clause protects only those liberty interests created by the state 3: holding that because the legislature had set up no machinery by which taxation of leasehold interests in public property could be carried into effect the legislature had not exercised its power to tax such interests and thus an injunction against maricopa countys assessment of taxes on such interests was appropriate 4: recognizing trial courts flexibility to fashion an award that keeps both parents involved in decisionmaking when such an award is in the best interests of the child | [
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not warrant dismissal of this claim. Sean McGuigan and Ronald Mancuso clearly would have reason to admit to less than what was actually stolen and that the criminal enterprise terminated sooner than it actually did. His assertion that the thefts continued through only September of 2004 would limit his own liability for his participation in the enterprise and would potentially lead to a shorter term of incarceration. Such admissions clearly are not binding on Plaintiff in this civil action. Further, the Court finds that these documents are not properly considered at the motion to dismiss stage because Plaintiff only makes reference to these events in two isolated instances in the complaint, in what is a clear attempt to lay a foundation for when it 232 F.Supp.2d 273, 276 (S.D.N.Y.2002) (<HOLDING>); Madu, Edozie & Madu, P.C. v. SocketWorks Ltd. Holdings: 0: holding issue waived where matter not addressed beyond reference in heading in brief 1: holding an appellant may not use the reply brief to argue issues not argued in the initial brief 2: holding that an extraneous document was not incorporated by a brief reference to it in one paragraph of the complaint 3: holding an argument made in plaintiffs reply brief but not in their opening brief waived 4: holding that the defendant waived an argument by failing to raise it in his appellants brief | [
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a perfect example of what the Supreme Court meant in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), when it said that a capital defendant has the right to present at the sentencing phase all evidence about the “circumstances of the offense.” The circumstances of the murder in this case are key. Of course, it is true that Howard did not have to be the “triggerman” to be eligible for the death penalty. See Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). Eligibility, however, does not mean that capital punishment must be imposed. A jury can sentence a person to death in accordance with the Eighth Amendment only after it considers all of the. mitigating evidence the defendant wishes to present. See Lockett, 438 U.S. at 608, 98 S.Ct. at 2966-67 (<HOLDING>); Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. Holdings: 0: holding that defendants relatively minor participation in the crime is a mitigating factor that sentencer must consider 1: holding that a trial court must not preclude the jury from considering any aspect of the defendants character or circumstances as a mitigating factor 2: holding for a unanimous court that sentencer in capital case must consider an extensive list of nonstatutory mitigating factors 3: holding that sentencing scheme that permitted a limited range of mitigating evidence was unconstitutional because the eighth and fourteenth amendments require that the sentencer not be precluded from considering as a mitigating factor any aspect of a defendants character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death 4: holding that a sentencer may not refuse to consider as a matter of law any relevant mitigating evidence | [
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should not benefit from its own tardiness; it should not be allowed “to enlarge” the period for filing its objections. Further, Appellees state that the statutory framework does not permit the State “[to] manipulate the time period within which its own objections could be filed by delaying in filing the award with the court, despite the mandatory obligation of Section 21.048 of the Texas Property Code.” As stated, “The plain language of a statute is the surest guide to the Legislature’s intent.” Chatha, 381 S.W.3d at 507. Here, the plain language of the statutory provisions reveals that only one provision governs when objections to the commissioners’ award must be filed. That provision is section 21.018(a). See State v. Garland, 963 S.W.2d 95, 97 (Tex.App.-Austin 1998, pet. denied) (<HOLDING>). Undeniably, section 21.048’s language, Holdings: 0: holding that to offset a jurys damage award a separate thirdparty insurance award must cover the same loss which served as the basis for the jury award 1: holding that an award of attorneys fees under supreme court rule 38 precursor to rule 222 did not preempt an award of attorneys fees to which one is otherwise entitled and thus appellant could seek an award of attorneys fees pursuant to section 1577300 which permits an award of fees for a party prevailing in an action against a state agency 2: holding that an attorneys fees award is not appealable until the amount of the award is set 3: holding that the state circuit court did not have the authority to award prejudgment interest for matters occurring prior to arbitration award 4: holding that under plain statutory language starting point for computing deadline to file objections to commissioners award is actual filing date of the award irrespective of whether the state which filed award for commissioners had failed to timely file award pursuant to section 21048 | [
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and M" of section 40-11.5-102(4) "shall be presumed prima facie evidence of an independent contractor relationship between the parties to the lease." Section 40-11.5-102(4) further provides that this presumption may be overcome by clear and convincing evidence of an employment relationship between the parties to the lease "considering only factors not in the lease." Contrary to the position taken in the Panel's answer brief, we conclude that, under qualifying cireumstances, the presumption of an independent contractor relationship under section 40-11.5-102(4) could apply to the determination of the status of a worker as an employee or independent contractor for unemployment tax liability purposes. See Frank C. Klein & Co. v. Colo. Comp. Ins. Auth., 859 P.2d 323, 325-26 (Colo.App.1993) (<HOLDING>); see also Ch. 296, see. 1, § 40-11.5-102, 1990 Holdings: 0: holding that the trial courts authority to initiate workers compensation benefits before the final adjudication was not divested by the legislature and was consistent with the stated purpose of the workers compensation act 1: holding that provisions of section 40115102 are applicable to the determination of the status of truck drivers as employees or independent contractors under the workers compensation act and discussing legislative history indicating intent to apply these provisions both to workers compensation and unemployment compensation matters 2: holding that the parties choiceoflaw agreement as relating to workers compensation was appropriately avoided where it offended state public policy as reflected in express provisions of the pennsylvania workers compensation act 3: holding that legislature clearly intended that workers compensation act and unemployment security act be construed together thus prohibiting worker from receiving both unemployment compensation and workers compensation payments for same period 4: holding that the provisions of the workers compensation act must be satisfied or the action is not maintainable in the courts | [
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support for its conclusion that the firearm prohibition, found in § 5D1.3(d)(l), was a standard condition of a felon’s supervised release because “the specific condition that Defendant not possess a firearm is largely only a clarification of the more general mandatory condition that he not break the law.” Id. at 94. Despite Asuncion-Pimental’s reference to the illegality of a felon’s possessing a firearm, later cases have clarified that this was not the dispositive factor in the case. Instead, the Second Circuit has extended its holding to encompass all of the conditions of supervised release recommended in § 5D1.3(d), as long as the defendant meets the specific prerequisites enumerated by the Sentencing Guidelines. See, e.g., United States v. Thomas, 299 F.3d 150, 154 (2d Cir.2002) (<HOLDING>); cf. id. at 154-55 (holding that a condition Holdings: 0: holding that the failure to articulate orally that conditions 5d13d2 and 3 apply to a defendants sentence of supervised release does not create a conflict with the judgment imposing these conditions 1: recognizing district courts wide latitude in imposing supervised release conditions 2: holding that 3583e2 allows a district court to modify the conditions of supervised release without extending the term of that release 3: holding that further supervised release may be ordered as a sentence for violation of supervised release 4: recognizing that probation officers are mandated to enforce a sentencing courts terms and conditions of supervised release | [
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as an “an unlawful act under subsection (a) of section 1311 of this title.” See 33 U.S.C. § 1365(f)(1). In turn, 33 U.S.C. § 1311(a) provides that “the discharge of any pollutant by any person shall be unlawful.” The term “the discharge of any pollutant” is defined as the “addition of any pollutant to navigable waters from a point source,” 33 U.S.C. § 1362(12), while “navigable waters” is defined as “the waters of the United States, including the territorial seas,” 33 U.S.C. § 1362(7). Congress intended the latter term to be given “the broadest constitutional interpretation.” United States v. Rivera Torres, 826 F.2d 151, 154 (1st Cir.1987) (quoting Conference Report on Section 2770, reprinted in 1 A Legislative History of the Water Pollution Control Act Amendments of 1972, at 178) (<HOLDING>). Yet, it is unclear whether or not a river Holdings: 0: holding that regulations pur porting to reach wetlands whose degradation or destruction could affect interstate or foreign commerce were beyond statutory authorization because they would include intrastate waters that need have nothing to do with navigable or interstate waters 1: holding that wetlands adjacent to navigable waters are included in the term territorial waters 2: holding that a worker injured on actual navigable waters in the course of employment is covered under the lhwca 3: holding that federal maritime law and not state law applies to all actions for wrongful death in navigable state waters 4: holding that the evident breadth of congressional coneern for protection of water quality and aquatic ecosystems supported the army corps of engineers interpretation of waters of the united states to encompass wetlands adjacent to waters as more conventionally defined | [
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denial of his 28 U.S.C. § 2254 petition challenging his “three strikes” sentence for drug possession as cruel and unusual punishment. We have jurisdiction under 28 U.S.C. § 2253. We affirm. Le contends his sentence under California’s “three strikes” law violates the Eighth Amendment’s prohibition against cruel and unusual punishment. We conclude that the California state courts did not unreasonably apply clearly established law in upholding Le’s sentence. See Ewing v. California, — U.S. -, 123 S.Ct. 1179, 1190, 155 L.Ed.2d 108 (2003) (acknowledging broad discretion possessed by legislatures and holding that three-strikes sentence of 25 years to life for felony grand theft was not grossly disproportionate); Lockyer v. Andrade, — U.S. -, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003) (<HOLDING>). The district court therefore properly denied Holdings: 0: holding that the sixth circuit erred in granting habeas relief because the state courts upholding of jury instructions and verdict forms regarding the weighing of aggravating and mitigating factors was not contrary to or an unreasonable application of clearly established federal law citation and internal quotation marks omitted 1: holding that the ninth circuit improperly granted habeas relief because the state courts decision that it was not inherently prejudicial when court spectators wore buttons depicting the murder victim was not contrary to or an unreasonable application of clearly established federal law 2: holding that the federal habeas courts task is to determine if the state courts decision was contrary to or involved an unreasonable application of clearly established federal law as determined by the supreme court of the united states 3: holding that state courts affirmance of two consecutive 25yearstolife sentences for petty theft was not contrary to or an unreasonable application of clearly established federal law 4: holding that the sixth circuit erred in finding that the state courts jury instructions were contrary to clearly established federal law | [
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prejudice. As Plaintiff has not meet the standard for injunctive relief on the presented claims, his claims for injunctive relief are dismissed without prejudice. 2. Americans with Disabilities Act Plaintiff additionally alleges Defendants Marino and Armstrong violated the ADA by failing “to make a reasonable accommodation for the Plaintiffs disability by providing him ... the benefit of access to video teleconference equipment for his May 29, 201[4] [PCR] hearing....” (Docket Entry 1 ¶ 62). The ADA does not create private causes of action against individuals, see Boggi v. Med. Review and Accrediting Council, 415 Fed.Appx. 411, 415 (3d Cir.2011) (individual defendants cannot be sued in their individual capacities under the ADA); Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir.2002) (<HOLDING>), thus, Plaintiff may only bring an ADA claim Holdings: 0: holding that there is no right of recovery against individual defendants under the ada 1: holding that title ii of the ada is not applicable to the federal government 2: holding that there is no individual liability under title vii 3: holding no individual liability under the adea 4: holding there was no individual liability under titles i ii or iii of the ada | [
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Plaintiff contends that the presence of the barges upon his land was grounds for a state claim of private nuisance. In New York, a private nuisance is defined as (1) an interference substantial in .nature, (2) intentional in .origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land and, (5) caused by another’s conduct in acting or failure to act. See Copart Indus., Inc. v. Consol. Edison Co., of N.Y., Inc., 41 N.Y.2d 564, 570, 394 N.Y.S.2d 169, 362 N.E.2d 968 (1977). As a matter of law, the presence of unsightly .objects, or eyesores, does not constitute substantial interference with a person’s property right (even if placed intentionally). See e.g. Dugway, Ltd. v. Fizzinoglia, 166 A.D.2d 836, 837, 563 N.Y.S.2d 175, 176-177 (3d Dep’t.1990) (<HOLDING>). Under the first and fourth prongs of this Holdings: 0: holding that a section 1983 suit against an officer in his or her official capacity is simply another way of pleading an action against an entity of which an officer is an agent 1: holding that an action for consequential damages to property whether the action is brought in contract or in tort is an action for injury to property within the threeyear statute of limitations 2: holding plaintiff could not recover on nuisance action to recover for alleged damage to property he does not own or rent 3: holding that plaintiff could not pursue an action for private nuisance against an adjoining landowner who intentionally placed debris and an uninhabitable trailer in close proximity to main entrance to developers property in order to create an eyesore 4: holding that the medicaid statute did not create an enforceable cause of action against a private health care facility | [
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(11th Cir.1995); Courson v. McMillian, 939 F.2d 1479, 1498 n. 32 (11th Cir. 1991). The relevant inquiry is “fact specific,” Rodgers v. Horsley, 39 F.3d 308, 311 (11th Cir.1994), and a plaintiff must point to a controlling case, decided before the events at issue, that establishes a constitutional violation on “materially similar” facts. Lassiter v. Alabama A & M Univ., Bd. of Trustees, 28 F.3d 1146, 1150 (11th Cir.1994). As emphasized in Lassiter, “pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violated federal law in the circumstances.” Id.; see also Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (<HOLDING>). Absent a controlling and factually on-point Holdings: 0: holding that clearly established means the contours of the right were so clear at the time the officials acted that a reasonable official would have understood that what he was doing violated that right 1: holding that the relevant dispositive inquiry is whether it would be clear to a reasonable state official that his conduct was unlawful 2: holding that for purposes of the second question the right must have been clearly established in a particularized sense such that a reasonable official would have understood that what he was doing violated that right 3: holding that plaintiffs complaint stated a claim for a constitutional deprivation but that the contours of the right at issue were not clearly established and that official was therefore entitled to qualified immunity 4: holding that the contours of the right must be sufficiently clear that a reasonable official would understand that what he or she is doing violates that right | [
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symbols.” Burkes, 953 F.Supp.2d at 179 (internal quotation marks omitted). But it is undisputed that racist symbol was not part of the action figure display that lies at the heart of Ms. Toomer’s racially hostile work environment claim. Ms. Toomer’s argument otherwise is that there is no “standard” that permits a court to determine “as a matter of law” when an African-American perceives a noose. PL’s Objs., ECF No. 99 at 14. Thus, she contends that whether or not the white cord in this case could fairly be described as a noose, she was confronted by “a horrific and frightening image,” and thus she was subjected to a hostile work environment. Id. But that line of reasoning ignores the objective component of the hostile work environment analysis. See Harris, 510 U.S. at 21, 114 S.Ct. 367 (<HOLDING>) (emphasis added). A reasonable observer of the Holdings: 0: holding that a hostile work environment is a form of discrimination that is actionable under the statute 1: holding that a viable hostile work environment claim requires an environment that a reasonable person would find hostile or abusive 2: recognizing hostile work environment discrimination in ada context 3: recognizing that the elements of title vii sexually hostile work environment claims apply to icra sexually hostile work environment claims 4: recognizing a hostile work environment claim under section 1983 | [
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we must first determine whether the issues presented are ripe for review. The State contends that Trujillo’s arguments regarding pretrial bail lack merit and may also be moot because the record demonstrates that a trial date had been set prior to-this court reaching the merits of Trujillo’s arguments. In his reply brief, Trujillo responds that on November 30, 2015, Trujillo pled guilty to aggravated assault, second-degree domestic báttery, and third-degree domestic battery and is in- the custody of the Arkansas Department, of Correction. .However, Trujillo urges us to address ¡the issues presented because his petition . falls within an exception to the mootness doctrine as an issue of substantial public interest. Accordingly, we must determine whether Trujillo’s case is moo 1989) (<HOLDING>); Cain v. Carl-Lee, 171 Ark. 155, 283 S.W. 365 Holdings: 0: holding that the bureau classification of petitioner as a sex offender was final where petitioners scheduled release was only weeks away 1: holding a substantial issue remained despite mootness as to whether conditions could be imposed on a defendants release from state hospital when he was scheduled to stand trial 2: holding the statutory burden is on the defendant to prove he is incompetent to stand trial 3: holding that the state does not have to prove a defendants competency to stand trial 4: holding that the effect of witnesss refusal to testify was virtually the same as if he had not physically taken the witness stand and if he had not taken the stand his prior testimony could not be deemed inconsistent | [
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... — property of the debtor, within one year before the date of the filing of the petition.” It is undisputed that within one year before filing this case, Debtor permitted the $70,000 from Roger Berman to be transferred to his live-in partner’s bank account (the “Wang Transfer”). Ling Wang used $60,000 of these funds to cure mortgage arrears owing on the home in which both she, the Debtor and their 12-year old daughter reside.. The remaining $10,000 has not been accounted for. Debtor admits to having lied to Roger Berman about the purpose of the loan and the ability to repay him and falsely testifying about the same. From these facts, the court readily infers Debtor’s intent to defraud his creditor, Roger Berman. Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1588 (2d Cir.1983) (<HOLDING>). The Wang Transfer presents several badges of Holdings: 0: holding that the transfer of property by the debtor to his spouse while insolvent while retaining use and enjoyment of the property is a classic badge of fraud 1: holding that the debtor could retain exempt property because it was not property of the estate 2: holding that because debtor retained control of property a transfer had not yet occurred 3: holding that spouse could not claim exemption in property that was only property of other spouses estate 4: holding that a spouse is not necessarily an agent of the debtor | [
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v. Rudzewicz, 471 U.S. 462, 478, 485, 105 S.Ct. 2174, 2185, 2189, 85 L.Ed.2d 528 (1985). The Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), delineated the following elements as necessary for a state to acquire jurisdiction over a nonresident defendant: [I]n order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he [must] have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” International Shoe at 316, 66 S.Ct. at 158. Recently, in Syl. Pt. 1, Hill by Hill v. Showa Denko, K.K., 188 W.Va. 654, 425 S.E.2d 609 (1992) cert. denied, — U.S. -, 113 S.Ct. 2338, 124 L.Ed.2d 249 (1993) (<HOLDING>), this Court repeated our standard for Holdings: 0: holding that single substantial act can support exercise of personal jurisdiction 1: holding that although plaintiffs claims were masked in various legal theories they were premised on a single claim of product liability and therefore fell under north carolinas product liability statute 2: holding that a plaintiff may not rely on an unadorned stream of commerce theory to justify the assertion of personal jurisdiction over defendants 3: holding that a cause of action on the theory of strict liability may be properly pled by alleging 1 the manufacturers relationship to the product in question 2 the unreasonably dangerous condition of the product and 3 the existence of a proximate causal connection between the condition of the product and the plaintiffs injury 4: holding that personal jurisdiction can be premised on the placement of a product into the stream of commerce | [
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this date be used for determining his status on August 22, 1996, appears to be a disguised attempt to have this Court review the denial of Nodarse’s March 29, 1999 application by the Social Security Administration, which found that he was not a Cuban/Haitian entrant at that time or on August 22, 1996, because he had not been subject to deportation proceedings during that period. In order for this Court to hear an appeal of a final decision of the Commissioner of Social Security, an action must be brought in district court “within sixty days after the mailing of notice of [a final] decision or within such further time as the Commissioner of Social Security may allow.” 42 U.S.C. § 405(g); see also Bowen v. City of New York, 476 U.S. 467, 478-479, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986) (<HOLDING>); Thompson v. Schweiker, 665 F.2d 936, 940 (9th Holdings: 0: holding that the ats does not waive the united states sovereign immunity 1: holding that the lanham act did not waive states sovereign immunity 2: holding that a state may waive its sovereign immunity 3: holding that in statute authorizing suits against united states limits time period in which such suits may be brought united states retains its sovereign immunity as to any suits brought outside of that time period therefore court does not have subject matter jurisdiction over suit against united states that is barred by statute of limitations 4: holding that although the requirement of filing a complaint within sixty days is a period of limitations and not jurisdictional it must be strictly construed as it is a condition on which the united states agreed to waive its sovereign immunity | [
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unnecessarily, he maintains, because they knew that he was not among the troublemakers. He filed this suit under 42 U.S.C. § 1983 against the corporation (rather than any of the guards), in Wisconsin, a little more than four years later. Although she assumed that Malone’s version of events is correct, the district court dismissed the complaint after screening under 28 U.S.C. § 1915A, concluding that the claim is barred by the statute of limitations. (The judge did not consider other potential problems, such as whether the corporation is a state actor amenable to suit under § 1983 given the lack of any allegation that Wisconsin directed or even influenced the events of which Malone complains, cf. Correctional Services Corp. v. Malesko, 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (<HOLDING>), or how the corporation could be held Holdings: 0: holding that a bivens claim cannot be brought against a federal agency 1: holding that privately operated prisons may not be sued under the bivens doctrine 2: holding that a bivens cause of action cannot be maintained against a federal agency 3: holding no action lies under bivens against a private corporation operating a halfway house under a contract with the bureau of prisons 4: holding that municipal pension boards may not be sued | [
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444. Statements such as “ ‘we’re partners’ ” and “ ‘we look forward to growing together,’ ” when made by experienced negotiators in the course of a collective bargaining agreement negotiation, are not clear and unambiguous promises to renew the subject agreement. Marine Transp. Lines, Inc. v. Int’l Org. of Masters, Mates, & Pilots, 636 F.Supp. 384, 391 (S.D.N.Y.1986) (Weinfeld, J.); see also Media Sport & Arts s.r.l. v. Kinney Shoe Corp., No. 95 Civ. 3901, 1997 WL 473968, at *13 (S.D.N.Y. Aug.20,1997) (Leisure, J.) (finding defendant’s statements that “ ‘FIBA may proceed to act on the enclosed offer without limitation’ ” and “ ‘FL and FIBA are going to make a great team’ ” were not clear and unambiguous promises); Cohen v. Lehman Brothers Bank, 273 F.Supp.2d 524, 529-30 (S.D.N.Y.2003) (<HOLDING>). On the other hand, a situation where Holdings: 0: holding that where it was clear that the court of appeals had limited the issues on resentencing to the one issue raised in the defendants first appeal the district court did not err in declining to consider other issues raised by the defendant on remand 1: holding defendants statement that she would work through the issues raised by plaintiffs about the deal prior to execution of a loan mortgage agreement could not be construed as a clear and unambiguous promise citing media sport arts srl 1997 wl 473968 at 13 2: holding that issues not raised before the trial court cannot be raised on appeal 3: holding that only issues not known at the time of the original trial or issues not available on direct appeal may be properly raised through postconviction proceedings 4: holding that issues not raised in the trial court may not be raised later on appeal | [
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habeas petition was untimely, it cannot satisfy the requirement of a “substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and we therefore deny the motion for a COA. 1 . We need not consider whether the interval tolled by the section 440.10 proceeding is the entire time from initial filing of the motion in the State trial court until denial by the Appellate Division of leave to appeal from the denial of reconsideration, or only the time during which proceedings on the section 440.10 motion were actually pending before the State trial court and the Appellate Division. Compare Bennett v. Artuz, 199 F.3d 116, 119-20 (2d Cir.1999) (dictum stating that entire interval tolls AEDPA limitations period), with Robinson v. Ricks, 163 F.Supp.2d 155 (E.D.N.Y. 2001) (<HOLDING>); see also Hizbullahankhamon v. Walker, 255 Holdings: 0: holding that properly filed application for statecourt discretionary review tolls aedpa limitations period 1: holding that the aedpa statute of limitations is not jurisdictional 2: holding only intervals in which proceeding or appeal is actually pending toll aedpa limitations period 3: holding that aedpa is not applied retroactively to pending habeas petitions 4: holding that the limitations period is not tolled while a federal habeas petition is pending | [
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judge exercised discretion by declining to award the $80 claimed cost of the sneakers as too speculative and uncertain. Although it was error for the trial court to preclude defense counsel from inquiring into Pyle’s possible bias, that error did not have a “substantial and injurious” effect on the issue of the appropriate amount of restitution. Accordingly, the error was harmless. CONCLUSION For the foregoing reasons, the Superior Court’s restitution judgment is affirmed. 1 . This first ruling is referred to in this Opinion as the “Marijuana Ruling." 2 . The trial judge’s second ruling is referred to as the "Threatening Call Ruling.” 3 . Filmore v. State, 813 A.2d 1112, 1116 (Del.2003). 4 . Jenkins v. State, 2004 WL 2743556, at *1-3, 2004 Del. Lexis 549, at *5-10 (Del. Nov. 23, 2004) (<HOLDING>). 5 . McGriff v. State, 672 A.2d 1027, 1030 Holdings: 0: holding that the court lacks jurisdiction over sixth amendment claims because the sixth amendment is not moneymandating 1: holding that the sixth amendment right to counsel does not attach until a prosecution is commenced that is at or after the initiation of adversary judicial criminal proceedings 2: holding that because the violation of probation vop hearing was neither a criminal prosecution nor a formal trial the sixth amendment does not apply 3: holding probation revocation is not a stage of a criminal prosecution 4: holding that a criminal defendant has a sixth amendment right to counsel at trial | [
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§ 1983 for violating a person’s federal constitutional rights when he or she engages in activities “intimately associated with the judicia 49 (6th Cir.1975)). Prosecutors are a proceedings, a prosecutor may receive only qualified immunity when acting in a capacity that is exclusively investigatory or administrative. See, e.g., Buckley, 609 U.S. at 274 n. 5, 113 S.Ct. 2606 (stating that “[o]f course, a determination of probable cause does not guarantee a prosecutor absolute immunity from liability for all actions taken afterwards. Even after that determination, as the opinion dissenting in part, points out, a prosecutor may engage in ‘police investigative work’ that is entitled to only qualified immunity”) (citation omitted); Guzman-Rivera v. Rivera-Cruz, 55 F.3d 26, 28 (1st Cir.1995) (<HOLDING>); Houston v. Partee, 978 F.2d 362, 367 (7th Holdings: 0: holding that while a witness and prosecutor were protected by absolute immunity for their participation in judicial proceedings they were not entitled to absolute immunity on a 1983 claim that they conspired to present false testimony 1: holding that prosecutors have absolute immunity 2: holding that prosecutors are absolutely immune from claims alleging conspiracy to present false testimony but witnesses including police officerwitnesses are not absolutely immune from such claims 3: holding that the prosecutors were not entitled to absolute immunity for any delays or inadequacies in their conduct of the investigation after 1983 plaintiff had been convicted but that they were absolutely immune for their posiinvestigation failure to go into court to seek guzmans release 4: holding that prosecutors are absolutely immune from liability for their knowing or inadvertent failure to disclose materially exculpatory evidence | [
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look at these instruments other than as pieces of one agreement, structured to disguise a speculative, offshore transaction that posed an unreasonably large risk, and was inappropriate and possibly illegal for a regulated Korean life insurance company to enter into. The special purpose entities and intermediaries that were made parties to the contracts were not intended as the real parties in interest. The real parties in interest were KLI and Morgan, and just as KLI owed duties to pay Morgan, Morgan had duties to cooperate with KLI should it wish to mitigate its growing losses and demand an unwind, through the clause 2(e) that KLI insisted on as a precondition of its entering into the deal. See Dalton v. Educ. Testing Serv., 87 N.Y.2d 384, 639 N.Y.S.2d 977, 663 N.E.2d 289, 292 (1995) (<HOLDING>). Morgan executed the documents with clear Holdings: 0: holding that the other party must have adequate notice of the claim in order to defend against it 1: holding that under the implied covenant of good faith neither party to a contract shall do anything which has the effect of destroying or injuring the right of the other party to receive the fruits of the contract 2: holding that a promisor impliedly pledges that it shall not do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the promise 3: holding that where a city enters contract in excess of its statutory power the mere fact that the municipality has received the benefits of the contract which has been performed by the other party does not make the municipality liable either on the theory of ratification estoppel or implied contract in order to do justice to the other party by paying the reasonable value of the property or services 4: recognizing the viability of the coconspirator exception for statements regarding the concealment of evidence or fruits of the crime after the paramount object of the conspiracy has been attained | [
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293 S.C. 8, 13-14, 358 S.E.2d 173, 176 (Ct.App.1987). Because both Settlemeyer and McCluney testified no written document existed governing conveyance of the properties between the parties, we only address the issue of part performance. At trial, McCluney denied an oral agreement existed between the parties in which she was to convey the properties to Settlemeyer. Furthermore, although Settlemeyer testified he thought such an agreement existed between the parties, he stated the parties did not orally express this agreement. Rather, he testified he trusted McCluney to act as he desired. Based on our review of the evidence contained in the record, we hold Settlemeyer did not present clear evidence of an oral agreement between the parties. See Gibson, 293 S.C. at 13, 358 S.E.2d at 176 (<HOLDING>). Without the existence of an oral agreement, Holdings: 0: holding a court must find among other things clear evidence of the existence of an oral agreement for part performance to remove the contract from the statute of frauds 1: holding that if part performance is relied upon to remove the oral agreement from the operation of the statute of frauds clear and convincing proof of performance in pursuance of the alleged agreement must be adduced by the party seeking to enforce it 2: holding that defendant did not breach oral agreement because among other things the plaintiff had not established that the term in question was part of the oral contract 3: holding part performance of an oral agreement necessary to take the oral agreement out of the statute of frauds must be consistent only with the existence of the alleged oral contract 4: holding sufficient part performance of an oral trust agreement is required to remove it from the statute of frauds | [
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employer begins deducting premiums from the employee’s salary for that purpose the employer has a duty to use reasonable efforts to obtain health care coverage for that employee as soon as possible. Furthermore, the employer has a duty to notify the employee if his application for insurance will be treated differently than other employees. See generally City of Brunswick v. Carney, 187 Ga. App. 634 (1) (a) (371 SE2d 201) (1988). Under the facts of this case, we hold that the trial court correctly found that the employer’s decision to submit Dean’s application only to a prospective insurer and not also to the current provider of group insurance for defendant’s other employees constitutes a breach of that duty. See generally Woodman Co. v. Adair, 164 Ga. App. 603 (294 SE2d 579) (1982) (<HOLDING>); Dinnan v. Totis, 159 Ga. App. 352 (283 SE2d Holdings: 0: holding that issues of fact precluded summary judgment on the question of whether an employee was acting within the course and scope of his employment for purposes of insurance coverage when the employee was simply sitting in his vehicle in his employers parking lot waiting for the business to open at the time the accident occurred 1: holding the employer breached the duty owed to its employee by erroneously advising the employee he would continue to have coverage for 30 days following his termination of employment under the employers group policy 2: holding that even when employee was driving employers vehicle employee was not acting within the scope of his employment absent evidence that he had undertaken a special mission at his employers direction 3: holding that where employee gave notice to employer of injury and employer told employee that nothing could be done for him through workmans compensation employer had breached statute and was liable for medical treatment which was reasonable and necessary to restore employee to maximum usefulness 4: holding that employer did not have duty to protect allegedly intoxicated employee from risk that employee would have automobile accident after leaving work | [
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Inc., 863 So.2d 201, 208 (Fla.2003); see also Merkle, 737 So.2d at 542 n. 6 (explaining that after the expiration of a repose period, “the cause of action is extinguished”); Carr v. Broward Cty., 505 So.2d 568, 570 (Fla. 4th DCA 1987) (“At the end of the [repose] period the cause of action ceases to exist.”). Although both statutes of repose and limitations operate to bar suits and claims in relation to specified time periods, they accomplish" different purposes in doing so, A statute of limitations serves to require that a plaintiff with a known cause of action prosecute that claim diligently and within a predictable time that will allow for finality of claims prior to the-potential loss of available evidence over time. - See Statute of limitations, Black’s Law Dictio kr.D.Mass.1997) (<HOLDING>); see also First Sw. Fin. Servs., v. Pulliam, Holdings: 0: holding that provision is a statute of repose and noting that the word extinguished is emphasized because of its substantive effect 1: holding that provision is a statute of repose because by its own terms the provision does not just procedurally bar an untimely claim it substantively extinguishes the cause of action 2: holding that statute of repose was not subject to toiling provision applicable to statute of limitations because among other reasons it would ignore fundamental distinctions between ordinary statutes of limitations and statutes of repose 3: holding that provision has the characteristics of a statute of repose 4: holding that statute was one of repose because it embodies the most distinctive characteristic of a statute of repose the barring of the right to bring an action rather than the remedy prescribed | [
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proceedings ... [under] the Juvenile Court Act of the District of Columbia, not on the right to assistance of counsel under the Sixth Amendment.” Cradle v. Peyton, 208 Va. 243, 245-47, 156 S.E.2d 874, 876-77 (1967). Appellant has cited no controlling legal authority providing that a juvenile defendant has a constitutional right to a transfer hearing before being treated as an adult. The cases he cites provide, at most, that juvenile proceedings, including transfer proceedings, when provided for by statute, “ ‘must measure up to the essentials of due process and fair treatment.’ ” Anderson v. Commonwealth, 15 Va.App. 226, 229, 421 S.E.2d 900, 902 (1992) (quoting Kent, 383 U.S. at 562, 86 S.Ct. at 1058); see Cheeks v. Commonwealth, 20 Va.App. 578, 583-86, 459 S.E.2d 107, 109-11 (1995) (<HOLDING>); see also Lewis v. Commonwealth, 214 Va. 150, Holdings: 0: holding 1 record must affirmatively show summons with which juvenile was served for jurisdiction to vest in juvenile court and 2 no jurisdiction existed despite juveniles attendance because no affirmative showing of service was made 1: holding juveniles statement inadmissible when after being placed in custody police took juvenile to police station and held juvenile in area where adult suspects were held instead of taking juvenile to a juvenile processing office or any of the places listed as an alternative in section 5202 and placing juvenile in specifically designated office for juveniles 2: holding that procedure for juvenile transfer appeal review in circuit court under former code 161269e was jurisdictional and that failure to provide juvenile with statutory review that complied with due process as spelled out in kent required that juveniles convictions be vacated 3: recognizing juveniles right to counsel in certain juvenile proceedings 4: holding that the court without violating due process of the law may conduct a hearing to determine whether to waive juvenile jurisdiction even if the juvenile fails to appear if counsel is present and allowed to participate on the juveniles behalf | [
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Stair provided false information or failed to provide material exculpatory information to the assistant prosecutor,” the district court ruled that summary judgment in favor of the defendants was proper. Autrey now appeals from that determination. DISCUSSION We review de novo the grant of summary judgment by a district court. See Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir.2006). Summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed R. Civ. P. 56(a). A genuine dispute of material fact exists only when, assuming the truth of the non-moving party’s evidence and construing all inferences from that evidence 010) (malicious prosecution under the Fourth Amendment) (<HOLDING>); Matthews v. Blue Cross & Blue Shield of Holdings: 0: holding that the plaintiff must show that there was a lack of probable cause for the criminal prosecution 1: holding that malicious prosecution plaintiff must show inter alia that criminal proceeding was initiated without probable cause 2: holding that a malicious prosecution plaintiff must show inter alia that the criminal proceeding was initiated without probable cause 3: holding that a necessary element for malicious prosecution under virginia law is lack of probable cause 4: holding that the plaintiff must show that the person instituting or maintaining the prosecution lacked probable cause for bringing the action | [
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extend the time for filing the Bank’s expert witness designations; • designated its expert witnesses and provided the Bryce Plaintiffs a report from each; • filed an objection to the Bryce Plaintiffs’ request for a protective order to limit the distribution of information available from the Office of the Comptroller of the Currency (OCC); • filed a motion for in camera inspection of the OCC information to address its claims of privilege; and • filed a motion and a supporting brief requesting reconsideration of the trial court’s order requiring production of the information obtained from the OCC. Based upon the extent of the discovery conducted and this additional activity, the trial court properly concluded that the Bank had substantially invoked the judicial process. See id. at 595-96 (<HOLDING>). The Bank disagrees pointing out that it was a Holdings: 0: holding that good cause did not exist where movant was on notice of information that with some investigation would have led to timely discovery of the basis for the motion to amend 1: holding that a movant that clearly establishes likelihood of success on the merits receives the benefit of a presumption of irreparable harm 2: holding litigation process substantially invoked where movant conducted extensive discovery about every aspect of the merits 3: holding that government was not substantially justified in its litigation position where government conducted a poor investigation of claim failed to verify claimants story unreasonably delayed pursuing and processing litigation of forfeiture claim for thirteen months and where court ultimately found at trial which occurred four years after initial seizure that seized property had independent source and had not been used illegally 4: holding that a discovery exception to a statute of limitation applies only to the discovery of facts not discovery of the law | [
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or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the powe 04 (D.C.Cir.1995); Canadian Fur Trappers Corp. v. United States, 12 Ct. Int’l Trade 612, 615, 691 F.Supp. 364, 367 (1988) (<HOLDING>), aff'd, 884 F.2d 563 Holdings: 0: holding that an individual could recover for acts occurring outside the statutory time period if at least one act occurred within the time period and the acts were part of the same hostile work environment 1: holding that consideration of the entire scope of a hostile work environment claim including behavior alleged outside the statutory time period is permissible for the purposes of assessing liability so long as any act contributing to that hostile environment takes place within the statutory time period 2: holding that a statutory time period is not mandatory unless it both expressly requires an agency or public official to act within a particular time period and specifies a consequence for failure to comply with the provisions 3: holding that in computing time to determine whether an act was performed within a specified period of time under the statute of limitations the first day is excluded and the last day of the period is included 4: holding that an administrative agency is not subject to a contempt proceeding for failure to comply with an order | [
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Offender Act provides that, under certain circumstances, “the court may, without entering a judgment of guilt and with the consent of the defendant: (1) [djefer further proceeding and place the defendant on probation as provided by law; or (2) [sentence the defendant to a term of confinement as provided by law.” OCGA § 42-8-60 (a). Here, Kaylor was initially sentenced under the First Offender Act to fifteen years confinement, with the first four years to be served in confinement and the balance to be served on probation. Kaylor’s claim that the “explicit language of OCGA § 42-8-60 (a) allows for either probation or confinement, but not both, has already been decided adversely to [him].” (Punctuation and footnote omitted.) Mason u. State, 310 Ga. App. 118, 119 (1) (712 SE2d 76) (2011) (<HOLDING>). This is because the First Offender Act Holdings: 0: holding that an issue not raised in the trial court cannot be raised for the first time on appeal 1: holding that claims which were not presented to the motion court cannot be raised for the first time on appeal 2: holding that a claim not raised before the trial court will not be considered for the first time on appeal 3: holding that the trial court did not violate the first offender act by imposing a 15year probated sentence which included as a special condition confinement in a detention center for a designated time 4: holding that imposition of a habitual offender sentence on remand after the trial courts pronouncement of a nonhabitual sentence in the original proceeding does not violate double jeopardy | [
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portion of D-9, and would not submit an amended version, upon the lower court’s request. The defense counsel made this choice without objection. Townsend is therefore proeedurally barred from raising this issue at this point when he did not do so at trial or in his motion for new trial. Davis v. State, 660 So.2d 1228 (Miss.1995); Foster v. State, 639 So.2d 1263 (Miss.1994); Box v. State, 610 So.2d 1148 (Miss.1992). This Court agrees with the trial court’s offer to amend the instruction, which was declined by defense counsel. This Court has found previously that “when contraband is found on premises owned by the Defendant, a presumption of constructive possession arises.” Cunningham v. State, 583 So.2d 960, 962 (Miss.1991); see also Esparaza v. State, 595 So.2d 418, 426 (Miss.1992) (<HOLDING>) (emphasis added). Thus, this Court concludes Holdings: 0: holding evidence insufficient to establish defendant had physical or constructive possession of heroin when no drugs were found on his person and the only drugs discovered on the premises which he shared with the codefendant were secreted out of plain view 1: holding that proof of the discovery of illegal drugs in plain view in the presence or two or more joint occupants of the premises is sufficient to support a conviction for constructive possession 2: holding evidence insufficient for conviction for possession of controlled dangerous substances when the drugs were not found on the person of or in the same room as the defendant but were only found on other persons on the premises 3: holding when drugs are found on premises exclusive control provides significant proof of constructive possession 4: holding that the defendants dominion control and knowledge may be inferred if he had exclusive possession of the premises on which the object was found emphasis added | [
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of this new judge-made rule suggests a return to the former hostility of judges to contracts to arbitrate as attempts to oust courts of their jurisdiction. 5. Engaged in settlement negotiations for years without raising the arbitration clause Finally, the majority argue that arbitration may be waived simply by taking part in settlement discussions. This may be the most insidious part of the majority’s decision on a waiver of arbitration. Allowing mere attempts to settle to have the effect of waiving arbitration is a very pernicious holding. It is also incoherent with essential law and policy. So preferred is settlement of commercial disputes that the supreme court has forcefully articulated a strong public policy encouraging it. See Robbie v. City of Miami, 469 So.2d 1384 (Fla.1985) (<HOLDING>). And when parties attempt to effect a private Holdings: 0: holding that property settlement agreements may be specifically enforced 1: recognizing that a contract which is incomplete uncertain or indefinite in its material terms will not be specifically enforced in equity 2: holding that restrictive covenants are not favored by the law and should be strictly construed as they are an interference with an owners free and full enjoyment of his property 3: recognizing that an insurance contract will generally be enforced as written unless to do so would violate the law or public policy 4: holding settlements are highly favored and will be enforced whenever possible | [
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] | [
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respect to this deadline. See Head v. United States, 626 A.2d 1382, 1384 n. 3 (D.C.1993) (citing Pettaway v. United States, 390 A.2d 981, 984 (D.C.1978)). Third, the court of appeals’ method for addressing motions to recall the mandate includes an initial step in which motions deemed lacking in merit are denied with out further review, which suggests that the prompt and summary denial of Mr. Jones’ motion does not necessarily indicate procedural default. Together, these considerations suggest that the court of appeals, as likely as not, overlooked the untimeliness of Mr. Jones’ motion and simply determined that his claims lacked merit. At a minimum, this Court has “good reason” to question whether the alternative was the case. Cf. Coleman v. Thompson, 501 U.S. at 740, 111 S.Ct. 2546 (<HOLDING>); Jimenez v. Walker, 458 F.3d at 138-39 Holdings: 0: holding that consideration of a claim in a petition for habeas corpus can be barred by failure to comply with state procedural rules 1: holding that a state procedural default will not bar consideration of a federal claim on habeas review unless the last state court rendering a judgment clearly and expressly stated that its judgment rested on a state procedural bar 2: holding that district court correctly applied state law procedural bar to petitioners jury challenge despite state courts failure to indicate that its denial of petition rested on procedural grounds where petitioner never raised facially sufficient jury challenge before any state court and state courts denial of petition could not be construed as a decision on the merits 3: holding that a second or subsequent state petition for postconviction relief filed according to the procedural rules of the state constitutes a properly filed application without regard to the merits of the petition 4: holding that where state procedural rule was mandatory and unwaivable and where government filed motion to dismiss habeas petition based solely on noncompliance with this procedural rule which state court granted without explanation decision appeared to rest primarily on state law | [
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showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights_[Rather,] an accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. Id. at 484-85, 101 S.Ct. at 1884-85; see also Minnick v. Mississippi 498 U.S. 146, 153, 111 S.Ct. 486, 491, 112 L.Ed.2d 489 (1990) (stating “that when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney”); Savino, 82 F.3d at 599-600 (<HOLDING>). Polk, to whom Howard initially confessed, did Holdings: 0: holding that any confession obtained by interrogation reinitiated by police in the absence of counsel is inadmissible unless the defendant reinitiates discussion with police and then confesses 1: holding in a plurality opinion that a confession obtained through a twostep questions first interrogation technique whereby the police deliberately questioned a defendant in custody until that defendant confessed followed by a miranda warning and reiteration of the confession was inadmissible because the police strategy undermined the effectiveness of the miranda warning 2: holding that witness statements in police report inadmissible 3: recognizing that not all statements obtained by the police after a person has been taken into custody are to be considered the product of interrogation 4: holding that fifth amendment protection against selfincrimination requires police to notify suspect of right to counsel and to cut off interrogation once suspect invokes the right absent counsel further interrogation may not occur unless suspect initiates subsequent conversation if police initiate subsequent interrogation there can be no valid waiver of counsel even though police advise suspect of his or her constitutional rights and suspect acquiesces in the interrogation | [
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have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual’s identification, and request consent to search his or her luggage-as long as the police do not convey a message that compliance with their requests is required.” Florida v. Bostick, 501 U.S. 429, 434-35, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (citations omitted). In a nutshell, the rationale behind this general rule is “[t]he Fourth Amendment proscribes unreasonable searches and seizures; it does not proscribe voluntary cooperation.” Id. at 439, 111 S.Ct. 2382. However, the Supreme Court has further stated, “When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no Cir.1994) (<HOLDING>). But cf. United States v. Hawthorne, 982 F.2d Holdings: 0: holding that court must examine totality of circumstances to determine whether substantial evidence supports issuance of search warrant 1: holding that persons knowledge of his right to refuse a consent to search is a factor but not a necessary prerequisite to demonstrating a voluntary consent 2: holding that the government bears the burden of proving voluntary consent under the totality of the circumstances 3: holding threat to obtain a search warrant if individual does not consent to a search is just one factor in deciding whether the totality of the circumstances supports a voluntary consent finding 4: recognizing that consent is an exception to the warrant requirement and that voluntariness of consent depends on the totality of the circumstances | [
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of a patient’s counseling sessions outweighs that patient’s privacy interests.” Id., at 1357. Balancing those conflicting interests, the court observed, on the one hand, that the evidentiary need for the contents of the confidential conversations was diminished in this case because there were numerous eyewitnesses to the shooting, and, on the other hand, that Officer Redmond’s privacy interests were substantial. Id., at 1358. Based on this assessment, the court concluded that the trial court had erred by refusing to afford protection to the confidential communications between Redmond and Beyer. The United States Courts of Appeals do not uniformly agree that the federal courts should recognize a psychotherapist privilege under Rule 501. Compare In re Doe, 964 F. 2d 1325 (CA2 1992) (<HOLDING>); In re Zuniga, 714 F. 2d 632 (CA6) (same), Holdings: 0: recognizing privilege 1: recognizing a federal mediation privilege 2: holding that production of documents without a claim of privilege waives the right to later claim that privilege 3: recognizing commonlaw privilege against selfincrimination 4: recognizing privilege under federal rules | [
"2",
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changes in [his] version of events might be forthcoming.” Id., 357 Ill.Dec. 18, 962 N.E.2d at 933. The court additionally took issue with the trial court’s restrictions on counsel during the cross-examination, noting that the trial court had sustained objections to defense counsel’s cross-examination that inhibited his ability to adequately cross-examine the witness. Id. Accordingly, the court concluded that the trial court erred in admitting the preliminary hearing testimony at trial. Id. We recognize that some jurisdictions have endorsed a complete ban on the use of preliminary hearing testimony at trial, while others have been more permissive of the inclusion of such testimony, based on the nature of the proceedings. See, e.g., People v. Fry, 92 P.3d 970, 972 (Colo.2004) (en banc) (<HOLDING>); State v. Lopez, 150 N.M. 179, 258 P.3d 458, Holdings: 0: holding that the state has no obligation to provide adequate housing 1: holding that because restitution hearings are a part of sentencing and have nothing to do with a defendants guilt or innocence the rules of evidence do not apply 2: holding that confrontation clause protections do not extend to sentencing hearings 3: recognizing that the federal rules of evidence do not apply to sentencing hearings 4: holding preliminary hearings in colorado do not provide adequate opportunity for crossexamination | [
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of Adam's minority. As to Monica, the requirement runs until the end of the alimony term or until she obtains health insurance through employment. 3 . Monica regularly receives the child support and alimony payments required of Russell by the divorce decree. 4 . See Schedule J, dated April 4, 1996. I note that Russell’s monthly income has increased substantially over the $2,383.33 he listed on Schedule I at filing. 5 . The debts at issue here are Russell's obligations to hold Monica harmless from certain of her creditors. Such obligations as Russell himself may have to those creditors (by contract or otherwise in the absence of the divorce decree) are outside the purview of § 523(a)(5) and § 523(a)(15). See, e.g., Ianke v. Ianke (In re Ianke), 185 B.R. 297, 300 (Bankr.E.D.Mo.1995) (<HOLDING>). 6 . Section 523(a)(5) provides: (a) A Holdings: 0: holding that insurance obligation was primary to indemnity obligation 1: holding that there may be an obligation to defend under an insurance policy even though there is no obligation to indemnify 2: recognizing that a divorce decree obligation to hold an exspouse harmless from a debt creates an obligation between the debtor and the exspouse separate from any obligation the debtor may owe to the creditor 3: holding that an alleged oral agreement between a manufacturer and a distributor lacked mutuality of obligation and was enforceable where the distributor had no obligation to sell any specific quantity and no obligation to meet any quotas 4: holding that a debt for attorney fees incurred by an exspouse in a postjudgment divorce contempt proceeding was nondischargeable | [
"3",
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that granting relief in its case will not have been a “futile gesture.” Boyd v. Bulala, 905 F.2d 764, 769 (4th Cir.1990). Essentially, the law “requires a proffer of evidence which would permit a finding for the [moving] party or which would establish a valid counterclaim.” Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F.2d 808, 812 (4th Cir.1988). To prove a meritorious claim or defense, the movant need not show an actual likelihood of success at trial but must make allegations that, if established at trial, would constitute a valid claim or defense. See 12 James Wm. Moore et al., Moore’s Federal Practice § 60.24[2] (3d ed.1999). See, e.g., Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir.1992) (<HOLDING>). For purposes of gauging the movant’s claim or Holdings: 0: holding that regardless of other factors as to harms a movants likelihood of success must carry at least a fair chance of success on the merits in order to warrant interim relief internal quotation omitted 1: holding that although the movant need not establish an ironclad claim or defense which will guarantee success at trial it must at least establish that it possesses a potentially meritorious claim or defense which if proven will bring success in its wake 2: holding that under the sliding scale approach a petitioner had made a sufficiently strong showing of likely success on the merits where he presented a case which raises serious legal questions or has a reasonable probability or fair prospect of success 3: holding that in class action the claim or defense of the representative party must be typical of the claim or defense of each member of the class 4: holding that the movant had to establish both of the first two factors ie likelihood of success and irreparable harm to receive a preliminary injunction | [
"2",
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Family Health did so, and it repeatedly certified to the government, as it was contractually obligated to do, that it had not. As discussed above, Relators have described specific incidences of the well pled “cherry picking” scheme. Therefore, their inability to provide the certifications’ dates, identification numbers, or verbatim content does not preclude them from adequately pleading a false claim. See Lusby, 570 F.3d at 854. As the Seventh Circuit has recognized, a relator is unlikely to have access to the particular certifications, and therefore precluding a plaintiff from asserting a False Claims Act cause of action because the relator does not have access to the particular paperwork would excise “a big bite out of qui tarn litigation.” Id. But cf. Fowler, 496 F.3d at 742 (<HOLDING>). IY. Relators Fail to Allege that the Holdings: 0: holding that the group pleading doctrine survives the pslra as to rule 9bs particularity requirements but does not apply to the pslras scienter requirements 1: holding plaintiffs fraud claim failed rule 9b particularity requirement which in turn meant deceptive trade practices claim failed the particularity requirement 2: holding that plaintiffs must provide more than conclusory allegations to satisfy rule 9bs requirement that circumstances of fraud be pleaded with particularity 3: holding that the plaintiffs failed to meet rule 9bs particularity requirement where they did not present any evidence at an individualized transactional level 4: holding that plaintiffs did not satisfy particularity requirement where plaintiffs assertions were based in part on the statements of unnamed former employees | [
"0",
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our prior qualified-immunity cases have not imposed the requirement. However, we find that the lack of such a specification impairs our ability to carry out our responsibilities e some basis for distinguishing between well-reasoned conclusions arrived at after a comprehensive consideration of all relevant factors, and mere boiler-plate approval phrased in appropriate language but unsupported by evaluation of the facts or analysis of the law.” Protective Committee for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 434, 88 S.Ct. 1157, 20 L.Ed.2d 1 (1968). At least one other Circuit has encountered the same difficulty in the qualified-immunity context that motivates us to act in a supervisory capacity here. See Beck v. Schwartz, 992 F.2d 870, 871 (8th Cir.1993) (<HOLDING>). Our approach differs from Beck’s. We cannot Holdings: 0: holding that district court should not have granted summary judgment solely on basis that a motion for summary judgment was not opposed 1: holding that it was error for the district court to overrule appellants motion for summary judgment without reference to the qualified immunity defense 2: holding that arguments not presented to the district court in response to a motion for summary judgment are waived 3: holding that district court should not have granted summary judgment solely on basis that motion for summary judgment was not opposed 4: holding district court did not err by considering a contract central to the dispute without converting the motion to a motion for summary judgment | [
"4",
"3",
"0",
"2",
"1"
] | [
"1"
] |
also argues that the Magnuson-Moss Act does not apply to its written warranty because, it says, a mobile, or manufactured, home is not a "consumer good” for purposes of the FAA, 15 U.S.C. § 2301(1), and that the Magnuson-Moss Act does not preclude enforcement under the FAA of a binding arbitration agreement contained in a written warranty. We do not decide those issues, because we interpret the arbitration provision not to foreclose McCollough ultimately from suing Homes of Legend. Homes of Legend also challenges the partial summary judgment entered in favor of McCollough. However, that issue is not properly before this Court, because the partial summary judgment is not a final, appealable judgment. See Precision American Corp. v. Leasing Serv. Corp., 505 So.2d 380, 382 (Ala.1987) (<HOLDING>). JOHNSTONE, Justice (dissenting). The trial Holdings: 0: holding that the trial courts rule 54b ala r civ p certification of its partial summary judgment on a single claim leaving open the amount of damages was erroneous therefore the appeal was dismissed for lack of jurisdiction because there was no final judgment 1: holding that the trial courts oral expression in open court of its future intention to render a judgment was not itself a judgment but rather the trial courts written findings of fact and conclusions of law were its judgment 2: holding that entry of final judgment on a claim in a multiparty action pursuant to rule 54b should clearly articulate the reasons and factors underlying the decision to grant 54b certification 3: holding summary judgment order was not a final judgment because it did not dispose of the defendants claim for attorneys fees 4: holding if a judgment determines the applicable law while leaving open questions of fact it is not a final judgment | [
"3",
"1",
"2",
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permitted the Village of Shiocton to enact a floodplain ordinance. with basements below the regional flood level after the Village received a FEMA exception in 1998. The Village of Shiocton is one-half mile south of the Warnings' home. ¶ 117. Thousands of buildings across the state were built in floodfringe areas before the enactment of floodplain regulations. The language in Wis. Admin. Code §NR 116.13(2) cannot be read literally without depriving counties and the DNR of the ability to deal reasonably with these "existing lawful" structures. Wis. Admin. Code § NR 116.03(34). If the law did not afford some reasonable means to address variances for nonconforming structures, it might not pass constitutional muster. Cf. Building Height Cases, 181 Wis. 519, 532, 195 N.W. 544 (1923) (<HOLDING>); County of Sauk v. Trager, 113 Wis. 2d 48, 56, Holdings: 0: holding rehabilitation act applicable 1: holding that in a redistricting case the legislature has the initial responsibility to act but in the event the legislature fails to act the responsibility shifts to the state judiciary 2: holding retroactive application of the act to prosecution that was pending before the effective date of the act was precluded because the act is prospective 3: holding the ada and the rehabilitation act applicable 4: holding that an act of the legislature limiting the height of buildings was not applicable where substantial rights of a party had vested before the act was enacted | [
"1",
"0",
"3",
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] | [
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] |
for factual findings in such cases is “somewhat unclear,” United States v. Grenier, 513 F.3d 632, 635-36 (6th Cir.2008) (collecting cases), but that does not matter here since Sanford does not challenge any of the district court’s factual findings. The parties do not dispute that Sanford’s domestic assault convictions under Mich. Comp. Laws § 750.81(2) qualify as crimes of “domestic violence” (emphasis added) as required by 18 U.S.C. § 922(g)(9). In United States v. Castleman, 695 F.3d 582 (2012), this Court held that to categorically meet the definition of “misdemeanor crime of domestic violence” in § 921(a)(33)(A), a state crime must require “violent force, ... [force] capable of causing physical pain or injury to another person.” Id. d. at 586-87 (quoting Johnson v. United Sta 008) (<HOLDING>); United States v. Nason, 269 F.3d 10 (1st Holdings: 0: holding that conduct designated as a felony under state law but as only a misdemeanor under the controlled substances act does not qualify as an aggravated felony 1: holding that theft from the person of another under wisconsin law is not a crime of violence as a matter of law and can only qualify as such if there are sufficient facts in the indictment to indicate that a serious threat of violence occurred 2: holding that misdemeanor offense of driving while intoxicated constitutes a crime of violence under ussg 4b12a 3: holding south carolina crime of criminal domestic violence of a high and aggravated nature was categorically a crime of violence under ussg 4b121 because its lesserincluded offense criminal domestic violence fell entirely within 4b12ls force clause 4: holding that battery under wyoming law did not necessarily qualify as a misdemeanor crime of domestic violence | [
"2",
"1",
"0",
"3",
"4"
] | [
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] |
will be denied. The hiring evidence is admissible, and Plaintiff presents circumstantial evidence of gender discrimination in the difference between his salary and Gervasoni’s salary in 2000-1. . To rebut Plaintiffs prima facie case, Defendant asserts a gender-neutral justification for Gervasoni’s salary. Defendant asserts a “market forces” defense under the “factor other than sex” exception to the Equal Pay Act. Though Defendant’s justification is directed at the Equal Pay Act claim, it is equally viable as a defense to Plaintiffs Title VII claims. “Title VII incorporates the Equal Pay Act defenses, so a defendant who proves one of the defenses cannot be held liable under either the Equal Pay Act or Title VII.” Maxwell, 803 F.2d at 446. See Gunther, 452 U.S. at 168, 101 S.Ct. 2242 (<HOLDING>). Therefore, if Defendant’s justification is Holdings: 0: holding that there is no individual liability under title vii 1: holding that a title vii plaintiff could not hold coworkers liable in their individual capacities under title vii 2: holding that title vii incorporates statutory epa defenses 3: holding that relief granted under title vii is against the employer not individual employees whose actions constituted a violation of title vii emphasis in original 4: holding claims based on title vii subject to arbitration | [
"0",
"3",
"4",
"1",
"2"
] | [
"2"
] |
one of two possible definitions: (A) [an offense that] has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 U.S.C. § 924(c)(3). The first test is referred to as the elements clause, and the second test is known as the residual clause. A crime is a crime of violence if it satisfies either the elements clause or the residual clause. See id. The defendants argue that armed bank robbery does not meet requirements of the elements clause and that the residual clause is unconstitutionally vague. This Court finds that armed bank robbery is (3d Cir. 2012) (<HOLDING>). Therefore, the Court must look at the Holdings: 0: holding that a conviction under 22039 qualifies as an aggravated felony under the categorical approach 1: holding that a district court cannot use the psrs factual statements when applying the modified categorical approach 2: holding that we need not remand to the bia so that it may apply the categorical approach 3: holding that the categorical approach applies to 924c 4: holding that the categorical approach applies to the identical definition of crime of violence in 18 usc 16 | [
"4",
"1",
"0",
"2",
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] | [
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himself of training and educational opportunities offered by the Bureau of Prisons, see 18 U.S.C. § 3553(a)(2)(D) (directing the sentencing court to consider the need for the defendant’s sentence to provide educational and training opportunities)—was hardly compelling, particularly when juxtaposed with the district court’s reasons for denying Mial’s objection to the six-level enhancement. See Boulware, 604 F.3d at 839-40 (explaining that comparative weakness of a defendant’s argument(s) for a lower sentence is one reason to decline to remand a case for further explanation). Finally, we have little doubt that the district court considered this argument, as it was the only point advanced by counsel, and the Government specifically addressed it in its sentencing argument. See id. at 839 (<HOLDING>). For these reasons, we conclude that, even Holdings: 0: holding that when a defendant raises a nonfrivolous argument for a lower sentence the record must show that the district court considered it and explained the basis for rejecting it 1: holding that the record must reflect both that the district judge considered the defendants argument and that the judge explained the basis for rejecting it 2: holding argument not waived for failure to object where party previously raised argument and district court considered and rejected it 3: holding that even if the district court erred by not adequately explaining its reasons for rejecting boulwares argument for a belowguidelines sentence we are quite confident that the district court undertook that analysis and considered boulwares argument 4: holding the government waived its argument on appeal that the defendant did not have standing to challenge a search when it failed to raise the argument to the district court | [
"4",
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] | [
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while the federal habeas corpus petition was pending, Petitioner filed a second PCRA petition, raising a single claim based on Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which held that execution of mentally retarded criminals violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The PCRA court dismissed Appellee’s second PCRA petition without a hearing because Appellee’s federal habeas corpus petition was pending. Appellee appealed to our Court, requesting a remand to the PCRA court on his Atkins claim. The Commonwealth did not oppose Appellee’s request. On October 21, 2003, this Court reversed the PCRA court’s order and remanded for further PCRA proceedings, citing Commonwealth v. Whitney, 572 Pa. 468, 817 A.2d 473 (2003) (<HOLDING>). Commonwealth v. Hackett, 575 Pa. 49, 834 A.2d Holdings: 0: holding that because an untimely pcra petition was premised on claims that were cognizable under the pcra the statutory writ of habeas corpus was unavailable 1: holding that the plain meaning of 2244d2 is that the statute of limitations is tolled during the pendency of any properly filed federal habeas corpus petition 2: holding that section 236e does not strip the court of jurisdiction to consider the merits of petitioners habeas corpus petition 3: holding that the pendency of a petitioners federal habeas corpus petition does not divest a trial court of jurisdiction to address a pcra petition 4: holding that a federal district court has jurisdiction to stay an execution prior to the filing of a formal habeas corpus petition | [
"1",
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1 Farnsworth, supra note 19, § 4.28, at 585. 27 Deminsky, 259 Wis. 2d 587, ¶ 27; Discount Fabric House, 117 Wis. 2d at 602 (quoting Johnson v. Mobil Oil Corp., 415 F. Supp. 264, 268 (E.D. Mich. 1976)); Leasefirst, 168 Wis. 2d at 89-90. As Professor Arthur Allen Leff described it, procedural unconscionability refers to "bargaining naughtiness." Arthur Allen Leff, Unconscionability and the Code — The Emperor's New Clause, 115 U. Pa. L. Rev. 485, 487 (1967) (quoted in 1 White & Summers, supra note 20, § 4-3, at 213). 28 Discount Fabric House, 117 Wis. 2d at 602 (quoting Johnson, 415 F. Supp. at 268); see also Wis. Stat. § 425.107 (unconscionability factors under the Wisconsin Consumer Act). 29 See Pietroske, Inc. v. Globalcom, Inc., 2004 WI App 142, ¶ 6, 275 Wis. 2d 444, 685 N.W.2d 884 (<HOLDING>). See also 8 Lord, supra note 15, § 18.8, at 48 Holdings: 0: holding that the plaintiff had failed to establish procedural unconscionability since he had a reasonable opportunity to consider the agreement and the arbitration clause was clearly set forth in the contract 1: holding in the context of a forumselection provision that the balancing of procedural and substantive unconscionability requires courts to consider each questionable forumselection clause on a casebycase basis and precludes the development of a brightline rule 2: holding claim of unconscionability requires showing of both procedural and substantive elements 3: holding that courts apply the procedural law of the forum and the substantive law of the jurisdiction originating the claim 4: holding that courts should address a procedural unconscionability defense to the enforcement of an arbitration provision | [
"3",
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