Italian Sugar Art of Ivana Bonardi uses the data collected to improve your experience with us and through your consent offer tailor-made offers, save you time, and make your purchases even more comfortable.
The following information is prepared, pursuant to art. 13 of EU Regulation 2016/679 ("Regulations"), by ITALIAN SUGAR ART of Ivana Bonardi ("ITALIAN SUGAR ART"), in relation to the personal data of users collected during access and / or registration on the website www. italiansugarart.it ("Site") and / or the making of a purchase on the Site and / or the request for assistance and customer care services of the Site (cumulatively, the "Site Services").
ITALIAN SUGAR ART operates on the Site, as a provider of the registration service and the sales service.
The personal data of the user are therefore processed by ITALIAN SUGAR ART.
The information that follows is made, therefore, pursuant to art. 13 of the Rules, with reference to ITALIAN SUGAR ART.
As the provider of the registration service, of the seller on his own, as well as the subject in which, exclusively, the identification and implementation of the technical and organizational procedures that govern the processing of personal data residing on the Platform, ITALIAN SUGAR ART assumes the role of "data controller" of the user's personal data, pursuant to art. 4.7) of the Regulations, for the purposes illustrated in sections 4, 5, 6, 7, 8, 9, 10 11 and 12 of this information.
ITALIAN SUGAR ART of Ivana Bonardi, with registered office in Via Giordanao Bruno, 4 20154 Milan (MI), VAT number / tax code 09568870969 , e-mail info@italiansugarart.it , is the owner of the processing of personal data of users collected in the use of Site Services and, in particular, access and / or registration to the Site and / or the making of a purchase on the Site and / or the request for assistance and customer care services of the Site.
allow registration to the Site and use of the services reserved for registered users, including the possibility to purchase online through the Website.
execute requests sent by the user himself.
The legal basis for this processing is the fulfillment of the contract or, as the case may be, the execution of pre-contractual measures taken at the request of the party concerned (Article 6.1.b) of the Regulation).
For this purpose, ITALIAN SUGAR ART will process the user's data for the time strictly necessary for the performance of the individual processing activities (eg: registration data will be processed until the account is closed, taking into account the technical times required for the same; the data necessary for the execution of the purchase contract, will be processed until the delivery of the product or, in case of non-delivery, until the termination of the contract), provided that, once this deadline has expired, ITALIAN SUGAR ART may store the data for purposes and for the maximum retention periods referred to in sections 8, 9,10,11 and 12 of this informative note and / or, in any case, in the cases established by the Regulations and / or by the law.
With the express consent of the user, ITALIAN SUGAR ART will process the personal data of the user to send information and promotional communications, including the newsletter, discount coupons and special offers, related to products and / or services of their own and / or third parties as well as for direct sales and market research, by e-mail and by postal service.
The legal basis of this processing is the user's express consent (Article 6.1.a) of the Rules).
The provision of data for the purpose of generic marketing is optional: there is no legal or contractual obligation on the user to provide such data for this purpose and / or to give consent to the processing of his personal data for this purpose.
For the purpose of generic marketing, ITALIAN SUGAR ART will process the user's data until the revocation of consent and / or the exercise of the right of opposition and, in any case, no more than four years from the data collection, reserving the right, before expiry of this deadline, to ask the user to renew consent and / or update the data.
ITALIAN SUGAR ART will process the e-mail coordinates (ie the e-mail address) provided by the user in the context of the purchase of a product and / or service offered and sold on the Website directly by ITALIAN SUGAR ART, to allow ITALIAN SUGAR ART the direct sale of similar products or services (and therefore the sending by e-mail to the user of promotional communications concerning such products and / or services) without the express and prior consent of the interested party, as provided art. 130, fourth paragraph, of the Privacy Code, and on condition that the user does not exercise the right of opposition with the methods indicated below (so-called soft-spam).
The legal basis for this treatment is art. 130, fourth paragraph, of the Privacy Code that expressly allows the processing in question.
through the appropriate link in any promotional communication sent by ITALIAN SUGAR ART.
For the purpose of soft-spam, ITALIAN SUGAR ART will process the user's data up to the exercise of the right of opposition and, in any case, no later than 4 years from collection, except for the purchase details that will be stored and processed for soft-spam purposes for a period of 24 months from collection.
The provision of data for the purpose in question is optional: there is no legal or contractual obligation on the user to provide such data for this purpose. Failure to provide data for the purpose of soft-spam or the opposition to such treatment will not have any consequence on the possibility of the user to register on the Site and / or make purchases on it.
in the event that the user opposes the processing of his data for soft-spam purposes, his data will no longer be processed by ITALIAN SUGAR ART for this purpose and will be retained by ITALIAN SUGAR ART only if there is a other legal basis (such as, for example, the assessment, exercise or defense of a right in court or administrative).
send, by e-mail or by post, and / or display on the Website to users personalized offers, that is combined with the cluster in which the user has been entered and, therefore, of his presumed specific interest.
All the processing steps, including the final decision about the promotional communication to be sent or displayed to the user on the basis of the cluster (s) they belong to, take place completely automatically, without any human intervention, on the basis of an algorithm whose parameters they have been previously set by ITALIAN SUGAR ART.
The decision based solely on automated processing, including profiling, produces legal effects affecting the data subject (ie the limitation of his freedom of choice) and is permitted by the exemption reason pursuant to art. 22.2.a) of the GDPR, as it is necessary for the execution of the contract between the data controller and the data subject and / or in any case connected to this contract and its validity and effectiveness.
challenge the decision taken by ITALIAN SUGAR ART (ex: inclusion in a given cluster).
The legal basis of this processing is the explicit consent of the interested party (Article 21.1.c) of the Rules).
For the purpose of profiling for marketing purposes, ITALIAN SUGAR ART will process the user's data until the revocation of the consent and / or the exercise of the right of opposition and, in any case, no later than 12 months from the collection.
The provision of data for the purpose of profiling for marketing purposes is optional: there is no responsibility for the user a legal or contractual obligation to provide such data for this purpose and / or to give consent to the processing of his data for that purpose. purposes.
the failure to provide data for the purpose of profiling for marketing purposes and / or the failure to provide consent to such processing and / or revocation of such consent and / or the exercise of the right of opposition will not have any consequence on the possibility of user to register on the Website and / or to make purchases on the same.
ITALIAN SUGAR ART will process user data for general assistance and customer care activities and then to respond to requests for information from users or to respond to complaints, reports, disputes and in order to allow the user, if desired , to release a review.
The legal basis of this processing is the execution of pre-contractual measures taken at the request of the interested party (article 6.1.b, last sentence of the Regulation) or, as the case may be, the legitimate interest of ITALIAN SUGAR ART (Article 6.1 .f) of the Regulations).
ITALIAN SUGAR ART is a legitimate interest in responding to requests for information and / or reviews and / or complaints and / or complaints and / or complaints from users of the Site (to which, moreover, ITALIAN SUGAR ART is required to respond, also on the basis of the legislation referred to in the Consumer Code). This legitimate interest of ITALIAN SUGAR ART also coincides with the legitimate interest of the users of the Website who make the requests and / or reports and / or disputes and / or complaints in question and, therefore, in the context of the relationship with ITALIAN SUGAR ART, we can reasonably expect them to expect their personal data to be used by ITALIAN SUGAR ART to give feedback.
The legitimate interest of ITALIAN SUGAR ART identified in this way can be considered prevalent on the fundamental rights and freedoms of the interested party, also due to such reasonable expectations and the relationship between the interested party and ITALIAN SUGAR ART and in consideration of the nature of the data processed. and the coincident interest of the same interested parties.
In any case, the user has the right to oppose, at any time, for reasons related to his personal situation, to the processing of personal data concerning him for the purpose in question (ie assistance and customer care).
In the exercise of the right to object to the processing of data for assistance / customer care purposes, ITALIAN SUGAR ART abstains from further processing the personal data of users for this purpose, unless it proves the existence of binding legitimate reasons to proceed with the treatment which override the interests and rights and freedoms of the data subject or for the establishment, exercise or defense of a right in court.
The provision of personal data for the purpose in question is optional: there is no legal and / or contractual obligation to communicate data; however, given the purpose of the processing, the failure to communicate data and / or the exercise of the right of opposition may make it impossible to respond to requests and / or complaints and / or complaints and / or complaints of users, if the response to these requests implies the processing of personal data of the user.
For this purpose, ITALIAN SUGAR ART will process the user's data for the time necessary to perform the requested activities and, therefore, in particular, for the time necessary to provide the information requested by the user or to respond to complaints and / or reports. and / or to the complaints presented by the user or to publish the review issued by the user.
ITALIAN SUGAR ART will process the personal data of users in order to prevent the misuse of its services and, in particular, the non-payment of purchases made on the Site, including through monitoring of user behavior. This treatment will take place through an automated system that operates on the basis of the rules set by ITALIAN SUGAR ART and that takes into account the user's history regarding the payments made on the site.
The legal basis of this processing is the legitimate interest of ITALIAN SUGAR ART (article 6.1.f) of the Regulations).
In any case, the user has the right to object, at any time, for reasons connected with his personal situation, to the processing of personal data concerning him / her for the purpose in question (ie fraud prevention).
All the stages of the treatment, including the analysis of the system to decide whether a user is a good or a bad payer and the decision about the resolution of the purchase contact, in the latter case, take place in a completely automated way, without any intervention human, based on an algorithm whose parameters were previously set by ITALIAN SUGAR ART and which provides for the termination of all contracts related to subjects identified by the system as "bad payers".
The decision based solely on automated processing, including profiling, produces legal effects affecting the data subject (ie the termination of the purchase contract) and is permitted by the exemption reason pursuant to art. 22.2.a) of the GDPR, as it is necessary for the execution of the contract between the data controller and the data subject and / or in any case connected to this contract and its validity and effectiveness.
challenge the decision taken by ITALIAN SUGAR ART.
For the purpose of preventing the misuse of the Website Services, ITALIAN SUGAR ART will process the personal data of users for 24 months from collection.
failure to provide personal data for the purpose in question or opposition to the use of such data for this purpose will not have any consequence on the user's ability to register on the Site and / or make purchases on the same.
in the case of exercising the right to object, ITALIAN SUGAR ART abstains from further processing the personal data of users for this purpose, unless it proves the existence of binding legitimate reasons to proceed with the processing that prevail over the interests and rights and freedoms of the concerned or for the establishment, exercise or defense of a right in court.
ITALIAN SUGAR ART will process user data for the execution of administrative and / or accounting and / or tax obligations related to the performance of the Website Services and / or the purchase contract concluded through the Website, such as, by way of example, keeping the accounting records and issuing the sales invoice.
The legal basis of this treatment is the fulfillment of legal obligations to which ITALIAN SUGAR ART are subject.
The provision of data for the purpose in question is mandatory, because their processing is necessary to allow ITALIAN SUGAR ART to fulfill legal obligations on the same. Any refusal to provide data for this purpose will make it impossible for the user to use the Website Services and, in particular, to conclude the purchase contract through the Website.
For this purpose, ITALIAN SUGAR ART will process the user's data until the expiry of the terms of the law provided for the execution of each administrative-accounting and fiscal fulfillment and / or for the retention times required by law for the preservation of the relative documentation .
receive and respond to requests for the exercise of rights in the matter of protection of personal data provided for by the Regulations and carry out all consequent activities.
The provision of data for the purpose in question is mandatory, because their processing is necessary to allow ITALIAN SUGAR ART to comply with legal obligations as well as the user to exercise the rights that the law or the contract assign to him. Any refusal to provide data for this purpose will make it impossible for the user to exercise such rights.
For this purpose, ITALIAN SUGAR ART will process the data until the expiry of the legal terms provided for the exercise of the right (limitation period and / or forfeiture) or, in the case of exercising these rights, for the time necessary to manage and closure of the practice; in the case of exercising the rights envisaged by the Regulations, the data will be processed until the certification, by the data controller, has fulfilled the request or until the fulfillment itself, depending on which of the two events occurs last.
ITALIAN SUGAR ART will process user data for the assessment, exercise or defense of a right in all relevant offices.
The legal basis of this processing is the legitimate interest (Article 6.1.f) of the Rules.
It is a legitimate interest of the data controller to seek remedies to ensure compliance with their contractual rights or to prove that they have fulfilled the obligations arising from the contract with the data subject or imposed on the data controller by the law. This legitimate interest is, in its turn, grounded in the constitutionally protected right to defense. It can therefore be considered prevalent on the fundamental rights and freedoms of the interested party, also due to the reasonable expectations of the same.
In any case, the user has the right to oppose, at any time, for reasons connected with his personal situation, to the processing of personal data concerning him / her for the purpose in question (ie defense of a right / purpose of justice) .
The personal data provided by the user can be communicated by ITALIAN SUGAR ART to the categories of recipients indicated below.
The subjects to whom ITALIAN SUGAR ART communicates the data, act as external managers of the treatment designated by ITALIAN SUGAR ART through a specific contract (" Data Processors ") or persons authorized to process personal data under the direct authority of ITALIAN SUGAR ART or, in the case of third parties for which the Data Processor uses, as " Sub-Responsible ", pursuant to art. 28.4 of the Regulations, except in cases where the recipients act as independent data controllers, such as, for example, in the case of the Payment Service Provider, or even autonomous data controllers, as in the case of the couriers.
to all those subjects, including public authorities, who have access to data under regulatory or administrative provisions.
to all those public and / or private subjects, natural and / or legal persons (legal, administrative and fiscal consultancy), if the communication proves necessary or functional to the correct fulfillment of the contractual obligations assumed in relation to the Site Services, including the purchase contract, as well as the obligations arising from the law or in the case of assessment, exercise or defense of a right.
The interested party has the right to object at any time, for reasons connected with his particular situation, to the processing of personal data concerning him / her for the purposes set out in sections 8, 9 and 12 of this statement and having as its legal basis the legitimate interest of the data controller.
In the event that the data are processed for direct marketing purposes (and therefore in the case of processing for the purposes set out in sections 5, 6, and 7 of this statement), the data subject also has the right to object at any time. to the processing of personal data concerning him for these purposes, including profiling in so far as it is connected to such direct marketing.
through the named account section.
In the exercise of the right of opposition, the data controller refrains from further processing personal data, unless he demonstrates the existence of binding legitimate reasons to proceed with the processing that prevail over the interests, rights and freedoms of the data subject. or for the assessment, exercise or defense of a right in court.
If the data subject objects to processing for direct marketing purposes, personal data are no longer processed for this purpose.
The interested party has the right to obtain from the data controller (and, therefore, from ITALIAN SUGAR ART) the confirmation that it is or is not undergoing the processing of personal data concerning him and, in this case, obtaining access to the data personal data and the information indicated below.
If personal data are transferred to a third country or to an international organization, the data subject has the right to be informed of the existence of adequate guarantees regarding the transfer, pursuant to art. 46 of the Rules.
The data controller provides a copy of the personal data being processed. In case of further copies requested by the interested party, the data controller may charge a reasonable fee contribution based on administrative costs. If the interested party submits the request by electronic means, and unless otherwise indicated by the interested party, the information is provided in a commonly used electronic format.
The interested party has the right to obtain from the data controller the correction of personal data concerning him without undue delay. Taking into account the purposes of the processing, the data subject has the right to obtain the integration of incomplete personal data, also by providing an additional declaration.
personal data must be deleted in order to fulfill a legal obligation under Union or Member State law to which the controller is subject.
If the data controller discloses the personal data and is obliged to delete them, taking into account the available technology and the costs of implementation, it adopts reasonable measures, including technical ones, to inform the data controllers who are processing the personal data of the request of the data subject to delete any link, copy or reproduction of his personal data.
the interested party opposed the processing in the hypothesis of treatment based on the legitimate interest of the data controller, for reasons related to his particular situation (and, therefore, in case of opposition to the processing of data for the purposes referred to in sections 8, 9 and 12 of this information), pending verification of the possible prevalence of the legitimate reasons of the data controller with respect to those of the interested party.
If the treatment is limited, the personal data object of the limitation are treated, except for the conservation, only with the consent of the interested party or for the verification, the exercise or defense of a right in court or to protect the rights of another natural or legal person or for reasons of a significant public interest of the Union or of a Member State.
The party who has obtained the processing limitation is informed by the data controller before the limitation is revoked.
The interested party can then exercise the right in object in relation to the purposes set out in the following sections of this information: 4.5, 7.
In exercising its right to data portability, the data subject has the right to obtain direct transmission of personal data from one data controller to another, if technically feasible. The exercise of the right to portability is without prejudice to the right to cancellation.
The right to portability must not harm the rights and freedoms of others.
The data controller provides the data subject with information about the actions taken in relation to a request to exercise the rights recognized by art. from 15 to 22 of the Regulations (ie right of access, right of rectification, right of cancellation, right to limit the processing, right to data portability, right of opposition) and referred to in sections 15, 16, 17, 18, 19 and 20 of this informative note (" Rights of the Interested Party"), without unjustified delay and, in any case, within one month from receipt of the request.This deadline may be extended by two months, if necessary, taking into account the complexity and the number of requests. this extension, and the reasons for the delay, within one month from receipt of the request If the interested party submits the request by electronic means, the information is provided, where possible, by electronic means, unless otherwise indicated by the interested party.
If the data controller does not comply with the request, the data controller shall inform the data subject without delay, and no later than within one month of receiving the request of the reasons for the non-compliance and the possibility of filing a complaint with a control and to propose a judicial remedy.
refuse to satisfy the request.
When the data controller has reasonable doubts about the identity of the natural person who submits the request relating to the rights of the interested party, he / she may request further information necessary to confirm the identity of the person concerned.
Without prejudice to any other administrative or judicial appeal, the interested party who considers that the treatment concerning him / her is in violation of the Regulation has the right to lodge a complaint with a supervisory authority, particularly in the Member State in which he normally resides, works or the place where the alleged violation has occurred. The supervisory authority to which the complaint has been lodged shall inform the complainant of the status or outcome of the complaint, including the possibility of a judicial remedy.


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The overwhelming evidence in Lopez v. Smith ,135 S.Ct.1 (2014) cast no doubt he had killed his wife in their house. Police found Smith’s DNA evidence on the body of the dead victim; on the lethal weapon; on jewelry removed from the house where the murder occurred concealed in the trunk of his car. A criminal evidence expert testified the ransacked house resembled a staged robbery. A California jury rendered a guilty verdict.
At the conclusion of the prosecution case, the prosecutor obtained a trial court approved jury instruction defining the crime of aiding and abetting in addition to first degree murder instructions already submitted. Defense counsel objected, arguing he had no notice of the change in prosecution theory. All California appellate courts have rejected this argument, as did the trial court and Court of Appeal in this case, on grounds anyone who aids and abets is as guilty as the principle. The 9th Circuit panel on habeas review disagreed and overruled the California courts.
In Lopez v. Smith the 9th Circuit repeatedly evaded the restrictions imposed on federal habeas corpus jurisdiction mandated by the AntiTerrorism and Effective Death Penalty Act (AEDPA; 28 U.S.C. 2254). Federal law allows habeas relief only “if the state court decision was contrary to, or involved, an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. 2254 (d) (1). Parker v. Mathews, 132 S.Ct. 2148 (2012).
AEDPA also requires federal courts “deference” to state appellate courts in habeas proceedings. The 9th Circuit panel in Lopez cited only their own precedents, and overruled the state court conviction on grounds the state appellate court opinion “unreasonable.” The Supreme Court reversed, concluding the 9th Circuit had “time and again” misinterpreted the facts, finessed Supreme Court law under AEDPA, and ignored deference to state courts.
Lopez v. Smith is a heavily cited per curiam opinion without footnotes, but the dissenting opinion in Deck v. Jenkins, 768 F.3d 1015 (9th Cir.2014) lists an embarrassing number of Supreme Court cases reversing the 9th Circuit for failing to comply with AEDPA. In one Supreme Court case a Justice singled out the 9th Circuit for repeated violations of AEDPA committed by panels’ misapplication of habeas corpus precedent. In addition, the 9th Circuit has ignored or evaded almost every state court death penalty case for the last decade on habeas corpus grounds despite California Supreme Court affirmation on the merits and the penalty.
In Lopez v. Smith, and in innumerable other cases, the 9th Circuit has repeatedly evaded the restrictions imposed on federal habeas corpus jurisdiction mandated by the AntiTerrorism and Effective Death Penalty Act (AEDPA; 28 U.S.C. 2254). Federal law allows habeas relief only “if the state court decision was contrary to, or involved, an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. 2254 (d) (1). Parker v. Mathews, 132 S.Ct. 2148 (2012).
Two years later the 9th Circuit panel amended its 2014 order, and six judges dissented from a denial of rehearing. In scathing language, the dissenting judges cited the repeated 9th Circuit reversals by the Supreme Court. In a footnote, the author of the dissent cited the late Justice Scalia and his list of citations for those cases; Deck v.Jenkins, 814 F.3d 954 (9th Cir. 2016).
Frustrated by 9th Circuit reversals is not a recent event for the Supreme Court. Several years ago the 9th Circuit reversed a California case involving a search and seizure involving the Fourth Amendment. Stone v. Powell, 428 U.S. 465 (1976). Police arrested and searched Powell pursuant to a local vagrancy law and found a weapon involved in his commission of a previous murder. Convicted, the sentence confirmed on appeal, and his petition for habeas corpus denied by the district court, Stone appealed to the 9th Circuit. The panel overruled the conviction on grounds of an unconstitutional vagrancy law.
Not only did the Supreme Court reverse the 9th Circuit, the Justices prevented the court from hearing any future state cases on Fourth Amendment issues. Undeterred, the 9th Circuit has found a circuitous route around this ruling in the civil rights statute. 42 U.S.C. 1983 permits standing to anyone who alleges a civil rights violation to file litigation seeking damages against the individual law enforcement officer and the employer. Because the Supreme Court has held that unlawful use of force on a person in the course of an arrest is an unreasonable seizure under the Fourth Amendment, a circuitous civil action escapes the ruling.
Both these 9th Circuit cases were reversed by the Supreme Court. The decisions were reviewed by Commentator and printed in the Los Angles Daily Journal. Kernan was reversed on the wrong use of “standing” by the 9th Circuit panel. Spokeo was reversed for failure to use the deferential standard of AEDPA.
Three weeks prior to the end of the current Supreme Court term the Justices have reversed four U.S. Court of Appeals Ninth Circuit decisions. Once again, the 9th Circuit has retained the award for the most reversed federal circuit court in the United States. Ignoring Supreme Court precedent and ruling on habeas corpus petitions de novo instead of the deferential mandate required by the Antiterrorism & Effective Death Penalty Act, 9th Circuit judges repeatedly tried to evade the statute by collateral attack of habeas corpus. All petitions for writs in these cases were previously denied by the California Supreme Court and federal district courts. Kernan v. Honojosa, 2016 DJDAR 4604.
Supreme Court animosity toward the 9th Circuit rose sharply in Johnson v. Lee 2016 DJDAR 5160. Filing habeas corpus in federal court requires all prior state court habeas corpus petitioners to have initially exhausted all their claims filed on direct appeal from a conviction in state court. The Supreme Court has previously held the procedural rules of a state court must be “firmly established and regularly followed.” The petitioner in Lee contended the California Supreme Court had not followed this rule.
After the California Supreme Court denied her petition, Lee filed habeas corpus in federal district court. Denied in that venue, she appealed to the 9th Circuit where the panel ordered the warden in California to prepare an analysis of the two year period the California Supreme Court had denied habeas without following the Supreme Court rule. The warden submitted a report but the 9th Circuit panel disliked the results and reversed the conviction for murder.
Reversed and remanded by the Supreme Court, the 9th Circuit panel reversed again. In review of this second decision the Supreme Court discounted the panel again and wrote “[T]he Ninth Circuit decision profoundly misapprehends what makes a state procedure adequate.” The California Supreme Court had firmly established and regularly followed the federal rule.
The Supreme Court added that federal habeas corpus will not lie when a petitioner does not allege trial court error on appeal from state court judgment of conviction. Lee never raised the alleged claim of procedural error on appeal from the judgment in state court. The Supreme Court reversed again. A California law professor commented that California had “notoriously unclear habeas procedures.” Apparently he has not read 9th Circuit reversals on habeas corpus.
The Supreme Court discussed these issues in some detail and explained the distinction between the two elements. The justices concluded the 9th Circuit panel failed to satisfy both. “Particularization” refers to personal injury; “concreteness” requires a real injury, not an abstract one. The Supreme Court reversed and remanded for the 9th Circuit panel to apply these rules.
Unquestionably, procedural rules and their application lack dramatic impact. Yet, had the 9th Circuit decisions prevailed, an inmate serving a sentence for murder would have been released. Johnson v. Lee was tried in 1997. In Kerman v. Hinojosa the inmate was serving nineteen years for armed robbery. In both these cases retrial would have been highly unlikely and both inmates released.
Despite these cases, a 9th Circuit panel continued to reverse state courts collaterally on habeas corpus. In Currrie v. McDowell, 2016 DJDAR 5486, a murder case tried in 1995, the panel reversed the state court conviction on grounds the prosecutor peremptorily challenged a black juror under the rule in Batson v. Kentucky, 476 U.S, 79 (1986). The Batson decision and its result, invented by the Supreme Court without judicial precedent and mandating a new trial absent any legal error, are grossly disproportionate to the crime and completely unrelated to the trial and jury verdict. In Currie, a legally error free trial is reversed after two decades for excusing a juror. With a retrial unlikely, the 9th Circuit majority panel releases a convicted murderer.
In Currie, the murder conviction was tried by a California trial judge who denied the Batson motion; appeal to the Court of Appeals denied; review by the California Supreme Court denied; petition for a writ in federal district court denied. But the 9th Circuit three judge panel who have never tried a criminal case reversed fifteen judges. A1995 case ready for the Supreme Court.
That a murder case should be reversed by a federal court rendered in a solid conviction is disgraceful. The killer will go free on evidence entirely unrelated to the crime. And this 9th Circuit practice has been repeated repeatedly resulting in injustice to the people of the state.
The U.S. Constitution includes habeas corpus applicable to federal courts. No duplication of this rule in the Constitution applies to the states, and for over a century the federal court s never applied its Constitutional language to state courts except in rare cases involving sentencing. In Fay v. Noia, 372 U.S. 391 (1963) a 6-3 decision, Justice Brennan discovered an historical common law indigenous to habeas corpus and applicable to state court judges who ruled on federal questions.
As Congress continued to expand federal law, the federal courts began reviewing state court decisions involving questions of federal statutory and Constitutional questions. In time, the Supreme Court removed 9th Circuit habeas corpus jurisdiction in Fourth Amendment cases. Later, the Court ended 9th Circuit habeas review of state parole hearings. In the last decade the Supreme Court has frequently reversed the 9th Circuit in other state cases and tightened federal habeas corpus substantive and procedural review. These decisions have repeatedly reversed the 9th Circuit in innumerable decisions involving Constitutional issues.
The time has come for the Supreme Court to reinterpret federal habeas corpus law and remove the 9th Circuit from any further jurisdiction over state court decisions. Not only will removal reduce the endless appeals of 9th Circuit mandated retrials and the cost and interference with state sovereignty, the record would confirm finality of state court judgments and stop the endless reversals resulting in injustice. No reason justifies two jurisdictions trying the same case twice.
Twenty years ago Congress enacted the AntiTerrorism and Effective Death Penalty Act (AEDPA;1996) limiting federal appellate courts, under strict conditions, from granting habeas corpus petitions overruling state court judgments. Although the Act applied to all federal appellate courts, the reversal record of the 9th Circuit provided the rationale for the statute.
Innumerable 9th Circuit cases were reversed by the Supreme Court during the two decades that followed enactment of AEDPA. Ending the second decade in December, 2015, the 9th Circuit wrote McDaniels v. Kirkland, 813 F.3d 776 (9th Cir.(2015) and Shirley v. Yates., 2015 WL l 7422606. Both cases cited the Supreme Court decision in Batson v. Kentucky, 476 U.S. 79 (1986). Batson, predicated on the all purpose Equal Protection Clause, disallowed peremptory challenges of potential jurors based on their race.
In McDaniels, the court in a rehearing wrote that the pretrial written questionnaires of jurors in state trial court had been lost, and the record of defense objections to prosecution peremptory challenges on voir dire was challenged. Neither issue in McDaniels was submitted as part of the state appellate court habeas file. The Supreme Court decision in Cullen v. Pinholster, 563 U.S.170 (2011) prevents any federal appellate court on a habeas habeas petition to review evidence not presented in the state appellate court habeas review. But that rule did not apply in this case wrote the 9th Circuit.
The 9th Circuit rehearing in McDaniels held the evidence of a Batson violation was argued in the state trial court and therefore the federal court on habeas can consider all evidence even if the petitioner did not present it to the state appellate court. This evasion ignores Supreme Court precedent in Pinholster and common sense.
In Shirley v. Yates, a 9th Circuit panel decision written by a judge who had never tried a criminal case and who read the voir dire transcript of a state court trial, tried to find some reason for reversal of the judgment and state court confirmation on appeal. In fact, he opened the decision with an obvious dislike of the sentence imposed on the defendant. Unable to find any state trial court error under conventional 9th Circuit reversals, no improper jury instructions on the merits or the sentence, no ineffective counsel, no jury misconduct, no prosecutorial misconduct or failure to disclose exculpatory or mitigating evidence, the author of the Shirley opinion focused on voir dire.
The result exemplified an academic hair splitter opinion, lawyerly parsed, and unintelligible frustrating justice by reversing the California Court of Appeal and causing and freeing a guilty man unless the prosecutor can find all the witnesses. In the absence of a rehearing, the panel decision will cause another Supreme Court reversal to increase the 9th Circuit Shirley record.
The evidence in the case supported the jury verdict and denial of a motion for new trial. Once again a 9th Circuit panel abuses its habeas authority, disposes of AEDPA on unsupported grounds, and ignores the Supreme Court warning to accept the judgment of the trial court judge in a Batson hearing. A guilty man escapes on grounds of an alleged prosecution challenge based on race.
The Supreme Court has repeatedly written that the issue of voir dire and the use of peremptory challenges depends on an intangible variety of factors other then race. Conduct, demeanor, uncertainty, language, and a judgmental sense are incapable of explanation. Race does not necessarily result in the exercise of a challenge, and an appellate court reading a cold record cannot possibly determine factors the prosecutor considered at the trial.
The one person who can judge the rationale of a prosecutor in excusing a juror is the trial court judge. A neutral, the trial judge can sense a reason for the dismissal or not. The Supreme Court has stated the trial judge decision in a Batson hearing is virtually dispositive. In this case the trial judge supported the prosecutor.The 9th Circuit panel who never saw any of the jurors, never heard them, tried to compare the questions with other jurors. The questions can be exactly the same, and one juror accepted while the other excused unrelated to race.
This practice, named a “comparative juror analysis” enabled the panel to undertake an alternative Batson objection never made in the state appellate court or trial court. Those judges, said the panel, should have rendered the comparative juror analysis. This incoherent rule, again invented by the Supreme Court, requires the reviewing court to compare the questions and answers by excused and non excused jurors in jury questionnaires and the trial record on voir dire. According to the 9th Circuit, the comparative juror analysis rule is the “only tool available for review.” This statement reflects the subjective opinion of a judge rendering judgment of the prosecutor without knowledge of any collateral facts.
Pre trial questionnaires may reflect some factors the prosecution (and the defense) want to know, but written responses are no substitute for actual questioning by counsel. Answers to questions on paper are important, but verbal answers to questions the prosecution asks of a potential juror in court are more critical. The voice and personal presence of a potential juror outweighs the “comparative analysis” of reading a cold voir dire transcript. The answers of the juror to prosecution questions on voir can be indecisive, inconsistent with the questionnaire, abrupt, querulous, language mistakes, uncertainty, or demeanor. Any number of personal factors warrant exercise of a peremptory challenge, despite similarity of questions and answers between jurors excused and non excused.
Prosecutor decisions to excuse a potential juror are not based solely on the individual person. Intangible issues include the nature of the crime(s) charged, the experience of defense counsel, the judge, the witnesses level of credibility, the possible sentence, media publicity, use of accomplices, the composition with other potential jurors, and multiple defendants. In capital cases the attitude of a juror in imposing the death penalty, in addition to deciding the merits, may justify excusing a juror.
In the years that followed Batson, the courts were flooded with endless delays holding hearings prior to trial, and the decision provided an automatic ground for appeal in state and federal courts. The 9th Circuit eagerly seized on Batson as another method to reverse state courts but was reversed by a unanimous decision of the Supreme Court with the comment “The 9th Circuit merely substituted its own opinion.” Rice v. Collins, 546 U.S.333 (2006).

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The notion of court orders nunc pro tunc is a very vague equitable doctrine. Even if counsel obtains a nunc pro tunc order in criminal court, there is no guarantee at all the immigration court will reach the criminal court’s conclusion that the order or plea was entered on the backdated date cf. United States v. Esparza. The immigration courts generally follow federal immigration law on these questions, rather than the vagaries of the law of the 50 states, because of a desire for national uniformity.
On the other hand, it is possible for immigration counsel to argue that the immigration courts are bound to honor the final judgment of a state court under the Full Faith and Credit doctrine.
Because of this question, however, counsel should ask whether they really need an order to be entered nunc pro tunc. If there is no strong immigration need to backdate the order or plea, perhaps it is better not to ask that the state court act nunc pro tunc.
If it is really necessary to backdate an order or plea, the best argument might be that the law requires that the state and immigration courts place the defendant back in the same position he or she would have occupied if the error had not been made, i.e., with the opportunity to enter the same plea he or she would have had if the ineffective assistance of counsel or the court’s error in giving the mandatory immigration advice had not been made.
The United States Supreme Court recently referred to this obligation in Lafler v. Cooper, 556 U.S. ___, 132 S. Ct.1376 (Mar. 21, 2012). In that case, the court addressed the question of prejudice where defense counsel rendered ineffective assistance of counsel during plea bargaining, where in rejecting an offer of a 51-to-85-month sentence, defense counsel misadvised the defendant that the prosecution would be unable to establish intent to murder because the victim had been shot below the waist, and he went to trial, was convicted on all counts, and received a mandatory minimum 185-to-360-month sentence.
Sixth Amendment remedies should be “tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.” United States v. Morrison, 449 U. S. 361, 364 (1981). Thus, a remedy must “neutralize the taint” of a constitutional violation, id., at 365 . . . .
(Id. at 1388.) This argument might also be used in the context of a California Penal Code § 1016.5 error, where justice also requires the court to place the defendant in the same position he or she would have occupied absent the error.
The federal courts of appeals, including the Ninth Circuit, have also held in the immigration ineffective assistance of counsel context, that the remedy must place the client in the same position he or she would have occupied, as far as the timing of relief is concerned, that they would have faced if counsel had not made the error. One case involved the one-year deadline for filing a political asylum claim, and held that even though the court finding of ineffective assistance of counsel was made many years later, when the deadline had long since passed, the court ordered the immigration authorities to accept the political asylum claim as though it had been timely filed within the one-year statute of limitations.
The BIA has issued nunc pro tunc remedies “in cases going back for more than 50 years ... [to] achieve equitable results serving the interests of the agency and the individual alike.” In re Lei, 22 I. & N. Dec. 113, 132 (BIA 1998). Federal courts also “rel[y] on the doctrine, in order to return aliens to the position in which they would have been, but for a significant error in their immigration proceedings.” Edwards v. I.N.S., 393 F.3d 299, 308–09 (2d Cir.2004). When “agency error would otherwise be irremediable, and where the plaintiff has been deprived of a significant benefit” such as “the opportunity to seek a particular form of deportation relief,” courts apply the doctrine in immigration cases so “the error [can] be remedied nunc pro tunc.” Id. at 310–311; see also Batanic v. I.N.S., 12 F.3d 662, 667 (7th Cir.1993) (granting a noncitizen asylum nunc pro tunc, when procedural defects in his removal proceeding coupled with an intervening statutory change made him otherwise ineligible for asylum); De Cardenas v. Reno, 278 F.Supp.2d 284, 294 (D.Conn.2003) (remanding a case to the BIA with directions to enter relief from deportation nunc pro tunc, given “administrative oversights and procedural defects [had] deprived [petitioner] of an important opportunity to make her case for section 212(c) relief”).


“Insurance Companies” includes insurance companies, insurance associations and insurance exchanges.
“Agents” includes insurance agents, insurance brokers, public adjusters and public adjusters' solicitors.
“Burdens or Prohibitions” includes taxes, fines, penalties, licenses, fees, rules, regulations, obligations, and prohibitions, including prohibitions against writing particular kinds of insurance by insurance companies, and restrictions on the payment or division of commissions to or with insurance agents or brokers licensed under the laws of this Commonwealth.
“Other States” includes other states of the United States and foreign governments.
If any other state imposes any burdens or prohibitions on insurance companies, or agents of this state doing business in such other state, which are in addition to, or in excess of, the burdens or prohibitions imposed by this Commonwealth on insurance companies and agents, like burdens and prohibitions shall be imposed on all insurance companies and agents of such other state doing business in this Commonwealth, so long as the burdens and prohibitions of such other state remain in force. In applying this section to an insurance company of another state, such company shall not be required to pay any taxes and fees which are greater in aggregate amount than those which would be imposed by the laws of such other state and any political subdivision thereof upon a like company of this Commonwealth transacting the same volume and kind of business in such other state.
If any other state requires additional or other insurance covering motorists, or motor vehicles that are insured in Pennsylvania insurance companies, or in insurance companies of other states that are licensed to do business in this Commonwealth in order to use the highways of such other state, like, additional or other insurance shall be required to cover all motorists and motor vehicles of such other state using the highways of this Commonwealth so long as the requirement of such other state shall remain in force.
The existence of a monopolistic State Fund for the writing of any class or classes of insurance in another state shall not be construed as a reason to deny to a company, association or exchange of that state a license to transact such classes of insurance in this Commonwealth.
1921, May 17, P.L. 789, art. II, § 212. Amended 1931, June 22, P.L. 616, § 1; 1933, May 24, P.L. 988, § 1; 1945, May 5, P.L. 430, § 1; 1951, May 25, P.L. 406, § 2; 1959, Aug. 14, P.L. 717, § 1; 1974, June 17, P.L. 341, No. 110, § 3, imd. effective.


Paula Lazette MOORE, Plaintiff-Appellant, v. CITY OF NEW YORK, Jacquelyn O. McKnight, Beverly James, Defendants-Appellees.
PRESENT: PIERRE N. LEVAL, RAYMOND J. LOHIER, JR., Circuit Judges, SIDNEY H. STEIN,* District Judge. FOR APPELLANT: Gregory G. Smith, Law Office of Gregory G. Smith, Brooklyn, NY. FOR APPELLEES: Jason Anton (Richard Dearing, Jane L. Gordon, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York City Law Department, New York, NY.
Paula Lazette Moore appeals from a judgment of the District Court (Sullivan, J.) granting, as relevant here, appellees’ motion to dismiss for failure to state a claim of discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), 42 U.S.C. § 1981, and 42 U.S.C. § 1983. We assume the parties’ familiarity with the underlying facts and the record of prior proceedings, to which we refer only as necessary to explain our decision to affirm.
In dismissing Moore’s claims, the District Court primarily held that Moore failed adequately to state a case of employment discrimination under Title VII and § 1981 because the allegations in the complaint itself showed that she could not satisfy the New York City residency requirement and thus be qualified for her job.1 See Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015); Thornley v. Penton Publ’g, Inc., 104 F.3d 26, 29 (2d Cir. 1997). On appeal, Moore acknowledges that New York City residency was required for her position and that she lived in New Jersey. Appellant’s Br. 7, 9. Rather, Moore argues that the residency policy was applied in a discriminatory manner and was used pretextually to fire her because she is African-American with no Caribbean ancestry, and that comparator employees who are of African-Caribbean descent were permitted to violate the policy. See Stern v. Trs. of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997). We agree with the District Court that Moore failed to allege that the African-Caribbean female comparators were similarly situated to her “in all material respects”—for example, that they held positions that were subject to the same New York residency requirement. Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (quotation marks omitted). For this reason alone,2 we affirm the District Court’s dismissal of Moore’s employment discrimination claims.
We also affirm the District Court’s dismissal of Moore’s retaliation claims. Moore alleged that her termination was in retaliation for (1) rejecting a settlement offer in connection with conflict-of-interest charges brought against her related to her outside employment, and (2) complaining in an October 2015 letter to her supervisor about her treatment at work, that her employment was “threaten[ed],” and that she “feel[s] like [she is] being discriminated against.” App’x 68. As to the first basis for her retaliation claim, Moore did not allege that her rejection of the offer was “to protest or oppose statutorily prohibited discrimination.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000), superseded on other grounds by N.Y.C. Local L. No. 85. To the contrary, Moore alleged that she rejected the settlement offer to “clear her name” of wrongdoing. App’x 57. Nor did the October 2015 letter provide an adequate basis for Moore’s claim of retaliation. A mere mention of feeling “discriminated against” is not enough to put an employer on notice of a protected complaint if “nothing in the substance of the complaint suggests that the complained-of activity is, in fact, unlawfully discriminatory.” Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 17 (2d Cir. 2013). For these reasons, we affirm the District Court’s dismissal of Moore’s retaliation claims.
Because we affirm the dismissal of Moore’s claims of discrimination and retaliation under § 1981, we also affirm the dismissal of Moore’s § 1983 claims against the individual defendants.
We have considered Moore’s remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.
1. Because “[t]he same core substantive standards” apply to both Title VII and § 1981 claims, we analyze them together, as did the District Court. Wiercinski v. Mangia 57, Inc., 787 F.3d 106, 113 (2d Cir. 2015) (quotation marks omitted).
2. We do not, and need not, address the District Court’s alternative holding that Moore also failed to allege sufficient facts supporting an inference of discriminatory intent. See Littlejohn, 795 F.3d at 311.