text:
Purpose. The aim of the article is to reveal the main transformation directions of the land relations mechanism from the point of state regulation for the sustainable development of rural areas.
Methodology / approach. Methods of research applied to the issue were the following: the dialectical-determining key contradictions of land relations regulation mechanism in the context of sustainable rural development; abstract-logical approach, analysis and synthesis, induction and deduction were used for the algorithm of generalization throughout the transfer of state-owned land to communal ownership for territorial communities, the decentralization and the fulfillment of local budgets, conclusions formulation and elaboration of proposals, therefore; a purpose-oriented concerning the investigation of the state regulatory framework regarding land relations and legislative initiatives that should facilitate the improvement in the direction of elaboration of sustainable land relations regulation mechanism; statistical and graphical for analyzing the dynamics of rental charges for state property agricultural land, rental rights for which are sold on land auctions, illustrations of land payments to the local budgets, its structure and share in the total revenues amount.
Results. The primary institutional and legal contradictions of the land relations regulation mechanism in the context of basic principles throughout the rural territories balance development are determined; the scale of land disputes in administrative, civil and commercial courts of first instance is described in detail. Legislative initiatives aimed at the mechanism of state regulation in the field of land relations improvement with the purpose of encouraging villages and settlements to unite into self-sufficient territorial communities are summarized profoundly.
The algorithm of the state-owned land plots transfers to the communal property of the united territorial communities, and also the functions of the State Service of Ukraine for Geodesy, Cartography and Cadastre (StateGeoCadastre), executive authorities and local self-government authorities ensuring this process are highlighted too. The transformation of payments for land, the aspect of their target destination according to rational land usage, ecologization of agrarian production and other environmental measures of rural areas were investigated entirely. The proposals on improving the mechanism of land relations state regulation with the special purpose for rural territories balanced the development that have been processed by completing the rural settlement network borders determination with corresponding institutionalization, improvement of land taxation administration and rent charges for agricultural land, strengthening of public control over the compliance with land and tax legislation.
Originality / scientific novelty. The unique novelty of this investigation is the determination of land resources as the priority factor of a self-sufficient rural areas development in modern times and conditions.
Practical value / implications. The practical issue concerns the suggestions, aimed at improvement of legislation mechanism for land regulation in order to keep the priorities and backgrounds of a sustainable rural development.
mechanism of state regulation; land relations; sustainable development; united territorial communities; land tax; rent charge; agricultural land.
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This paper described the novel approach for stochastically modeling complex carbonate reservoir lithofacies and properties distribution within a High Resolution Sequence Stratigraphy (HRSS) framework. The carbonate lithofacies discussed in this paper contains heterogeneous pore types and properties. The reservoir displays an extensive range of geologic and petrophysical properties that make the efficient recovery of hydrocarbons is a challenging task. Hence one of the key steps in improving the recovery factor is by defining the three dimensional variability patterns in the reservoir in the form of fine geocellular static model. The key static geological elements that must be well defined are HRSS framework, lithofacies architecture, and field wide rock properties.
Subsurface analysis was done by examining 600 feet core footage from more than 15 wells, conventional logs from more than 50 wells, and more than 350 thin sections. The reservoir section averages 35 feet that can be subdivided into 6 high-frequency sequences. The reservoir consists of lagoonal packstone-rudstone, grain rich ooid-peloid shoal, and rudstone-boundstone mid-ramp. The shoal deposits exhibit the best permeability and oil saturation and it consists of discontinuous lithofacies body that depicts locally excellent porosity and permeability characteristics.
Lithofacies geometry and properties studies must form a fundamental basis for characterizing and modeling HRSS framework and lithofacies architecture variability through the reservoir. Combined with wireline-log data, they provide a basis for defining both reservoir framework and rock attribute distributions.
Complex lithofacies geometries and transitions, both vertically and laterally between the mound and discontinuous grain-rich ooid-peloid shoal lithofacies together with the continuous and sequential lagoonal and mid-ramp lithofacies does not allow to simulate these sorts of lithofacies assemblage using single lithofacies model algorithm. Hence a new holistic approach was implemented. A combination of Object Based (OB) algorithm and Truncated Gaussian Simulation (TGS) algorithm was employed to handle the complex lithofacies transition. This enables generating multiple realistic field wide lithofacies distribution and relationship which aligns with data trend, subsurface analog in the nearby fields, as well as that is from the outcrop exposure. The established lithofacies distribution within HRSS framework was then used to constrain field-wide properties and diagenetic trend and distribution in the reservoir.
This new holistic approach has recently been successfully implemented in the studied field. The resulted geostatistical model was able to explain pressure depletion and production rate as shown in historical production data of the field. The resulting dynamic model will hence provide reliable production forecast and reservoirs development plan which will eventually allow accomplishing the mandate recovery target.
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NYPL Map Warper:: Layer 1142 Atlas 110. Vol. 2, 1903.
Atlas 110. Vol. 2, 1903.
1884 over 3 years ago. Unrectified.
1884 almost 4 years ago. Unrectified.
Manhattan, V. 2, Plate No. 2 Map bounded by 1st St., Allen St., Rivington St., Chrystie St.
1884 over 2 years ago. 13 control points.
Manhattan, V. 2, Plate No. 3 Map bounded by 1st St., Essex St., Rivington St., Allen St.
1884 over 2 years ago. 15 control points.
Manhattan, V. 2, Plate No. 4 Map bounded by Houston St., Clinton St., Rivington St., Essex St.
1884 over 2 years ago. 16 control points.
Manhattan, V. 2, Plate No. 5 Map bounded by 2nd St., Pitt St., Rivington St., Clinton St.
1884 over 2 years ago. 20 control points.
Manhattan, V. 2, Plate No. 6 Map bounded by 2nd St., Columbia St., Rivington St., Pitt St.
1884 over 2 years ago. 5 control points.
Manhattan, V. 2, Plate No. 7 Map bounded by E. 3rd St., Goerck St., Rivington St., Columbia St.
Manhattan, V. 2, Plate No. 8 Map bounded by E. 3rd St., East River, Rivington St., Goerck St.
Manhattan, V. 2, Plate No. 10 Map bounded by 5th St., 1st Ave., 1st St., 2nd Ave.
1884 over 2 years ago. 18 control points.
Manhattan, V. 2, Plate No. 11 Map bounded by 5th St., Avenue A, 1st St., 1st Ave.
1884 over 2 years ago. 8 control points.
1884 over 2 years ago. 12 control points.
1884 over 2 years ago. 14 control points.
Manhattan, V. 2, Plate No. 15 Map bounded by Avenue D, 6th St., Marginal St., E. 3rd St.
1884 over 2 years ago. 3 control points.
Manhattan, V. 2, Plate No. 16 Map bounded by Avenue D, E. 9th St., Tompkins St., 6th St.
Manhattan, V. 2, Plate No. 17 Map bounded by E. 10th St., 3rd Ave., 4th Ave.
1884 over 2 years ago. 9 control points.
Manhattan, V. 2, Plate No. 18 Map bounded by E. 10th St., 2nd Ave., 5th St., 3rd Ave.
1884 over 2 years ago. 22 control points.
Manhattan, V. 2, Plate No. 19 Map bounded by E. 10th St., 1st Ave., 5th St., 2nd Ave.
Manhattan, V. 2, Plate No. 20 Map bounded by E. 10th St., Avenue A, 5th St., 1st Ave.
1884 over 2 years ago. 26 control points.
Manhattan, V. 2, Plate No. 25 Map bounded by E. 14th St., 3rd Ave., E. 10th St., 4th Ave.
Manhattan, V. 2, Plate No. 26 Map bounded by E. 14th St., 2nd Ave., E. 10th St., 3rd Ave.
1884 over 2 years ago. 10 control points.
Manhattan, V. 2, Plate No. 27 Map bounded by E. 14th St., 1st Ave., E. 10th St., 2nd Ave.
Manhattan, V. 2, Plate No. 28 Map bounded by E. 14th St., Avenue A, E. 10th St., 1st Ave.
1884 over 2 years ago. 17 control points.

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1. Development of a reading and data acquisition system for the decays RICH and CBM RICH.
2. The use of "CATIA-GDML geometry builder" to build the Monte Carlo geometry of the CBM RICH.
2. Pavel Kisel: "Reconstruction of Decays with Neutral Daughter"
The possibility of reconstruction of the ∑+ and ∑- decays in the CBM experiment using the missing mass method is presented.
Reporting seminar of young scientists and specialists who received CYSS grants.
D. Yu. Lebedev (Tver State University): "Mathematical modeling of the instantaneous heart rate on according to Holter monitoring"
Bagrov А.А.: "MATLAB for scientific and technical computing"
The Softline and Mathworks hold at LIT JINR a free-of-chargt seminar "MATLAB for scientific and technical computing"
I. Pelevanjuk, A. Tsaregorodtsev: "Accessing distributed computing resources using DIRAC services"
T.V. Karamysheva: " Optimizing the speed and accuracy of the calculations of the main cyclotron systems and beam dynamics."
D.A. Oleynik: "Pilot 2.0 and Harvester. New developments for PanDA Workload Management System"
The 7th JINR/CERN School of Information Technology «GRID and Advanced Information Systems» is being held on 24-28 October 2016 in the International Conference Hall in Dubna.
The organizers of the School are the Joint Institute for Nuclear Research and the European Organization for Nuclear Research under the support of the National Research Nuclear University "Mephi" and the Plekhanov Russian University of Economics.
"IT was RECENTLY, IT was LONG AGO", devoted to the LIT 50 anniversary, is exposed on the website.
Subsequent to the resolution № 368-ПГ of 15 September 2016 of the the Government of the Moscow Region “On awarding the Moscow region awards” the honorary title “Moscow Region’s Distinguished Person of Science” was given to Chief Scientific Reseacher of the JINR Laboratory of Information Technologies Ososkov Gennadi Alekseevich.
Congratulations on well-deserved recognition to Gennadi Alekseevich with wishes for further success in science and training of young colleagues for new opening!"
A ceremonial meeting dedicated to the 50th anniversary of foundation of the Laboratory of Information Technologies JINR was held on 16 September 2016 in the JINR Cultural Centre “Mir”.
Dear employees and veterans of LCTA/LIT!
We would like to kindly invite you to celebrate the 50th anniversary of our Laboratory.
1. N. Voytishin, V. Palichik: "Particle trajectories reconstruction in the CMS experiment cathode-strip chambers and the BM@N experiment drift chambers"
with the 50 anniversary of formation of our Laboratory.
We thank for attention to our Laboratory all colleagues and guests of our Website.
Abramov B. D. (JSC "SSC RF – A. I. Leypunsky IPPE"): " Actual methods of mathematical simulation in the problems of the neutron transfer theory and the nuclear reactor theory "
Kalutsky N.S. (Limited Liability Corporation "Progresstech-Dubna", Dubna): "Experience of the recovery of information model of a legacy system"
On the nomination of candidates for elections to the Russian Academy of Sciences.
About personnel reserve of LIT.
V.V. Ivanov 1,2, A.V. Kryanev 2,1, E.S. Osetrov 3,1: "Forecasting the daily electricity consumption in Moscow region using artificial neural networks"
1. I.S. Kadochnikov: "Organization of a multi-user access to the non-relational database documentary ELASTICSEARCH"
2. N.A. Balashov, A. V. Baranov, I. S. Kadochnikov, V. V. Korenkov, N. A. Kutovski, A. V. Nechaevsky, I.S.Pelevanjuk, V. V. Trofimov: "A software package of intelligent scheduling and adaptive self-organization of virtual computing resources based on the cloud center of LIT JINR"
1. N.D. Dikusar: "Optimization of Solutions in Problem OF PIECEWISE POLYNOMIAL APPROXIMATION"
2. V.N. Robuk: "Analysis of multiparametric solutions of parabolic equation"
Provoide comparative analysis of two methods of constructing multiparametric solutions of the parabolic equation. A connection between two systems parameters is found . It is shown that the question of localization multiparameter solutions reduces to the analysis of quadratic forms with time-varying coefficients.
E.I. Zhabitskaya: "Asynchronous Differential Evolution Method for Numerical Study of Multi-Parameter Models of Physical Systems"
Stefka Dimova, Tsvetan Bazlyankov (Faculty of Mathematics and Informatics, SU „St. Kl. Ohridski”, Bulgaria): " Two Families of Numerical Methods for Hamiltonian Systems:Implementation and Comparison "
Two families of symmetric and symplectic numerical methods for solving the Cauchy problem for Hamiltonian systems of equations - one-parameter family of two-stage Runge-Kutta methods and the family of Shoermer-Verlet methods – are implemented and analyzed. Their capabilities to maintain the important global properties of the exact solutions - conservation of the phase volume, the total momentum and the energy (in the absence of external forces) are compared.
Korenkov V. V. "The development project on the Multifunctional Information and Computing Complex of LIT, JINR".
The awarding of LIT staff.
S. Budnyam (Institute of mathematics, Mongolian State University): "A mathematical model of the knowledge economy"
19 августа 2016 года исполняется 50 лет со дня образования ЛИТ (ЛВТА).
о запуске новой техники, проектов, о людях, причастных к истории ее создания и внесших вклад в дальнейшее развитие, и т.д.
Тексты (Word & PDF) принимаются Л.А. Калмыковой (к. 546 ЛИТ) до 20 мая 2016 года.
Справки по тел.: 21-63-961, 21-64-695.
"Seminar dedicated to selecting participants for the V conference of Young scientists and specialists JINR"
1. Aiirian Vagram: "C++ to OpenCL translator"
2. Derenovskaya Olga: "Methods and algorithms for electron identification in the CBM experiment"
3. Matveev Mikhail: "Specific features of the hardware-software environment of the HybriLIT heterogeneous cluster"
4. Pelevanyuk Igor: "Service Monitoring System for Tier-1 in JINR2"
5. Torosyan Astghik: "On the entanglement space of X-states for low-dimensional quantum systems"
PD Dr. Alexej I. Streltsov (UNIVERSITAT HEIDELBERG), Dr. Oksana I. Streltsova (LIT JINR, DUBNA) "MCTDHB-Laboratory - Quantum Dynamics with a mouse-click-interface"
Zheltov S.A. (TvSU): " A method of capability check of the violator of the automated systems safety when using parallel computations"
Rogachevsky Oleg (VBLHEP JINR): "Simulation and analysis framework for the NICA experiments"
A project of the Laboratory of Information Technologies "Tier1 CERN Data Center to process data from the Large Hadron Collider" won the "Project of the Year" contest, organized by the Association of Directors of Russian IT companies GlobalCIO in the category "Development and modernization of infrastructure".
В.П.Гердт: "Квантовый компьютинг: современное состояние."

matches: V. V. V. V. V. V.


Acting Commissioner of the Social Security Administration, Defendant.
Eileen S. Willett United States Magistrate Judge.
Pending before the Court is Diane Carol Roberts' (“Plaintiff”) appeal of the Social Security Administration's (“Social Security”) denial of her application for supplemental security income. The Court has jurisdiction to decide Plaintiff's appeal pursuant to 42 U.S.C. §§ 405(g), 1383(c). Under 42 U.S.C. § 405(g), the Court has the power to enter, based upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the case for a rehearing. Both parties have consented to the exercise of U.S. Magistrate Judge jurisdiction. (Doc. 11).
After reviewing the Administrative Record (“A.R.”) and the parties' briefing (Docs. 18, 19, 21), the Court finds that the Administrative Law Judge's (“ALJ”) decision contains harmful legal error. For the reasons explained in Section II, the decision is reversed and the case is remanded to the Commissioner of Social Security for an immediate award of benefits.
The Social Security Act (the “Act”) provides for Supplemental Security Income to certain individuals who are aged 65 or older, blind, or disabled and have limited income. 42 U.S.C. § 1382. To be eligible for benefits based on an alleged disability, the claimant must show that he or she suffers from a medically determinable physical or mental impairment that prohibits him or her from engaging in any substantial gainful activity. 42 U.S.C. § 1382c(A)(3)(A). The claimant must also show that the impairment is expected to cause death or last for a continuous period of at least 12 months. Id.
To decide if a claimant is entitled to Social Security benefits, an ALJ conducts an analysis consisting of five questions, which are considered in sequential steps. 20 C.F.R. § 416.920(a). The claimant has the burden of proof regarding the first four steps:Step One: Is the claimant engaged in “substantial gainful activity”? If so, the analysis ends and disability benefits are denied. Otherwise, the ALJ proceeds to step two.
Step Two: Does the claimant have a medically severe impairment or combination of impairments? A severe impairment is one which significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 416.920(c). If the claimant does not have a severe impairment or combination of impairments, disability benefits are denied at this step. Otherwise, the ALJ proceeds to step three.
Step Three: Is the impairment equivalent to one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity? 20 C.F.R. § 416.920(d). If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is presumed to be disabling, the ALJ proceeds to the fourth step of the analysis.
Step Four: Does the impairment prevent the claimant from performing work which the claimant performed in the past? If not, the claimant is “not disabled” and disability benefits are denied without continuing the analysis. 20 C.F.R. § 416.920(f). Otherwise, the ALJ proceeds to the last step.
Step Five: Can the claimant perform other work in the national economy in light of his or her age, education, and work experience? The claimant is entitled to disability benefits only if he or she is unable to perform other work. 20 C.F.R. § 416.920(g). Social Security is responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that the claimant can do, given the claimant's residual functional capacity, age, education, and work experience. Id.
The Court must affirm an ALJ's decision if it is supported by substantial evidence and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). “Substantial evidence” is less than a preponderance, but more than a “mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)). It is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.
In determining whether substantial evidence supports the ALJ's decision, the Court considers the record as a whole, weighing both the evidence that supports and detracts from the ALJ's conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). If there is sufficient evidence to support the ALJ's determination, the Court cannot substitute its own determination. See Morgan v. Comm'r of the Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (“Where the evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.”); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ, not the Court, is responsible for resolving conflicts and ambiguities in the evidence and determining credibility. Magallanes, 881 F.2d at 750; see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
Finally, the Court considers the harmless error doctrine when reviewing an ALJ's decision. An ALJ's decision need not be remanded or reversed if it is clear from the record that the error is “inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations omitted); Molina, 674 F.3d at 1115 (an error is harmless so long as there remains substantial evidence supporting the ALJ's decision and the error “does not negate the validity of the ALJ's ultimate conclusion”) (citations omitted).


See 446 U.S. 992, 100 S.Ct. 2979.
Section 1 of the Indian General Allotment Act of 1887 authorizes the President to allot to each Indian residing on a reservation specified acreage of agricultural and grazing land within the reservation; § 2 provides that all such allotments shall be selected by the Indians so as to include improvements made by them; and § 5 provides that the United States shall retain title to such allotted lands in trust for the benefit of the allottees. Pursuant to the Act, the Government allotted all of the Quinault Reservation's land in trust to individual Indians. Respondents, individual allottees of land in that Reservation, the Quinault Tribe, which now holds some allotments, and an association of allottees, brought actions, consolidated in the Court of Claims, to recover damages from the Government for alleged mismanagement of timber resources found on the Reservation. Denying the Government's motion to dismiss the actions on the alleged ground that it had not waived its sovereign immunity with respect to the asserted claims, the Court of Claims held that the General Allotment Act created a fiduciary duty on the United States' part to manage the timber resources properly and constituted a waiver of sovereign immunity against a suit for money damages as compensation for breaches of that duty.
Held : The General Allotment Act cannot be read as establishing that the United States has a fiduciary responsibility for management of allotted forest lands, and thus does not provide respondents with a cause of action for the damages sought. Pp. 538-546.
(a) Neither the Tucker Act, under which the individual claimants premised jurisdiction in the Court of Claims, nor § 24 of the Indian Claims Commission Act, on which jurisdiction over the Tribe's claim was based, confers a substantive right against the United States to recover money damages. Pp. 538-540.
(b) The General Allotment Act created only a limited trust relationship between the United States and the allottee that does not impose any duty upon the Government to manage timber resources. The language of § 5 of the Act must be read in pari materia with the language of §§ 1 and 2, both of which indicate that the Indian allottee, and not a representative of the United States, is responsible for using the land for agricultural or grazing purposes. The Act's legislative history also indicates that the trust Congress placed on allotted lands is of limited scope, it appearing that when Congress enacted the Act it intended that the United States hold the lands in trust not because it wished the Government to control use of the lands and be subject to money damages for breaches of fiduciary duty, but simply because it wished to prevent alienation of the lands and to ensure that allottees would be immune from state taxation. Furthermore, certain events surrounding and following the Act's passage indicate that it should not be read as authorizing, much less requiring, the Government to manage timber resources for the benefit of Indian allottees. Pp. 540-546.
Louis F. Claiborne, Washington, D. C., for petitioner.
Charles A. Hobbs, Washington, D. C., for respondents.
The United States moved to dismiss the respondents' actions on the ground that it had not waived its sovereign immunity with respect to the claims raised. The Court of Claims, sitting en banc, denied the Government's motion. 219 Ct.Cl. 95, 591 F.2d 1300 (1979). Reasoning that Government mismanagement of the kind alleged breaches the Government's fiduciary duty under the General Allotment Act, the court held that the Act provides Indian allottees a cause of action for money damages against the United States.
We granted certiorari, 442 U.S. 940, 99 S.Ct. 2880, 61 L.Ed.2d 309 (1979), and now reverse and remand.
It is elementary that "[t]he United States, as sovereign, is immune from suit save as it consents to be sued . . ., and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769-770, 85 L.Ed. 1058 (1941). A waiver of sovereign immunity "cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969). In the absence of clear congressional consent, then, "there is no jurisdiction in the Court of Claims more than in any other court to entertain suits against the United States." United States v. Sherwood, supra, 312 U.S., at 587-588, 61 S.Ct., at 770.
The individual claimants in this action premised jurisdiction in the Court of Claims upon the Tucker Act, 28 U.S.C. § 1491, which gives that court jurisdiction of "any claim against the United States founded either upon the Constitution, or any Act of Congress." The Tucker Act is "only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages." United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). The Act merely "confers jurisdiction upon [the Court of Claims] whenever the substantive right exists." Ibid. The individual claimants, therefore, must look beyond the jurisdictional statute for a waiver of sovereign immunity with respect to their claims.
"As respects claims accruing after its adoption this bill confers jurisdiction on the Court of Claims to determine and adjudicate any tribal claim of a character which would be cognizable in the Court of Claims if the claimant were not an Indian tribe. In such cases the claimants are to be entitled to recover in the same manner, to the same extent, and subject to the same conditions and limitations, and the United States shall be entitled to the same defenses, both at law and in equity, . . . as in cases brought in the Court of Claims by non-Indians under section 145 of the Judicial Code [now 28 U.S.C. § 1491], as amended." H.R.Rep.No. 1466, 79th Cong., 1st Sess., 13 (1945).
See also Hearings on H.R.1198 and H.R.1341 before the House Committee on Indian Affairs, 79th Cong., 1st Sess., 149 (1945) (statement of Assistant Solicitor Cohen); H.R.Rep.No.352, 81st Cong., 1st Sess., 15-16 (1949) (recodifying the statute).
"Upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made . . . and that at the expiration of said period the United States will convey the same by patent to said Indian . . ., in fee, discharged of said trust and free of all charge or incumbrance whatsoever: Provided, That the President of the United States may in any case in his discretion extend the period. And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void." 24 Stat. 389, as amended, 25 U.S.C. § 348.
Under § 2 of the Indian Reorganization Act of 1934, 48 Stat. 984, 25 U.S.C. § 462, the United States now holds title to these lands indefinitely.
The Court of Claims held that the General Allotment Act creates a fiduciary duty on the part of the United States to manage timber resources properly and constitutes a waiver of sovereign immunity against a suit for money damages as compensation for breaches of that duty. The court drew both of these conclusions from the Act's language providing that the United States is to "hold the land . . . in trust for the sole use and benefit of the" allottee. The court held that this language created an express trust, and concluded that money damages are available to compensate for breaches of this trust, apparently because that remedy is available in the ordinary situation in which a trustee has violated a fiduciary duty and because without money damages allottees would have no effective redress for breaches of trust.
The Act does not unambiguously provide that the United States has undertaken full fiduciary responsibilities as to the management of allotted lands. The language of § 5 that imposes the trust in question must be read in pari materia with the language of §§ 1 and 2.3 Both of these sections indicate that the Indian allottee, and not a representative of the United States, is responsible for using the land for agricultural or grazing purposes. Furthermore, the legislative history of the Act4 plainly indicates that the trust Congress placed on allotted lands is of limited scope. Congress intended that, even during the period in which title to allotted land would remain in the United States, the allottee would occupy the land as a homestead for his personal use in agriculture or grazing. See Mattz v. Arnett, 412 U.S. 481, 496, 93 S.Ct. 2245, 2253, 37 L.Ed.2d 92 (1973); 13 Cong.Rec. 3211 (1882) (Sen. Dawes) (the allottee is to be "the occupant of the land and enjoy all its use"). See also H.R.Rep.No.2247, 48th Cong., 2d Sess., 1 (1885); 17 Cong.Rec. 1630-1631 (1886) (Sens. Plumb and Dawes); id., at 1632 (Sen. Maxey); 18 Cong.Rec. 190-191 (1886) (Rep. Skinner). Under this scheme, then, the allottee, and not the United States, was to manage the land.
Furthermore, events surrounding and following the passage of the General Allotment Act indicate that the Act should not be read as authorizing, much less requiring, the Government to manage timber resources for the benefit of Indian allottees. In 1874, this Court determined that Indians held only a right of occupancy, and not title, to Indian lands, and therefore that they could cut timber for the purpose of clearing the land, but not for the primary purpose of marketing the timber. United States v. Cook, 19 Wall. 591, 22 L.Ed. 210. In 1889, two years after the General Allotment Act was enacted, the Attorney General determined that the rule of United States v. Cook, supra, applied to allotted as well as unallotted lands, unless a statute explicitly provided to the contrary. 19 Op. Atty. Gen. 232. Congress ratified the Attorney General's opinion by enacting a provision authorizing the sale of dead timber on Indian allotments and reservations, but forbidding the sale of live timber. Act of Feb. 16, 1889, ch. 172, 25 Stat. 673. See also Pine River Logging Co. v. United States, 186 U.S. 279, 22 S.Ct. 920, 46 L.Ed. 1164 (1902).
In United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976), we held that a statute creates a substantive right enforceable against the United States in money damages only if it " 'can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.' " Id., at 400, 96 S.Ct., at 954, quoting Eastport S. S. Corp. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002, 1009 (1967). The Court today holds that Testan bars a damages suit against the Government by Indian allottees, their Tribe, and their association for breach of fiduciary duties in the management of timber lands allotted under the General Allotment Act of 1887 (Act), 24 Stat. 388, as amended, 25 U.S.C. § 331 et seq. Because I believe that the Act can fairly be interpreted as mandating compensation, I dissent.
"fiduciary relationship with respect to property, subjecting the person by whom the title to the property is held to equitable duties to deal with the property for the benefit of another person. . . ." Restatement § 2 (emphasis added).
See 1 Scott § 2.5. Hence, if we are to give the words of the statute their ordinary meaning, as we commonly do when the law does not define a statutory phrase precisely, Group Life & Health Ins. Co. v. Royal Drug Co., supra, 440 U.S., at 211, 99 S.Ct., at 1073, we should find that the trust established by the Act imposes fiduciary obligations on the United States as trustee.
The legislative history of the Act does not convince me that any narrower reading is required. This statute was enacted against the backdrop of a relationship between the United States and the Indian tribes that had long been considered to "resembl[e] that of a word to his guardian." Cherokee Nation v. Georgia, 5 Pet. 1, 17, 8 L.Ed. 25 (1831); see also Morton v. Mancari, 417 U.S. 535, 541-542, 94 S.Ct. 2474, 2478, 41 L.Ed.2d 290 (1974); United States v. Mason, 412 U.S. 391, 398, 93 S.Ct. 2202, 2207, 37 L.Ed.2d 22 (1973); Squire v. Capoeman, 351 U.S. 1, 2, 76 S.Ct. 611, 613, 100 L.Ed. 883 (1956); United States v. Payne, 264 U.S. 446, 448 (1924); United States v. Kagama, 118 U.S. 375, 382, 6 S.Ct. 1109, 1113, 30 L.Ed. 228 (1886). When Congress established a "trust" for the Indian allottees it is not sensible to assume an intent to depart from these well-known fiduciary principles. Rather, as we noted inMattz v. Arnett, 412 U.S. 481, 496, 93 S.Ct. 2245, 2253, 37 L.Ed.2d 92 (1973), the policy of the Act was to "continue the reservation system and the trust status of Indian lands." (Emphasis added.) The Court acknowledges that the Act did create a trust relationship between the United States and the allottee. Ante, at 542. It holds, however, that the fiduciary obligations imposed on the United States as trustee are very narrow and do not extend to the proper management of Indian timber lands. The lands covered by the Act were mostly agricultural or grazing lands, as to which it was expected that the Indian himself would reside on and manage the allotments. Not until United States v. Payne, supra, was it established that forested lands such as those of the Quinault Reservation were subject to allotment under the Act. Hence, it is said, if the Government has fiduciary duties they are solely to ensure nonalienation and immunity from state taxation.
This argument takes too narrow a view of the fiduciary duty established by the Act and of the subsequent statutory and administrative developments which clarified and fleshed out that duty. The timberlands of the Quinault Reservation cannot, as a practical matter, be managed by the Indian allottees. In such a case, where management functions must necessarily be performed by the Government, it seems most consistent with the scheme of the Act that the United States was to assume fiduciary obligations in the performance of its management functions. Subsequent Congresses have implicitly acknowledged the existence of such obligations. See 25 U.S.C. § 466 (instructing the Secretary of the Interior to manage Indian forests on a sustained-yield basis); §§ 323-325 (authorizing the Secretary to grant rights-of-way over Indian trust lands upon payment of just compensation); § 162a (authorizing the Secretary to manage tribal funds held in trust). The Secretary has promulgated detailed regulations governing the exercise of his powers under these statutes. While I do not say that the Government's fiduciary responsibility necessarily conforms to the exact terms of these statutes and regulations, their existence at least points to the inference that as a matter of statute and administrative practice the Government has accepted some obligations in the management of allotted timberlands.
The remaining question is whether the Government has consented to liability in damages for the breach of these obligations. Such liability, in my view, follows naturally from the existence of a trust and of fiduciary duties. It is hornbook law that the trustee is accountable in damages for breaches of trust. See Restatement §§ 205-212; Bogert § 862; 3 Scott § 205. Moreover, it would interfere with, if not defeat, the purposes of the Act if the allottees were to be remitted to a suit for prospective, equitable relief in the protection of their rights. Absent a retrospective damages remedy, there would be little to deter federal officials from violating their trust duties, at least until the allottees managed to obtain a judicial decree against future breaches of trust. Finally, it is noteworthy that the Department of the Interior, which as the agency charged with administering the Act is entitled to considerable deference in its interpretation of the statute, e. g., Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 2445, 57 L.Ed.2d 337 (1978); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965), apparently disagrees with the position taken by the Solicitor General in this litigation and believes that a money damages remedy should be permitted. See Letter from Departmental Solicitor Krulitz to Assistant Attorney General Moorman, Nov. 21, 1978, reprinted in App. to Brief for Respondents 1a-21a.
In sum, I would find that the Act creates a bona fide trust, imposes fiduciary obligations on the United States as trustee in the management of allotted timberlands, and provides a damages remedy against the United States for breach of these obligations. The Act " 'can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.' " United States v. Testan, 424 U.S., at 400, 96 S.Ct., at 954, quoting Eastport S. S. Corp. v. United States, 178 Ct.Cl., at 607, 372 F.2d, at 1009. In my view, therefore, the Court of Claims had jurisdiction over this action as one founded on an "Act of Congress," 28 U.S.C. § 1491, and as one brought by an identifiable group of Indians and "otherwise . . . cognizable in the Court of Claims," 28 U.S.C. § 1505. Accordingly, I respectfully dissent.
Current statutes relevant to the Secretary's responsibilities with respect to Indian timber resources include 25 U.S.C. § 162a (investment of funds of tribe and individual allottee); 25 U.S.C. §§ 318a, 323-325 (roads and rights-of-way); 25 U.S.C. §§ 349, 372 (issuance of fee patents to allottees or heirs found to be capable of managing their affairs); 25 U.S.C. §§ 406, 407 (sale of timber); 25 U.S.C. § 413 (collection of administrative expenses incurred on behalf of Indians); 25 U.S.C. § 466 (sustained-yield management of forests).
Contrary to respondents' assertions, the comments of then-Representative Jackson, the sponsor of the bill that became 28 U.S.C. § 1505, do not indicate that Congress intended this statute to be a waiver of sovereign immunity for any alleged breach of trust accruing after August 13, 1946. Indeed, Representative Jackson stated that "the bill provides that with respect to all grievances that may arise hereafter Indians shall be treated on the same basis as other citizens of the United States in suits before the Court of Claims." 92 Cong.Rec. 5313 (1946). This statement is consistent with his comment that if the bill was adopted "it will never again be necessary to pass special Indian jurisdictional acts in order to permit the Indians to secure a court adjudication on any misappropriations of Indian funds or of any other Indian property by Federal officials that might occur in the future." Ibid. Such misappropriations could constitute takings for which just compensation is required by the Fifth Amendment, and this Court has long held that such a claim is within the jurisdiction of the Court of Claims under 28 U.S.C. § 1491. See United States v. Testan, 424 U.S. 392, 401, 96 S.Ct. 948, 954, 47 L.Ed.2d 114 (1976); United States v. Creek Nation, 295 U.S. 103, 109-110, 55 S.Ct. 681, 683-684, 79 L.Ed. 1331 (1935); Jacobs v. United States, 290 U.S. 13, 16, 54 S.Ct. 26, 27, 78 L.Ed. 142 (1933).
This language has not been materially altered by amendment, and is presently codified as 25 U.S.C. § 331.
"That all allotments set apart under the provisions of this act shall be selected by the Indians . . . in such manner as to embrace the improvements of the Indians making the selection. Where the improvements of two or more Indians have been made on the same legal subdivision of land, unless they shall otherwise agree, a provisional line may be run dividing said lands between them . . .." 24 Stat. 388.
This provision has never been amended, and is presently codified as 25 U.S.C. § 332.
A bill similar to the General Allotment Act of 1887 was debated in the Senate in 1881. See S.1773, 46th Cong., 3d Sess. (1880); 11 Cong.Rec. 778-788, 873-882, 904-913, 933-943, 944-1003, 1028-1036, 1060-1070 (1881). Bills essentially identical to the Act as enacted in 1887 were passed by the Senate in 1882 and 1884, but were not acted upon by the House of Representatives. See S. 1455, 47th Cong., 1st Sess. (1882); S. 48, 48th Cong., 1st Sess. (1884). See also 13 Cong.Rec. 3212 (1882); 15 Cong.Rec. 2240-2242, 2277-2280 (1884); 16 Cong.Rec. 218, 580 (1885); H.R.Rep.No.2247, 48th Cong., 2d Sess. (1885).
"Giving the individual Indian a title to the land upon which he resides will have a tendency to stimulate him to work and improve his land and accumulate property. . . ." 18 Cong.Rec. 190 (1886) (emphasis added).
Representative Perkins summarized this approach by stating that "[t]he bill provides for the breaking up, as rapidly as possible, of all the tribal organizations and for the allotment of lands to the Indians in severalty, in order that they may possess them individually and proceed to qualify themselves for the duties and responsibilities of citizenship." Id., at 191. He asserted that one object of the bill was to enable Indians "to support themselves by industry and toil." Ibid.
The Court of Claims did not consider the respondents' assertion that other statutes, see n. 1, supra, render the United States liable in money damages for the mismanagement alleged in this case. Nor did the court address the respondents' contention that the alleged mismanagement is cognizable under the Tucker Act because it involves money improperly exacted or retained. The court may, of course, consider these contentions on remand.
The respondents make two other arguments. They assert that the special relationship between the United States and Indian tribes establishes a right to money damages for timber mismanagement. They also contend that the General Allotment Act and the Treaty of Olympia, 12 Stat. 971 (1859), create trust responsibilities on the part of the United States that constitute implied contracts within the scope of the Tucker Act. Because the respondents did not raise these contentions in the Court of Claims, we will not consider them. E. g., Adickes v. Kress & Co., 398 U.S. 144, 147, n. 2, 90 S.Ct. 1598, 1602, n. 2, 26 L.Ed.2d 142 (1970).


The amount of funds provided under the terms of self-determination contracts entered into pursuant to this chapter shall not be less than the appropriate Secretary would have otherwise provided for the operation of the programs or portions thereof for the period covered by the contract, without regard to any organizational level within the Department of the Interior or the Department of Health and Human Services, as appropriate, at which the program, function, service, or activity or portion thereof, including supportive administrative functions that are otherwise contractable, is operated.
are provided by the Secretary in support of the contracted program from resources other than those under contract.
except that such funding shall not duplicate any funding provided under subsection (a)(1) of this section.
On an annual basis, during such period as a tribe or tribal organization operates a Federal program, function, service, or activity pursuant to a contract entered into under this chapter, the tribe or tribal organization shall have the option to negotiate with the Secretary the amount of funds that the tribe or tribal organization is entitled to receive under such contract pursuant to this paragraph.
be expended by the tribe or tribal organization in the succeeding fiscal year, as provided in section 13a of this title.
to ensure compliance with the terms of the contract and prudent management.
Costs incurred before the initial year that a self-determination contract is in effect may not be included in the amount required to be paid under paragraph (2) if the Secretary does not receive a written notification of the nature and extent of the costs prior to the date on which such costs are incurred.
may, at the request of the tribal organization, be increased by the Secretary if necessary to carry out this chapter or as provided in section 5324(c) of this title.
Notwithstanding any other provision in this chapter, the provision of funds under this chapter is subject to the availability of appropriations and the Secretary is not required to reduce funding for programs, projects, or activities serving a tribe to make funds available to another tribe or tribal organization under this chapter.
an accounting of any deficiency in funds needed to maintain the preexisting level of services to any Indian tribes affected by contracting activities under this chapter, and a statement of the amount of funds needed for transitional purposes to enable contractors to convert from a Federal fiscal year accounting cycle, as authorized by section 5324(d) of this title.
Where a tribal organization’s allowable indirect cost recoveries are below the level of indirect costs that the tribal organizations should have received for any given year pursuant to its approved indirect cost rate, and such shortfall is the result of lack of full indirect cost funding by any Federal, State, or other agency, such shortfall in recoveries shall not form the basis for any theoretical over-recovery or other adverse adjustment to any future years’ indirect cost rate or amount for such tribal organization, nor shall any agency seek to collect such shortfall from the tribal organization.
Nothing in this subsection shall be construed to authorize the Secretary to fund less than the full amount of need for indirect costs associated with a self-determination contract.
Indian tribes and tribal organizations shall not be held liable for amounts of indebtedness attributable to theoretical or actual under-recoveries or theoretical over-recoveries of indirect costs, as defined in Office of Management and Budget Circular A–87, incurred for fiscal years prior to fiscal year 1992.
Any right of action or other remedy (other than those relating to a criminal offense) relating to any disallowance of costs shall be barred unless the Secretary has given notice of any such disallowance within three hundred and sixty-five days of receiving any required annual single agency audit report or, for any period covered by law or regulation in force prior to October 19, 1984, any other required final audit report. Such notice shall set forth the right of appeal and hearing to the board of contract appeals pursuant to section 5331 of this title. For the purpose of determining the 365-day period specified in this paragraph, an audit report shall be deemed to have been received on the date of actual receipt by the Secretary, if, within 60 days after receiving the report, the Secretary does not give notice of a determination by the Secretary to reject the single-agency report as insufficient due to noncompliance with chapter 75 of title 31 or noncompliance with any other applicable law. Nothing in this subsection shall be deemed to enlarge the rights of the Secretary with respect to section 5123 of this title.
Upon the approval of a self-determination contract, the Secretary shall add to the contract the full amount of funds to which the contractor is entitled under subsection (a) of this section, subject to adjustments for each subsequent year that such tribe or tribal organization administers a Federal program, function, service, or activity under such contract.
In calculating the indirect costs associated with a self-determination contract for a construction program, the Secretary shall take into consideration only those costs associated with the administration of the contract and shall not take into consideration those moneys actually passed on by the tribal organization to construction contractors and subcontractors.
On an annual basis, the Secretary shall consult with, and solicit the participation of, Indian tribes and tribal organizations in the development of the budget for the Indian Health Service and the Bureau of Indian Affairs (including participation of Indian tribes and tribal organizations in formulating annual budget requests that the Secretary submits to the President for submission to Congress pursuant to section 1105 of title 31).
Notwithstanding any other provision of law, a tribal organization may use funds provided under a self-determination contract to meet matching or cost participation requirements under other Federal and non-Federal programs.
Depreciation and use allowances not otherwise specifically prohibited by law, including the depreciation of facilities owned by the tribe or tribal organization.
Building, realty, and facilities costs, including rental costs or mortgage expenses.
Automated data processing and similar equipment or services.
Costs for capital assets and repairs.
Professional services, other than services provided in connection with judicial proceedings by or against the United States.
Insurance and indemnification, including insurance covering the risk of loss of or damage to property used in connection with the contract without regard to the ownership of such property.
Costs incurred to raise funds or contributions from non-Federal sources for the purpose of furthering the goals and objectives of the self-determination contract.
Interest expenses paid on capital expenditures such as buildings, building renovation, or acquisition or fabrication of capital equipment, and interest expenses on loans necessitated due to delays by the Secretary in providing funds under a contract.
Expenses of a governing body of a tribal organization that are attributable to the management or operation of programs under this chapter.
Costs associated with the management of pension funds, self-insurance funds, and other funds of the tribal organization that provide for participation by the Federal Government.
The Secretary may only suspend, withhold, or delay the payment of funds for a period of 30 days beginning on the date the Secretary makes a determination under this paragraph to a tribal organization under a self-determination contract, if the Secretary determines that the tribal organization has failed to substantially carry out the contract without good cause. In any such case, the Secretary shall provide the tribal organization with reasonable advance written notice, technical assistance (subject to available resources) to assist the tribal organization, a hearing on the record not later than 10 days after the date of such determination or such later date as the tribal organization shall approve, and promptly release any funds withheld upon subsequent compliance.
With respect to any hearing or appeal conducted pursuant to this subsection, the Secretary shall have the burden of proof to establish by clearly demonstrating the validity of the grounds for suspending, withholding, or delaying payment of funds.
shall not be a basis for reducing the amount of funds otherwise obligated to the contract.
To the extent that programs, functions, services, or activities carried out by tribal organizations pursuant to contracts entered into under this chapter reduce the administrative or other responsibilities of the Secretary with respect to the operation of Indian programs and result in savings that have not otherwise been included in the amount of contract funds determined under subsection (a) of this section, the Secretary shall make such savings available for the provision of additional services to program beneficiaries, either directly or through contractors, in a manner equitable to both direct and contracted programs.
Notwithstanding any other provision of law (including any regulation), a tribal organization that carries out a self-determination contract may, with respect to allocations within the approved budget of the contract, rebudget to meet contract requirements, if such rebudgeting would not have an adverse effect on the performance of the contract.
This chapter, referred to in subsecs. (a)(1), (3), (b), (c), (k)(11), and (n), was in the original “this Act”, meaning Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of this title and Tables.
Section was formerly classified to section 450j–1 of this title prior to editorial reclassification and renumbering as this section.
A prior section 106 of Pub. L. 93–638 was renumbered section 105 by Pub. L. 100–472 and is classified to section 5324 of this title.
2000—Subsecs. (c) to (o). Pub. L. 106–260 added subsec. (c) and redesignated former subsecs. (c) to (n) as (d) to (o), respectively.
1998—Subsecs. (c) to (o). Pub. L. 105–362 redesignated subsecs. (d) to (o) as (c) to (n), respectively, and struck out former subsec. (c) which related to Secretary’s annual report to Congress on implementation of this chapter.
1994—Subsec. (a)(1). Pub. L. 103–413, § 102(14)(A), inserted before period at end “, without regard to any organizational level within the Department of the Interior or the Department of Health and Human Services, as appropriate, at which the program, function, service, or activity or portion thereof, including supportive administrative functions that are otherwise contractable, is operated”.
Subsec. (a)(2). Pub. L. 103–413, § 102(14)(B), inserted “an amount for” after “consist of”.
Subsec. (a)(4) to (6). Pub. L. 103–413, § 102(14)(C), added pars. (4) to (6).
Subsec. (c). Pub. L. 103–413, § 102(15)(A), substituted “May 15” for “March 15” in introductory provisions.
Subsec. (c)(1), (2). Pub. L. 103–413, § 102(15)(B), substituted “contract support costs” for “indirect costs”.
Subsec. (c)(6). Pub. L. 103–413, § 102(15)(C)–(E), added par. (6).
Subsecs. (j) to (o). Pub. L. 103–413, § 102(19), added subsecs. (j) to (o).
1990—Subsec. (e). Pub. L. 101–644 substituted “1992” for “1988”.
Subsec. (f). Pub. L. 101–301, § 2(a)(8), substituted “prior to enactment of chapter 75 of title 31” for “prior to enactment of the Single Agency Audit Act of 1984 (chapter 75 of title 31)”, which for purposes of codification was translated as “prior to October 19, 1984”, requiring no change in text.
Subsec. (i). Pub. L. 101–301, § 2(a)(9), substituted “agency personnel (area personnel in the Navajo Area and in the case of Indian tribes not served by an agency)” for “agency personnel”.


JEAN C. HAMILTON, UNITED STATES DISTRICT JUDGE.
This matter is before the Court on Missouri State prisoner Samuel Lomax's pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The motion is fully briefed and ready for disposition.
On August 3, 2011, a jury in the Circuit Court of St. Louis City, Missouri, found Petitioner guilty of one count of robbery in the first degree, one count of armed criminal action, two counts of robbery in the second degree, one count of attempted robbery in the second degree, one count of tampering in the first degree, one count of assault in the third degree, one count of resisting arrest, and one count of unlawful use of drug paraphernalia. On September 16, 2011, Petitioner was sentenced as a prior and persistent offender to consecutive life sentences on the robbery in the first degree and armed criminal action convictions, concurrent sentences of fifteen, seven, and four years on the remaining felonies, and concurrent sentences of ten months in a medium security institution on the misdemeanors. The Missouri Court of Appeals affirmed the convictions and sentence. State v. Lomax, 387 S.W.3d 420 (Mo. App. 2012). Petitioner thereafter filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15, which was denied without an evidentiary hearing. The Missouri Court of Appeals affirmed the denial of post-conviction relief. Lomax v. State, 507 S.W.3d 619 (Mo. App. 2016).
(4) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to advise Petitioner regarding the plea process.
The Court will address the claims in turn.
Jeffrey Schneider (Schneider) worked for a church organization in the City of St. Louis. The church organization owned a white 1995 Chevrolet half-ton pickup truck with the license plate number 1WG-534. On April 3, 2010, Schneider drove the truck to the church organization's office, parked it in the parking lot next to the main building, and went inside the building. The key used to start the truck was in Schneider's possession, and he did not leave it in the vehicle. When Schneider returned to the parking lot two to three hours later, the truck was gone and broken glass was on the ground where the truck had been parked. Schneider reported the theft to the police and provided the police with a description of the truck and its license plate number.
Several hours later, at approximately 5:15 p.m., David Scott (Scott) was walking along Oakland Avenue when he saw a struggle between a man and another person at a bus stop. Scott believed the man was an African American in his 40s, but Scott could see only the feet of the other person because the shelter at the bus stop obscured his view. Scott watched as the man and the other person pushed and pulled an object. A short while later, Scott saw the man run from the bus stop carrying a woman's purse. The man got into a white truck with the license plate number 1WG-534 and drove away. Scott noted the license plate number then went to the bus stop. There, he found an elderly woman who seemed distraught and confused; she had bruises on her face and scrapes on her arms and legs. The woman told Scott that the man he had seen running from the bus stop had stolen her purse. Scott called the police to report the incident.
When a police officer arrived at the bus stop, Scott and the elderly woman, Dorothy Mandjiak (Mandjiak), described the incident. The officer immediately broadcast the description of Mandjiak's assailant and of the truck. Mandjiak told the officer that the man had punched her in the face, and her face was swollen. As the officer took Mandjiak's report of the incident, the officer heard a radio broadcast regarding another robbery involving a man matching the description of Mandjiak's assailant and the white truck and license plate number the assailant had driven away. The second robbery occurred approximately seven blocks from where Mandjiak was attacked.
At approximately 5:25 p.m., Durie Shiebler (Shiebler) was trying to fuel a U-Haul truck at a gas station a few blocks from where Mandjiak had been attacked. Shiebler saw Defendant walking toward the truck. Defendant was wearing a yellow plaid jacket and dark pants and carrying a tire iron. Defendant reached into the truck where Shiebler was sitting, grabbed a wallet hanging from a cord or chain around Shiebler's neck, and “ripped it off really hard.” Defendant then opened the door of the truck and tried to forcibly pull Shiebler out of the truck. Schiebler [sic] fought back by kicking Defendant in the chest and then screaming. Defendant reached inside the truck and snatched Shiebler's purse, which was on the front seat. Shiebler's friend ran out of the gas station and scared Defendant off. Shiebler saw Defendant get into a white pickup truck and noted part of the license plate number, 1WG. Shiebler reported the robbery to police and described the truck. Shiebler also described Defendant as a tall, medium build, middle-aged, medium-skinned, African-American male. Shiebler later identified Defendant in a photo lineup. Shiebler also identified Defendant's jacket and the tire iron.
A short time later, at approximately 6:15 p.m., Ann Brockland (Brockland) was securing her two-year old son in a car seat in the back of her parked car near Lafayette Square. Brockland noticed a white Chevrolet pickup truck stop in the middle of the street after it passed her car. Brockland saw Defendant carrying a crowbar walk in front of her car. Brockland faced Defendant and asked what he wanted. Defendant raised the crowbar and told Brockland to “shut the f*** up or I'm going to f****** kill you.” Defendant opened the passenger door of Brockland's car and took her purse, which had been on the front seat. Defendant told Brockland that if the purse did not have any money in it, he would kill her. As Defendant began to rummage through the purse, he was startled and walked toward the truck. Brockland started screaming, and Defendant got into the truck on the driver's side and drove away. Brockland saw that Defendant was the only person in the truck. Brockland reported the incident to police and provided a description of Defendant, his clothing, and the white pickup truck. Brockland later identified Defendant in a live lineup. She also recognized some of her property that was subsequently found inside the white truck.
Later that night, just after 10 p.m., Courtney Tiemann (Tiemann) parked her car on a side street near an apartment building on Washington Avenue. After exiting her car, Tiemann heard a loud noise and saw Defendant jump out of a white pickup truck. As Defendant lunged toward Tiemann, she turned and faced him, but he grabbed at her necklace and knocked her to the ground. Defendant also grabbed Tiemann's left arm, leaving a bruise. When Tiemann screamed, Defendant ran back to the truck, hopped in, and took off. Tiemann reported the incident to police and provided a description of Defendant, his clothing, and the white truck. A witness to the incident involving Tiemann and Defendant provided the license plate number of the truck. Tiemann subsequently identified Defendant in a live lineup.
After the incident involving Tiemann and Defendant, police placed a “wanted” notice on the white pickup truck. One of the officers then left the police station at the end of his shift. As the officer was driving home, the officer observed a pickup truck matching the description of the white Chevrolet pickup truck on which he had placed the “wanted” notice. The officer followed the truck and found it parked 15 to 20 blocks away from the location of the incident involving Tiemann and Defendant. The officer confirmed the license plate number as the same number provided by the witness to the incident involving Tiemann and Defendant, then he notified an officer still on duty that he had located the “wanted” vehicle. The truck then drove away.
When officers conducted a search of Defendant incident to the arrest, they found a glass smoking tube typically used for smoking crack. Subsequent testing revealed that the pipe contained traces of cocaine base. The officers then searched the truck and found that the steering column had been cracked and that a screwdriver had been used instead of a key in the ignition. The officers also found inside the truck a tire iron and clothing matching the description of the clothing worn by the suspect involved in the robberies or attempted robberies of Mandjiak, Shiebler, Brockland, and Tiemann.
In his first point, Defendant claims the trial court erred in overruling his motions for judgment of acquittal and in entering judgment on the jury's finding of guilty on Count VI, first-degree tampering, because the evidence was insufficient to establish beyond a reasonable doubt that Defendant did not have permission to possess or operate the truck. Defendant argues that the owner of the truck did not testify and that the State did not present any evidence showing that Defendant did not have the owner's permission….
In reviewing a challenge to the sufficiency of the evidence to support the jury's verdict, this Court must look to the elements of the crime, consider each in turn, and consider whether a reasonable juror could have found the defendant guilty of each of the elements beyond a reasonable doubt. State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001); State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993). We view the evidence and all favorable inferences drawn therefrom in the light most favorable to the verdict and disregard inferences to the contrary. Whalen, 49 S.W.3d at 184; Grim, 854 S.W.2d at 411. This Court will not supply missing evidence or draw unreasonable, speculative, or forced inferences. Whalen, 49 S.W.3d at 184. “[The] [t]estimony of a single witness, if deemed credible by the jury, may be considered sufficient for conviction, though that testimony is uncertain or inconsistent.” State v. Uptegrove, 330 S.W.3d 586, 590 (Mo. App. W.D. 2011), quoting State v. Case, 140 S.W.3d 80, 91 (Mo. App. W.D. 2004).
(2) He or she knowingly receives, possesses, sells, alters, defaces, destroys or unlawfully operates an automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle without the consent of the owner thereof.
“To establish this offense, the State must prove the defendant knew he was operating the car without the consent of the owner.” State v. Presberry, 128 S.W.3d 80, 96 (Mo. App. E.D. 2003) (quotation omitted). Direct proof of the required mental state may not be available, so intent may be inferred from circumstantial evidence. Presberry, 128 S.W.3d at 96. “Even in a circumstantial evidence case, the evidence need not be conclusive of guilt, nor must the evidence exclude every hypothesis of innocence.” Id., citing State v. Martin, 882 S.W.2d 768, 770 (Mo. App. E.D.l994). “Proof of a defendant's knowledge he is operating a motor vehicle without the owner's consent may take several forms.” Presberry, 128 S.W.3d at 96. When a defendant is stopped while operating a stolen vehicle, evidence such as the presence of a broken steering column in the vehicle or the presence of a tool used to bypass the ignition key is strong evidence to support the inference that the defendant knowingly operated the vehicle without the owner's consent. Id. “Additionally, the knowledge element for first degree tampering may be established through evidence that links the defendant who is stopped while operating a stolen vehicle to the theft of that vehicle.” Id.
Here, the State presented sufficient evidence establishing that Defendant had committed first-degree tampering.
First, at the time of his arrest, Defendant admitted that he was driving a stolen car. One of the police officers who had forcibly removed Defendant from the driver's seat of the truck after the collision with another vehicle testified that, after advising Defendant of his Miranda rights, including the right to remain silent, Defendant told the officer, “I know all that s***. You can't chase stolen cars, you're in more trouble than I am.” The officer also testified that he observed the steering column had been cracked and that a screwdriver had been used instead of a key in the ignition, which was a known method of operating a vehicle without using a key to start it.
Second, we disagree with Defendant's assertion that no “officer or agent” of the record owner of the truck, the church organization, testified at trial and that no evidence supported the State's claim that Schneider was an agent of the church organization. “The proof of a lack of consent under Section 569.080 is not limited to the testimony of the title owner, but may be provided by the testimony of the person who had the exclusive use and possession of the vehicle at the time of the alleged tampering.” State v. White, 947 S.W.2d 101, 103 (Mo. App. W.D. 1997). Schneider, who was the employee of the church organization that owned the white 1995 Chevrolet half-ton pickup truck with the license plate number 1WG-534, testified that he drove the truck in connection with his employment. Schneider testified that only he had permission to operate the truck on behalf of employer, that he did not know Defendant, and that he had not given Defendant permission to operate the truck. Schneider testified that on the day the truck was stolen, he had driven it to the church organization's office, parked it in the parking lot next to the main building, and went inside the building. Schneider testified that the key used to start the truck was in his possession and that he did not leave it in the vehicle. Schneider further testified that when he returned to the parking lot two to three hours later, the truck was gone and broken glass was on the ground where the truck had been parked. Schneider reported the theft to the police and provided the police with a description of the truck and its license plate number. Schneider's testimony regarding his employment relationship with the church organization and the fact that his employer had given only Schneider permission to operate the truck on behalf of employer was sufficient to establish that neither he nor the church organization gave Defendant permission to operate the truck. See White, 947 S.W.2d at 103.
Accordingly, from this evidence, a reasonable juror could have inferred that Defendant operated the truck without the consent of the church organization. Defendant's first point is denied.
(Resp. Exh. E, PP. 7-10).


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Supreme Court: the highest court in the land. Their job: to decide the constitutionality of cases. But is that what they are really doing? Can we trust that their decisions are just? Two important cases in history can help answer this question. A 1896 U.
S. Supreme Court case, Plessy v. Ferguson, made facilities and schools separate based on race. In another case in 1954, Brown v. Board of Education, the court reversed its decision and said that separate was not equal.
These two cases teach two lessons about the U.S. Supreme Court.
Plessy shows that our justice system has failed at times to establish justice. Brown shows that even though the Court rules justly, justice isn't guaranteed.Many events led up to Plessy v. Ferguson. For example: after the Congress withdrew federal troops from the South in 1877, conditions for blacks deteriorated. The government pushed blacks into an inferior position.
The government took action to prevent blacks from voting immediately.They embarked poll taxes, "grandfather clauses". They also segregated on trains, in parks, schools, restaurants, theaters, swimming pools, and even cemeteries. If blacks broke these segregation laws, they were likely to end up either in prison or dead!.The case of Plessy v. Ferguson was a very important case in American History because it enforced segregation even making it legal, and made segregation a concrete reality for the people of the United States.
It began with a man called Homer Plessy. Plessy was 7/8 white and only had 1/8 drop of black blood in him, but under Louisiana law, was considered black. In 1890, Louisiana passed a law providing that "all railway companies carrying passengers in their coaches in this state shall provide equal but separate accommodations for the white and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations." Plessy believed that the law was unjust and so he challenged the law by refusing to leave the white railroad car.
He was arrested and taken to trial. At this trial he argued that the Separate Car Act violated the Thirteenth and Fourteenth Amendments to the Constitution. But he was found guilty. Plessy then appealed the decision to the Supreme Court of Louisiana.
Again his case was upheld. Plessy appealed again in 1896 to the Supreme Court of the United States. Homer Plessy was found guilty once again.
The impact of the court's decision was a harsh one. It created a reality that was a nightmare to many. Their lives would be changed dramatically. They would officially be separated and considered low down in society.Plessy v. Ferguson was the law of the land until 1954, when it was finally, successfully overturned by Brown v.
Board of Education. In 1954, a little girl named Linda Brown in Topeka, Kansas had to walk 5 miles to school. She didn't get recess and could not play with any of the other children who were all white. Her parents filed a case to the U.
S. Supreme Court saying that there is no way blacks and whites could get equal education if they were separated. The court ruled that separate is not equal.The amount of time between Plessy v. Ferguson and Brown v. Board of Education shows just how long it took to get justice for blacks from the Supreme Court.
It amazes me that our government could even question if blacks have the right to justice. It should be basic knowledge for us to know that it is wrong to treat any people so unjustly. Just to prove my point here are some questions you can ask yourself: are blacks human beings just like whites? Do blacks and whites both have feelings and needs? And finally, is the only difference between blacks and whites is that they have a different complexion? I am confused as to why so many people, including Justices on our Supreme Court would not answer yes to all these questions. How could anyone who had any intelligence think it was acceptable to treat blacks differently?.Fortunately the Court did come to its senses in Brown v. Board of Education.
Yet just because The U.S. Supreme Court ruled that separate is not equal it did not mean that blacks were automatically treated equally. After Brown v. Board of Education happened, there needed to be the Civil Rights Movement, in which many people were involved to push society to change.
Two people who led the Civil Rights Movement were Martin Luther King Jr. and Rosa Parks. We must acknowledge that it wasn't only those people, there were others working and helping the same cause. There were many ways that they impacted The Civil Rights Movement.
They gave speeches, wrote letters, led marches, held meetings and many other strategies. They also endured mental and physical hardships. Only through the Civil Rights Movement did the promise of Brown actually get achieved.
These people were poor, wealthy, high class, low class, black, some white, short and tall. Basically, there was a wide range of different kinds of people. Not everyone automatically changed their frame of mind when The U.S. Supreme Court ruled separate is not equal.
There were still many people out there who were racist and wanted to keep blacks in an inferior position.
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