NANCY GIROUX, Superintendent, District Attorney of Beaver County, and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
Before the Court is the counseled Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”) filed on behalf of Petitioner, Joseph Shegog (“Petitioner” or “Shegog”). Shegog is currently incarcerated in the State Correctional Institution in Albion, Pennsylvania. For the reasons that follow, the Petition will be dismissed and a certificate of appealability will be denied.
Shegog is challenging the judgment of sentence imposed upon him by the Court of Common Pleas of Beaver County on December 15, 2005. The charges against Shegog stem from the December 24, 2000, homicide of Joseph Anderson. According to the Commonwealth's theory of the case and evidence adduced at trial, Shegog shot and killed Anderson. At trial, Shegog advanced an innocence defense. Following a jury trial presided over by the Honorable John D. McBride of the Court of Common Pleas of Beaver County, Shegog was convicted of Murder in the First Degree and Carrying a Firearm Without a License. On January 11, 2006, Shegog was sentenced to a mandatory sentence of life imprisonment without the possibility of parole.
Shegog appealed his conviction and sentence to the Superior Court of Pennsylvania. Shegog, through counsel, raised seven challenges, none of which are raised in the instant federal habeas case. Shegog's conviction and sentence were affirmed on September 11, 2007, and the Supreme Court of Pennsylvania denied review by order dated November 30, 2009.
Unsuccessful on direct appeal, Shegog filed a pro se petition for collateral review under the Pennsylvania Post-Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. § 9541 - 9546.
Counsel was appointed and filed a Supplemental PCRA Petition raising nine (9) claims of ineffective assistance of counsel and three (3) constitutional claims. On April 8, 2013, the PCRA court denied each of Shegog's claims. On appeal, the Superior Court of Pennsylvania affirmed the PCRA order. The Supreme Court of Pennsylvania again denied review.
Having been denied relief in state court, on December 16, 2014, Shegog filed in this Court a pro se habeas petition and on January 26, 2015, requested an extension of time in which to file an Amended Petition. Shegog was granted an extension until March 2, 2015, to file his Amended Petition. On February 27, 2015, Shegog requested another extension to file his Amended Petition, which requested was granted and Shegog was given an extension until May 8, 2015, to file his Amended Complaint. On May 5, 2015, counsel entered his appearance for Shegog. Thereafter, counsel sought a number of extensions of time to file an Amended Petition and brief in support. On September 1, 2015, counsel filed an Amended Petition (ECF No. 13) and the following month, on October 16, 2015, filed a brief in support of the Amended Petition. (ECF No. 18). On October 25, 2015, filed amended the Petition to correct a “slight technical matter.” (ECF No. 21). The Amended Petition filed at ECF No. 21, remains the operative petition.
GROUND ONE: Petitioner's Sixth Amendment right to a public trial was violated due to ineffective assistance of counsel for not objecting to procedure where part of the jury selection was closed to the public as well as to Petitioner's family. The public's right to attend the jury selection process is a clearly established right under federal law.
GROUND TWO: Petitioner was denied effective assistance of counsel because trial counsel had a conflict of interest.
GROUND THREE: Trial counsel was ineffective for failing to conduct an adequate investigation and call an available exculpatory eyewitness, Rashawdi Pugh, at trial, who would have testified that he saw the decedent reaching for and drawing a gun when he was shot, supporting a claim of self-defense.
Habeas Pet. (ECF No. 21). Respondents filed a timely Answer (ECF No. 24), to which Shegog filed a traverse reply brief (ECF No. 27). The matter is fully briefed and ripe for disposition.
Because it is not contested that each of Shegog's ineffective assistance of counsel claims were adjudicated on the merits by the Superior Court of Pennsylvania, review of his claims is subject to the Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214 (“AEDPA”). Under AEDPA, habeas relief is unavailable unless the state court's decision (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254.
A decision by a state court is “contrary to . . . clearly established law if it applies a rule that contradicts the governing law set forth” in United States Supreme Court precedent. Price v. Vincent, 538 U.S. 634, 640 (2003). (quotations and citations omitted). A state court need not have cited any particular Supreme Court decisions, and this standard affords considerable latitude to the state court, “so long as neither the reasoning nor the result of the state-court decision contradicts” federal law. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). In this regard, the state court's decision need not even be accompanied by an explanation, as long as there was a “reasonable basis for the state court to deny relief.” Harrington v. Richter, 562 U.S. 86, 98 (2011).
However, “when the state court pens a clear, reasoned opinion, federal habeas courts may not speculate as to theories that ‘could have supported' the state court's decision. Dennis v. Sec'y, Pa. Dep't of Corrs., 834 F.3d 263, 283 (3d Cir. 2016) (en banc). If the state court does provide reasoning, the state court decision is not entitled to deference if no “fairminded jurist ” could “disagree that those arguments or theories are not consistent with the holding in a prior decision of” the Supreme Court. Richter, 562 U.S. at 102. The state court may not add or remove a factor from a clearly established federal law test. Dennis, 834 F.3d at 307.
Petitioner's claims will be reviewed with these standards in mind.
a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.


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1. The State has power to issue a cease and desist order to enforce at least the requirement that the Association consent to suit against it by service of process on the Secretary of the Commonwealth. Pp. 646-647.
2. The contacts and ties of appellants with Virginia residents, together with that State's interest in faithful observance of the certificate obligations, justify subjecting appellants to cease and desist proceedings under 6. Pp. 647-648.
3. Virginia's subjection of the Association to the jurisdiction of the State Commission in a 6 proceeding is consistent with fair play and substantial justice, and is not offensive to the Due Process Clause of the Fourteenth Amendment. P. 649.
4. The power of the State to subject the Association to the jurisdiction of the State Commission and to authorize a cease and [339 U.S. 643, 644] desist order under 6 is not vitiated by the fact that business activities carried on outside of the State are affected. P. 650.
5. Service of process on appellants by registered mail did not violate the requirements of due process. Pp. 650-651.
188 Va. 877, 51 S. E. 2d 263, affirmed.
An order of the Virginia Corporation Commission requiring appellants to cease and desist from offering and issuing, without a permit, certificates of insurance to residents of the State, was affirmed by the Supreme Court of Appeals. 188 Va. 877, 51 S. E. 2d 263. On appeal to this Court, affirmed, p. 651.
Moses G. Hubbard, Jr. argued the cause for appellants. With him on the brief was Thomas B. Gay.
Walter E. Rogers, Assistant Attorney General of Virginia, argued the cause for appellee. With him on the brief was J. Lindsay Almond, Jr., Attorney General.
A brief supporting appellee was filed as amici curiae by Nathaniel L. Goldstein, Attorney General, Wendell P. Brown, Solicitor General, and John C. Crary, Jr., Assistant Attorney General, for the State of New York; William L. Phinney, Attorney General, for the State of New Hampshire; and Hall Hammond, Attorney General, for the State of Maryland.
While violation of the Act is a misdemeanor punishable by criminal sanctions, 6 provides another method for enforcement. After notice and a hearing "on the merits," the State Corporation Commission is authorized to issue a cease and desist order restraining violations of the Act. The section also provides for service by registered mail where other types of service are unavailable "because the offering is by advertisement and/or solicitation through periodicals, mail, telephone, telegraph, radio, or other means of communication from beyond the limits of the State . . . ." The highest court of Virginia rejected contentions that this section violates constitutional requirements of due process, and the case is properly here on appeal under 28 U.S.C. 1257 (2).
The appellant Travelers Health Association was incorporated in Nebraska as a nonprofit membership association in 1904. Since that time its only office has been located in Omaha, from which it has conducted a mailorder health insurance business. New members pay an initiation fee and obligate themselves to pay periodic [339 U.S. 643, 646] assessments at the Omaha office. The funds so collected are used for operating expenses and sick benefits to members. The Association has no paid agents; its new members are usually obtained through the unpaid activities of those already members, who are encouraged to recommend the Association to friends and submit their names to the home office. The appellant Pratt in Omaha mails solicitations to these prospects. He encloses blank applications which, if signed and returned to the home office with the required fee, usually result in election of applicants as members. Certificates are then mailed, subject to return within 10 days "if not satisfactory." Travelers has solicited Virginia members in this manner since 1904, and has caused many sick benefit claims to be investigated. When these proceedings were instituted, it had approximately 800 Virginia members.
The Commission, holding that the foregoing facts supported the state's power to act in 6 proceedings, overruled appellants' objection to jurisdiction and their motion to quash service. The Association and its treasurer were ordered to cease and desist from further solicitations or sales of certificates to Virginia residents "through medium of any advertisement from within or from without the State, and/or through the mails or otherwise, by intra- or inter-state communication, . . . unless and until" it obtained authority in accordance with the "Blue Sky Law." This order was affirmed by the Virginia Court of Appeals. 188 Va. 877, 882, 51 S. E. 2d 263, 271.
Appellants do not question the validity of the Virginia law "to the extent that it provides that individual and corporate residents of other states shall not come into the State for the purpose of doing business there without first submitting to the regulatory authority of the State." As to such state power see, e. g., Hall v. Geiger-Jones Co., 242 U.S. 539 . Their basic contention is that all their activities take place in Nebraska, and that consequently [339 U.S. 643, 647] Virginia has no power to reach them in cease and desist proceedings to enforce any part of its regulatory law. We cannot agree with this general due process objection, for we think the state has power to issue a "cease and desist order" enforcing at least that regulatory provision requiring the Association to accept service of process by Virginia claimants on the Secretary of the Commonwealth.
Appellants' chief reliance for the due process contention is on Minnesota Assn. v. Benn, 261 U.S. 140 . There a Minnesota association obtained members in Montana by the same mail solicitation process used by Travelers to get Virginia members. The certificates issued to Montana members also reserved the right to investigate claims, although the Court pointed out that Benn's claim had not been investigated. This Court held that since the contracts were "executed and to be performed" in Minnesota, the Association was not "doing business" in Montana and therefore could not be sued in Montana courts unless "consent" to Montana suits could be implied. The Court found the circumstances under which the insurance transactions took place insufficient to support such an implication.
But where business activities reach out beyond one state and create continuing relationships and obligations with citizens of another state, courts need not resort to a fictional "consent" in order to sustain the jurisdiction of regulatory agencies in the latter state. And in considering what constitutes "doing business" sufficiently to justify regulation in the state where the effects of the "business" are felt, the narrow grounds relied on by the Court in the Benn case cannot be deemed controlling.
In Osborn v. Ozlin, 310 U.S. 53, 62 , we recognized that a state has a legitimate interest in all insurance policies protecting its residents against risks, an interest which the state can protect even though the "state action may have repercussions beyond state lines . . . ." And in Hoopeston [339 U.S. 643, 648] Canning Co. v. Cullen, 318 U.S. 313, 316 , we rejected the contention, based on the Benn case among others, that a state's power to regulate must be determined by a "conceptualistic discussion of theories of the place of contracting or of performance." Instead we accorded "great weight" to the "consequences" of the contractual obligations in the state where the insured resided and the "degree of interest" that state had in seeing that those obligations were faithfully carried out. And in International Shoe Co. v. Washington, 326 U.S. 310, 316 , this Court, after reviewing past cases, concluded: "due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'"
Measured by the principles of the Osborn, Hoopeston and International Shoe cases, the contacts and ties of appellants with Virginia residents, together with that state's interest in faithful observance of the certificate obligations, justify subjecting appellants to cease and desist proceedings under 6. The Association did not engage in mere isolated or short-lived transactions. Its insurance certificates, systematically and widely delivered in Virginia following solicitation based on recommendations of Virginians, create continuing obligations between the Association and each of the many certificate holders in the state. Appellants have caused claims for losses to be investigated and the Virginia courts were available to them in seeking to enforce obligations created by the group of certificates. See International Shoe Co. v. Washington, supra, at 320.
Moreover, if Virginia is without power to require this Association to accept service of process on the Secretary of the Commonwealth, the only forum for injured certificate holders might be Nebraska. Health benefit [339 U.S. 643, 649] claims are seldom so large that Virginia policyholders could afford the expense and trouble of a Nebraska law suit. In addition, suits on alleged losses can be more conveniently tried in Virginia where witnesses would most likely live and where claims for losses would presumably be investigated. Such factors have been given great weight in applying the doctrine of forum non conveniens. See Gulf Oil Co. v. Gilbert, 330 U.S. 501, 508 . And prior decisions of this Court have referred to the unwisdom, unfairness and injustice of permitting policyholders to seek redress only in some distant state where the insurer is incorporated. 3 The Due Process Clause does not forbid a state to protect its citizens from such injustice.
There is, of course, one method by which claimants could recover from appellants in Virginia courts without the aid of substituted service of process: certificate holders in Virginia could all be garnished to the extent of their obligations to the Association. See Huron Corp. v. Lincoln Co., 312 U.S. 183, 193 . While such an indirect procedure would undeniably be more troublesome to claimants than the plan adopted by the state in its "Blue Sky Law," it would clearly be even more harassing to the Association and its Virginia members. Metaphysical concepts of "implied consent" and "presence" in a state should not be solidified into a constitutional barrier against Virginia's simple, direct and fair plan for service of process on the Secretary of the Commonwealth.
Appellants also contend that 6 as here applied violates due process because the Commission order attempts to "destroy or impair" their right to make contracts in Nebraska with Virginia residents. Insofar as this contention can be raised in a special appearance merely to contest jurisdiction, it is essentially the same as the due process issue discussed above. For reasons just given, Virginia has power to subject Travelers to the jurisdiction of its Corporation Commission, and its cease and desist provisions designed to accomplish this purpose "can not be attacked merely because they affect business activities which are carried on outside the state." Hoopeston Canning Co. v. Cullen, supra, 320-321. See also Osborn v. Ozlin, 310 U.S. 53, 62 . These two opinions make clear that Allgeyer v. Louisiana, 165 U.S. 578 , requires no different result.
Appellants concede that in the Osborn and Hoopeston cases we sustained state laws providing protective standards for policyholders in those states, even though compliance with those standards by the insurance companies could have repercussions on similar out-of-state contracts. It is argued, however, that those cases are distinguishable because they both involved companies which were "licensed to do business in the state of the forum and were actually doing business within the state . . . ." But while Hoopeston Canning Co. had done business in New York under an old law, it brought the case here to challenge certain provisions of a new licensing law with which it had to comply if it was to do business there in the future. Thus it was seeking the same kind of relief that appellants seek here, and for the same general purpose. What we there said as to New York's power is equally applicable to Virginia's power here.
It is also suggested that service of process on appellants by registered mail does not meet due process requirements. [339 U.S. 643, 651] What we have said answers this contention insofar as it alleges a lack of state jurisdiction because appellants were served outside Virginia. If service by mail is challenged as not providing adequate and reasonable notice, the contention has been answered by International Shoe Co. v. Washington, supra, 320-321. See also Mullane v. Central Hanover Bank, 339 U.S. 306 .
[ Footnote 1 ] Acts of the General Assembly of Virginia, 1928, c. 529, p. 1373, as amended, Acts of 1932, c. 236, p. 434; Michie's 1942 Code of Virginia, 3848 (47) et seq.
[ Footnote 2 ] Michie 3848 (51), (55).
[ Footnote 3 ] Lumbermen's Ins. Co. v. Meyer, 197 U.S. 407, 418 , 419; Mutual Life Ins. Co. v. Spratley, 172 U.S. 602, 619 ; cf. International Shoe Co. v. Washington, 326 U.S. 310, 319 .
[ Footnote 4 ] One federal question suggested in the appellants' statement of jurisdiction was that 6 as interpreted by the state court infringed federal control of the mails delegated to Congress by Art. I, 8, cl. 7 of the United States Constitution. But appellants' brief on submission of the case does not include this question in the "specifications of errors relied upon" and does not even mention that constitutional clause.
[ Footnote 5 ] For examples of problems which might be raised by attempts to impose punishment for violation of the order, see Strassheim v. Daily, 221 U.S. 280, 284 -285; cf. Hyatt v. Corkran, 188 U.S. 691, 712 , 719. Section 6 itself provides no method for enforcement, except insofar as such stature might be attributed to its provision for giving a cease and desist order "publicity . . . to the public through the press or otherwise as the commission may, in its discretion, determine to be advisable for the reasonable information and protection of the public."
Virginia's Blue Sky Law 1 is a comprehensive scheme for the protection of the state's investors. Securities can be offered for sale in the state only after the issuer obtains a permit. 2 To get it, the applicant must supply detailed information about its solvency, its earning record, and the nature of the securities. 3 Promoters may be required to supply a bond. 4 Applicants must appoint an agent, the Secretary of the Commonwealth, to receive service of process. 5 Only after proof of their good character and financial responsibility are security salesmen licensed. 6 After issuance, the state Corporation Commission is authorized again to investigate the issuer with an eye to possible revocation of its permit. 7 These are the high points of the comprehensive regulation which Virginia seeks to apply to appellants.
That the business of insurance is interstate commerce is established by United States v. South-Eastern Under-writers Assn., 322 U.S. 533 . Any doubts about the power of a state to exclude an interstate insurance company which refuses to comply with its regulatory laws were dispelled by the passage of the McCarran Act. 59 Stat. 33, 15 U.S.C. 1011-1015. See Robertson v. California, 328 U.S. 440, 461 , 462.
The requirements of due process do not, in my opinion, preclude the extension of Virginia's regulatory scheme to appellant. I put to one side the case where a policyholder seeks to sue the out-of-state company in Virginia. [339 U.S. 643, 653] His ability to sue is not necessarily the measure of Virginia's power to regulate, as the Court said in Old Wayne Life Assn. v. McDonough, 204 U.S. 8, 21 . It is the nature of the state's action that determines the kind or degree of activity in the state necessary for satisfying the requirements of due process. What is necessary to sustain a tax or to maintain a suit by a creditor (see Old Wayne Life Assn. v. McDonough, supra; Provident Savings Assn. v. Kentucky, 239 U.S. 103, 114 -116; Isaacs, An Analysis of Doing Business, 25 Col. L. Rev. 1018, 1024) is not in my view determinative when the state seeks to regulate solicitation within its borders.
A state is helpless when the out-of-state company operates beyond the borders, establishes no office in the state, and has no agents, salesmen, or solicitors to obtain [339 U.S. 643, 654] business for it within the state. Then it is beyond the reach of process. In the present case, however, that is only the formal arrangement. The actual arrangement shows a method of soliciting business within Virginia as active, continuous, and methodical as it would be if regular agents or solicitors were employed. Cf. Hoopeston Co. v. Cullen, 318 U.S. 313 .
Practically all of appellants' business in Virginia originates with and is the result of the activities of its Virginia members. The recommendation of a member relieves an applicant of the duty of furnishing any reference. Though the old members are not designated as "agents," it "clearly appears," as stated by the Supreme Court of Appeals, "that the association relies almost exclusively on these activities of its Virginia members to bring about an expansion of its Virginia business." Travelers Health Assn. v. Virginia, 188 Va. 877, 887; 51 S. E. 2d 263, 267. This device for soliciting business in Virginia may be unconventional and unorthodox; but it operates functionally precisely as though appellants had formally designated the Virginia members as their agents. Through these people appellants have realistically entered the state, looking for and obtaining business. Whether such solicitation is isolated or continuous, it is activity which Virginia can regulate. See Hooper v. California, 155 U.S. 648, 658 . The requirements of due process may demand more or less 9 minimal contacts than are present here, depending on what the pinch of the decision is or what it requires of the foreign corporation. See International Shoe Co. v. Washington, 326 U.S. 310, 316 -319. Where [339 U.S. 643, 655] the corporate project entails the use of one or more people in the state for the solicitation of business, in my view it does no violence to the traditional concept of due process to allow the state to provide protective measures governing that solicitation. That is all that is done here.
I cannot agree that this appeal is premature. Virginia has placed an injunction on appellants, an injunction which may have numerous consequences, e. g., contempt proceedings. There is an existing controversy - real and vital to appellants.
[ Footnote 2 ] Michie 3848 (47).
[ Footnote 3 ] Michie 3848 (51).
[ Footnote 4 ] Michie 3848 (51) (r).
[ Footnote 5 ] Michie 3848 (55).
[ Footnote 6 ] Michie 3848 (50) (m).
[ Footnote 7 ] Michie 3848 (53).
[ Footnote 8 ] By 3 (a) (8) insurance policies issued by a corporation subject to the supervision of specified state agencies are exempt from this federal regulation. Section 18 provides that the Act does not affect the jurisdiction of any state agency over a security or a person.
[ Footnote 9 ] As Mr. Justice Rutledge said in Frene v. Louisville Cement Co., 77 U.S. App. D.C. 129, 134, 134 F.2d 511, 516, ". . . some casual or even single acts done within the borders of the sovereignty may confer power to acquire jurisdiction of the person, provided there is also reasonable provision for giving notice of the suit in accordance with minimal due process requirements."
The State Corporation Commission of Virginia instituted the proceedings leading to the cease and desist order entered in the instant case under 6 of the Virginia Securities Law. Michie's Va. Code, 1942, 3848 (52). That section provides for service by registered mail upon persons or corporations offering securities through the mails or by other means of communication. After hearing, the Commission is authorized to issue the order and to give it such publicity as the Commission considers desirable.
"Respondents rely on the fact that their contacts with citizens of Virginia are by mail, that they are not doing business in Virginia and that they do not enter Virginia either personally or by agents. In setting up this defense they lose sight of the nature of this action. They are not charged with doing business in Virginia but with offering and advertising for sale and promoting the sale of insurance contracts in Virginia by mail and the action is to foreclose them from these activities. Whether the action will suffice to actually stop them is beside the point. It will suffice to put them on notice of pertinent laws of Virginia, to give them an opportunity to be heard and the state an opportunity to determine the facts, and, if, after hearing, a cease and desist order is issued, the Commission will then be authorized to give such publicity to the order as it sees fit for the `information and protection of the public.'"
"No word found in or inference derived from Section 6, aforesaid, may properly, in our judgment, be said to impose penalties upon the respondents. . . ."
"There is no element of compulsion except such as may flow from a dread of the publicity attending such an order. In such cases, the only weapon available to the Commonwealth is to publicly advise that the [339 U.S. 643, 657] securities of the respondent do not bear the stamp of the state's approval and are being presented to the public without regard to the regulatory laws enacted to protect them. Section 6, supra, imposes no penalties, exacts no direct toll from those against whom its orders proceed. . . ."
The question of substituted service on the Secretary of the Commonwealth is not here in any aspect. As far as appears, service in this manner is not authorized by the Virginia statutes except where the nonresident has opened and is conducting a place of business within the State. Michie's Va. Code, 1942, 3848 (55)a. Up to this date Virginia has not claimed the power to require appellants, who do business in Virginia only by mail, to appoint the Secretary of the Commonwealth as their agent for service of process, nor have the courts of Virginia rendered judgment in a suit where service was made in that manner. I do not understand, therefore, what possible application the Court's reference to substituted service on the Secretary of the Commonwealth could have in this case. I would answer the question of due process when Virginia has attempted to apply its process to appellants in a proceeding that has consequences of a nature which entitle a person to the protection of the Due Process Clause. See Parker v. Los Angeles County, 338 U.S. 327 . I would, therefore, dismiss the appeal.
As stated, it seems to me that the majority opinion is saying that Virginia has more power than it claims in the instant proceeding. While Virginia has not attempted to do more than publicize the activities of appellants in the State, I read the majority opinion to intimate that under the service by registered letter Virginia might go further. The cease and desist order issued cannot validly compel appellants to designate the Secretary of the Commonwealth as their agent for service of process, any more than [339 U.S. 643, 658] it can constitutionally be considered as automatically accomplishing that result. An in personam judgment cannot be based upon service by registered letter on a nonresident corporation or a natural person, neither of whom has ever been within the State of Virginia. Pennoyer v. Neff, 95 U.S. 714 ; Old Wayne Life Assn. v. McDonough, 204 U.S. 8, 22 -23. If that may not be done directly, it may not be done indirectly. Certainly such service cannot be justified where its purpose is to make substituted service legal in the future. These nonresidents cannot be brought in through service by registered mail and compelled to designate the Secretary of the Commonwealth as their agent for service of process so that thereafter service may be effected upon such nonresidents by serving the Secretary. So to hold would allow the State to pull itself up by its own bootstraps.
Service by registered mail is said by the majority to be sufficient where the corporation has "minimum contacts" with the state of the forum. How many "contacts" a corporation or person must have before being subjected to suit we are not informed. Here all of appellants' contacts with the residents of Virginia were by mail. No agent of appellant corporation has entered the State, nor has the individual appellant. The contracts were made wholly in Nebraska. Under these circumstances, I would hold that appellants were never "present" in Virginia.
"For the terms `present' or `presence' are used merely to symbolize those activities of the corporation's agent within the state which courts will deem to be sufficient to satisfy the demands of due process." International Shoe Co. v. Washington, 326 U.S. 310, 316 -317.
As I understand the International Shoe Co. case, the minimum contacts which a corporation has in the State [339 U.S. 643, 659] must be "activities of the corporation's agent within the state." There were such contacts by agents within the State in that case. Service was made, in addition to notice by registered letter, by personal service within the State upon one of those agents. Service on an agent within the jurisdiction would seem to me indispensable to a judgment against a corporation. It would seem to be an a fortiori proposition that judgment could not be obtained against a natural person who was not available for personal service.
We are not dealing here with the power of Virginia to regulate the transaction of insurance business with its citizens, as was the case in Osborn v. Ozlin, 310 U.S. 53 , and Hoopeston Co. v. Cullen, 318 U.S. 313 . In the case at bar we are concerned only with how Virginia may enforce such power as it has. No question of the sufficiency of service was involved in either the Osborn or the Hoopeston case, both of which were brought against some officer of a state. The question in those cases was whether the State had power, and not whether, having the power, it had also acquired jurisdiction of a defendant against whom a judgment could be rendered enforcing that power.
I would not attempt to instruct Virginia as to how to protect its citizens from these intruders from Nebraska. But I do not believe we should even intimate that judgments in personam may be obtained, by the simple process of sending a registered letter, against a corporation whose agents have never been in the forum where suit is brought, or against a natural person who is not personally served within the State.

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The Second Circuit has reversed the district court’s denial of a downward adjustment for acceptance of responsibility where the defendant refused to assist the government in recovering 31 firearms he admitted selling illegally. Application Note 1(a) to U.S.S.G. §3E1.1 states that a defendant may not be denied the acceptance of responsibility adjustment for failing “to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction.” Since the defendant’s offenses of conviction did not involve these guns (they involved five guns he illegally sold to a government agent), the Court of Appeals held that he could not be denied acceptance of responsibility credit for this reason. The Court of Appeals also held that denying acceptance of responsibility because a defendant refused to cooperate with respect to uncharged criminal activity would violate Fifth Amendment rights against self—incrimination. U.S. v. Austin, __F.3d__, 1994 WL 45427 (2d Cir. 1994).
A defendant may appeal an upward adjustment under the guidelines, even where the district court also departs downward to a point below what the range would have been had there been no upward adjustment. The exception to this rule is where the district court states on the record that it would have departed no further downward, even if it had not imposed the upward adjustment. U.S. v. Elfant, 999 F.2d 674 (2d Cir. 1993). This analysis is consistent with the rule in most Circuits. See U.S. v. Shaw, 891 F.2d 528, 530 (5th Cir. 1989), U.S. v. Roberson, 872 F.2d 597, 608 (5th Cir.), cert. denied, 493 U.S. 861 (1989).
The government violated its plea agreement when it admitted at sentencing that a defendant’s assistance in a criminal investigation had been “substantial,” but refused to file a §5K1.1 motion since the defendant had not yet testified at upcoming trials. The plea agreement required the government to file a departure motion for substantial assistance in either the investigation “or” prosecution of another person. U.S. v. Dixon, 998 F.2d 228 (4th Cir. 1993).
In U.S. v. Mergerson, 995 F.2d 1285 (5th Cir. 1993), the Court of Appeals held in a drug case that a gun found between the mattress and box springs of the bed shared by the defendant and his girlfriend did not support an enhancement under U.S.S.G. §2D1.1(b)(1), because there was insufficient evidence that the defendant knew of the gun and had access to it. In this case, the defendant’s girlfriend purchased the gun before the defendant moved in with her.
In a case involving a contractor¹s submission of a fraudulent payment and performance bond with his bid to perform work on an Air Force base, the First Circuit determined the “loss” to the government under U.S.S.G. §2F1.1 to be the cost of a valid bond (in that case, $20,200). The Court of Appeals held that this figure is appropriate, because it represents the average cost of failure to perform the contract, adjusted by the average risk for performance failure. In reaching this result, the Court of Appeals rejected the district court’s determination that the “loss” was the difference between the defendant’s and the next lowest bid ($88,477), plus $250 for the administrative costs of awarding the contract to a new bidder. U.S. v. Stern, 13 F.3d 489 (1st Cir. 1994).
Where the defendant has a plea agreement under Fed.R.Crim.P. 11(e)(1)(B), rule 11(e) requires that the judge inform the defendant that the plea cannot be withdrawn if the court does not accept the government’s recommendation. A violation of that rule is not harmless when raised on direct appeal, even though the defendant admits having read the agreement. U.S. v. Kennell, 15 F.3d 134 (9th Cir. 1994).
In U.S. v. Corbitt, 996 F.2d 1132 (11th Cir. 1993), the Eleventh Circuit reversed a conviction and remanded to a different district court judge based on a guilty plea that followed the district court’s comment that he gives defendants fair trials, and, if convicted, fair sentences, although “fairly high.” The court found these comments violated Fed.R.Crim.P. 11(e)(1), which prohibits district courts from participating in plea negotiations.
In Suveges v. U.S., 7 F.3d 6 (1st Cir. 1993), the court reversed the denial of a 2255 motion and remanded for a further hearing to determine whether the defendant’s attorney was ineffective when the attorney failed to object to and then to appeal the district court’s imposition of an enhanced punishment for repeat offenders under 21 U.S.C. §841(b), even though the government had not filed the notice (called an “information”) required by 21 U.S.C. §851.
In a similar case, the Eighth Circuit took the bolder action of reversing outright the denial of 2255 relief and remanding for imposition of a sentence without the repeat offender enhancement. The court found the error could be remedied by 2255 both because the defendant’s counsel had been ineffective in waiving and then not appealing the enhanced sentence, as well as because “2255 expressly makes relief available if Œthe sentence was in excess of the maximum authorized by law.¹” Neary v. U.S., 998 F.2d 563, 566 (8th Cir. 1993) (emphasis added).
The Ninth Circuit has ruled unconstitutional the provision in 21 U.S.C. §851 barring defendants from challenging the validity of convictions that occurred more than five years before the date the government files the “information,” which triggers enhanced sentences based on prior convictions. U.S. v. Davis, __F.3d__, 1994 WL 59792 (9th Cir. 1994). This result may be affected by Custis v. U.S., cert. granted, 62 U.S.L.W. 3272 (1993) (argued Feb. 28, 1994), now pending and awaiting decision in the Supreme Court on the question whether the defendant may challenge the constitutional validity of priors used to invoke the Armed Career Criminal Act.
Amounts of controlled substances under negotiation with a government agent may not be considered in assessing whether a mandatory minimum sentence applies. Only quantities that the defendant actually possessed or conspired to possess with the intent to distribute may be considered. U.S. v. Mergerson, 995 F.2d 1285 (5th Cir. 1993).
In U.S. v. Garcia—Emmanuel, 14 F.3d 1469 (10th Cir. 1994), the Tenth Circuit held that proof of a defendant¹s use of the proceeds of a crime to purchase cashier¹s checks in his own name and his subsequent use of those checks to purchase land, horses, and vehicles (things of immediate resale value that also provided him with immediate present enjoyment), was insufficient to support a conviction on money laundering counts. Noting that money laundering, not money spending, was the crime, the Court of Appeals held that to sustain a conviction, the government must prove that the transactions in question were designed to create the appearance of legitimate wealth. Since the defendant in this case listed himself as the source of the funds for the cashier’s checks, the evidence in this case was insufficient.
On direct appeal, the Ninth Circuit has held that the fact that, while counsel made legal objections to the PSI, this did not necessarily prove that the attorney had discussed the PSI with the defendant. The court, therefore, remanded the case for resentencing where the district court had not determined, as required by Fed.R.Crim.P. 32(a)(1)(A), that the defendant had read and discussed the PSI with counsel. U.S. v. Sustaita, 1 F.3d 950 (9th Cir. 1993). It is erroneous for a PSI to include information that the government learned through a grant of immunity. Whether the error is prejudicial depends on whether it affects a defendant’s sentence. U.S. v. Abanatha, 999 F.2d 1246 (8th Cir. 1993).
The Supreme Court has just held in U.S. v. Granderson, __U.S.__, 1994 WL 87454 (1994), that, where probation is revoked because a probationer possessed a controlled substance, 18 U.S.C. §3565(a) requires the district court to impose a sentence of at least one—third the top of the guideline range determined at the original sentencing, rather than one—third of the term of probation, as argued by the government. This decision is good news for defendants, since one third of the top of the guideline range will normally be shorter than one—third the term of probation, and never any longer. U.S.S.G. §5B1.2 (authorizing terms of probation up to five years). Unless there are grounds for departure, a district court is not empowered to impose a term of probation unless the top of the guideline range is 12 months or less (U.S.S.G. §5B1.1(a)). Granderson also continues the Supreme Court¹s recent revival of the “rule of lenity” as a tool for construing federal laws defining crimes and sentences, with ambiguities resolved in favor of the defendant.
The Second Circuit has held that a steerer or facilitator of drug sales can receive a minor role adjustment under U.S.S.G. §3B1.2. The issue is not whether a defendant played an important role in the offense (such as facilitating drug sales), but, rather, how the defendant¹s culpability compared to that of other participants. U.S. v. LaValley, 999 F.2d 663 (2d Cir. 1993).
The Ninth Circuit has held that a defendant convicted of a “sole participant” offense, such as possession of a controlled substance with intent to distribute, may be eligible for a minor or minimal role adjustment. The issue depends on the presence of other participants in the offense conduct (such as where the defendant was part of an uncharged conspiracy) and the defendant’s culpability, relative to others involved. U.S. v. Demers, 13 F.3d 1381 (9th Cir. 1994).
The Sixth Circuit has joined all circuits but the Eighth to hold that, while district courts may require defendants who violate terms of supervised release to be reincarcerated for the term of the originally imposed supervised release, 18 U.S.C. §3583(e)(3), they may not impose a new period of supervised release. U.S. v. Truss, 4 F.3d 437 (6th Cir. 1993).
Many practitioners are still unaware that if a federal criminal defendant has been serving a pre—existing valid federal or state sentence, the Bureau of Prisons will generally not credit any of this time towards the new federal sentence. Rather, the inmate’s new federal sentence, if it is concurrent, will begin to run as of the date of the new sentencing. There are exceptions to this rule, but they are highly complex and require a close reading of applicable U.S. Bureau of Prisons regulations on the subject. Similarly, a district court does not have the authority to order credit for time served. U.S. v. Wilson, 503 U.S. ___, 112 S.Ct. 1351 (1992).
On a related matter, the question often arises whether a defendant will be given credit towards time served for time spent in a community correctional center (CCC) or even under home confinement or other restrictive conditions of bond such as “official detention.” In a pre—guideline case, the Ninth Circuit held that halfway house confinement, as a condition of bond, is to be credited. Brown v. Rison, 895 F.2d 533 (9th Cir. 1990). The Bureau of Prisons has interpreted Brown v. Rison to apply to all defendants sentenced “within the Ninth Circuit,” but has refused to apply it to prisoners sentenced outside the circuit who are serving sentences within the jurisdiction of the court. Outside the Ninth Circuit, such credit can only be obtained by winning a habeas corpus lawsuit.
No court has determined that pre—trial release to home confinement, with or without electronic monitoring, constitutes “official detention.” Similarly, no court has concluded that time spent on pre—trial release with restrictive conditions should be credited.
Regardless of the availability of credit for anything other than pre—trial detention in a jail—type facility, however, the court should have the defendant’s custody history available for other possible uses. As the First Circuit noted in United States v. Zackular, 945 F.2d 423 (1st Cir. 1991), the court may consider time spent under restrictive conditions of pre—trial release to determine where, within the appropriate guideline range, to set a defendant’s sentence.
A study commissioned by the Department of Justice provides support for arguments against long sentences for “low—level” drug law violators. The study found that a substantial number of drug offenders currently in federal prisons can be classified as “low—level” and that two—thirds of them have received mandatory minimum sentences (the average length of which is 81.4 months). The report concludes that shorter sentences would be equally effective in deterring such individuals from future criminal behavior.


Under New York Law, the crime of assault has varying degrees. At the simplest level, Assault in the Third Degree (New York Penal Law § 120.00) is defined as when an individual intentionally causes injury to another person, such as when one person punches another in the face. There are two parts to this crime; the intent to cause injury to another and the injury sustained. In these cases, the burden falls on the prosecutor to prove beyond a reasonable doubt both elements of assault. So for example, if the person throwing the punch intends to cause harm and throws a punch, but no injury is actually caused, this would not be a completed assault but rather an attempted assault. In addition, generally in cases where assault is charged, a person is at risk of being charged with a bunch of other misdemeanor crimes as well including Menacing in the Second and Third degrees, NYPL § 120.14 and NYPL § 120. 15 and Harassment in the Second Degree, NYPL § 240.26. If an individual is convicted of some or all of these misdemeanor crimes they could be facing up to a year or potentially more in prison.
There are two possible ways to be charged with Assault in the Second Degree (New York Penal Law § 120.05): to intentionally injure another by using of a dangerous instrument or deadly weapon, or to intentionally cause serious physical injury to another person. For example if a person strikes another with a baseball bat or a beer bottle, that would be Assault in the Second Degree. Alternatively, if a person wanted to beat another badly and caused them serious injuries but did not use any weapons, that would also be Assault in the Second Degree. Serious physical injury is any physical injury where there is a risk of death, or an injury resulting in disfigurement or the loss of any bodily limb or organ.
Finally, Assault in the First Degree (New York Penal Law § 120.10) can be satisfied when a person intentionally causes serious physical injury to another by using a deadly weapon or dangerous instrument. Assault in the First Degree is charged in shooting or stabbing cases with serious injuries. If the injuries sustained are not serious, Assault in the Second Degree applies. Assault in the Second Degree is a class D felony and is punishable by up to seven years in prison. Assault in the First Degree is a class B felony and is punishable on par with charges like Attempted Murder, with potential jail sentences of up to 25 years upon conviction.
In circumstances such as a bar fight, where one person is punched or a shoving match breaks out, it is often easy to prove intent because what precipitates the physical fight is an escalating verbal dispute that very well may include threats. However, many times when assault is charged, the only actual injury caused is to the victim's ego. Whether it be a scorned lover, a former business colleague, a jealous friend or a disgruntled neighbor, words can often be taken out of context and injuries can be exaggerated or fabricated. Prosecutors are likely to take their complainant's words at face value and may look the other way at a "victim's" personal motivation or gain in alleging criminal activity against a defendant.
It is important to hire an attorney who will closely examine all the evidence and look for any biases or motives a witness may have to "fake" an injury. The New York Assault attorneys at the Law Offices of Jeffrey Lichtman are experienced in reviewing medical records to ensure that all complaints of injuries are legitimate and backed up by medical support. If we detect any hint of personal biases or gain from a prosecution witnesses, we will expose that motive through skillful and rigorous cross-examination.
The best New York, New Jersey and Connecticut criminal defense lawyers understand there are many ways to attack an Assault charge. At the Law Offices of Jeffrey Lichtman, the attorneys look at a case from every angle to ensure the best possible defense and result. Call today for a consultation on your case.


Congressional staff heard differing views about the Supreme Court's likely approach to cy pres next term in Frank v. Gaos. CCL President Robert S. Peck suggested that the Supreme Court is likely to take a very narrow view of the issue, based on the facts in the case. Peck presented, along with Adam Schulman, a lawyer with the group headed by Petition Ted Frank, who brought the challenge. The event was sponsored by the Congressional Civil Justice Academy, a part of the Law and Economics Center at the Antonin Scalia Law School at George Mason University.
In Frank, the Ninth Circuit upheld a class action settlement that grew out of the information that Google acquired, used and distributed when Internet surfers use that search engine. Though the damage suffered by uninformed surfers was difficult to monetize and the case itself was three times challenged with motions to dismiss, a mediator suggested the settlement that both sides accepted. As part of the settlement, Google agreed to provide a permanent disclosure of what information it collects and how it uses it. In addition, Google agreed to pay compensatory damages of $8.5 million. After attorney fees, costs, and incentive compensation for the named class representatives, the court was left with $5.3 million to be distributed to 129 million class members, an average of 4.1 cents apiece. The court determined that distribution was infeasible given that a process for proof of claim and the process of sending checks would cost substantially more than the four cents each claimant was owed. Instead, the court entertained proposals for non-profit organizations that work in the area of Internet privacy as alternate recipients.
The organizations suggested provided the court with proposals about how the money would be spent to advance Internet privacy. After a seven-month process of examination, the court approved each of the organizations as highly qualified, even though it lamented that the groups were the "usual suspects" on this subject. Objector Frank proposed an alternative approach that would compensate only some members of the class at a $5 or $10 rate given the low claiming rate that might be accepted. While the Ninth Circuit held that that approach would have been acceptable, it found nothing wrong with the use of cy pres to send the money to the organizations, utilizing the deferential abuse of discretion standard of reviewing the trial court.
The Supreme Court will consider whether the approach approved by the Ninth Circuit comported with Rule 23's requirement that class action settlements be fair, reasonable and adequate.
As part of a team of plaintiffs' lawyers, CCL participated in the writing and filing of briefs representing a proposed class of minority residents who were stopped-and-frisked by Chicago police without probable cause. The City of Chicago challenged class certification of the class, as well as the expert evidence in support of certification. Two briefs responded to Chicago's objections.
On September 29, CCL filed an amicus brief for the American Association for Justice, once again asking the U.S. Supreme Court to dismiss the petition in a case involving the Article III standing requirements in federal class actions. Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146.
Plaintiffs in this case are hourly workers at a Tyson pork processing facility in Iowa. Employees were paid from the time the first piece of work arrived at their workstation until the last piece was finished. They were also paid four additional minutes to compensate for time donning and doffing required protective or sanitary equipment or clothing. Plaintiffs brought a class action alleging that donning/doffing activities constituted compensable work under the Fair Labor Standards Act for which they were not fully compensated. Plaintiffs’ expert testified, based on observations of a sample of workers, that workers in two areas of the plant spent an average of 21 minutes and 18 minutes performing these activities. Another expert calculated the amount of overtime pay owed to the class if Tyson had properly credited the workers with donning/doffing time. The expert noted that 212 members of the class would not have been eligible for additional overtime, even if properly credited with donning/doffing time. The jury returned an aggregate verdict in favor of the class. The Eighth Circuit Court of Appeals affirmed.
In an amicus brief prepared by CCL Senior Counsel Jeffrey R. White, AAJ submitted that this question is not properly presented in this case. The complaint alleged that all members of the class were undercompensated due to the pay system used by Tyson. The fact that the class subsequently limited the relief sought does not retroactively deprive the 212 ineligible workers of Article III standing. Moreover, the record reflects that plaintiffs’ expert removed those 212 workers from her calculations of the class damages; they did not contribute to the amount claimed by the class. Finally, Tyson lacks standing to challenge the allocation of an aggregate award among class members that will not affect the amount of Tyson’s liability. If the Court reaches the merits, AAJ argued, it should affirm the general rule followed by federal courts that allegations of concrete injury by the named plaintiff in a class action is sufficient to establish standing under Article III.
The City of Oakland, California filed a federal lawsuit against Wells Fargo Bank to recover damages caused by the bank’s predatory and discriminatory lending practices within the city.
The lawsuit charges Wells Fargo with targeting minority borrowers with predatory mortgage loan terms in violation of the federal Fair Housing Act and California’s Fair Employment and Housing Act.
The lawsuit asks the Court to order Wells Fargo to cease its discriminatory practices and compensate the City of Oakland for financial harm that the foreclosure crisis caused the city. In addition to losing millions in tax revenues, which necessitated police layoffs and other cuts in city services, the bank’s predatory practices saddled the city and its taxpayers with massive costs in addressing blight, vandalism and crime associated with foreclosed properties.
Thousands of homes went into foreclosure and remain in poor condition costing cities significant sums of money due to the loss of property taxes and increased out-of-pocket expenditures to remedy the resulting blight throughout minority communities.
City Attorney Parker filed the lawsuit in federal court with outside counsel that includes CCL President Robert S. Peck, Dean Erwin Chemerinsky of the University of California at Irvine School of Law, Yosef Peretz of Peretz & Associates, and Joel Liberson of Trial & Appellate Resources.
The U.S. Department of Justice and the cities of Los Angeles, Miami and Miami Gardens previously filed similar lawsuits against various banks. CCL is part of the legal team in the other municipal lawsuits.
In an amended complaint filed in federal court in Florida, the City of Miami Gardens renewed its allegations that Wells Fargo Bank violated the federal Fair Housing Act (FHA) by steering minority applicants to more expensive loans than they otherwise qualified for, resulting in a blight of foreclosures and costs to the city. CCL is part of the city’s legal team in litigating the matter.
The case, originally filed more than a year ago, was stayed by U.S. District Court Judge Federico Moreno, while similar cases brought by the City of Miami was heard by the U.S. Court of Appeals for the Eleventh Circuit. Earlier this month, that court revived Miami’s lawsuits against Wells Fargo, as well as Bank of America and Citigroup, which had been dismissed by another district court judge, largely on grounds that the city lacked standing to prosecute FHA claims. CCL President Robert S. Peck argued the three successful appeals on behalf of Miami.
Miami Gardens’ new complaint also incorporates guidance received in June from the U.S. Supreme Court on the requirements for claims based on disparate impact under the FHA.
On August 6, 2015, the U.S. Court of Appeals for the Ninth Circuit held that, to qualify as a “mass action” under the Class Action Fairness Act, making an action filed in state court eligible for removal to federal court, a plaintiff must affirmatively propose a joint trial with other similar cases. In Briggs v. Merck Sharp & Dohme, the appellate court unanimously reversed a trial-level decision that had found federal jurisdiction under CAFA over five separate suits originally filed in California state courts. The Ninth Circuit decision adopted in toto the positions advocated by CCL Chief Litigation Counsel Louis Bograd in support of plaintiffs. The Court first agreed with plaintiffs on a threshold jurisdictional question, holding that a petition for leave to appeal filed within 10 days of the denial of a motion for reconsideration is timely. Turning to the merits, the Court of Appeals ruled that a “proposal” for joint trial under CAFA must be made to a court with the authority to effect the relief requested and, therefore, statements made in federal court cannot constitute such a “proposal.” The panel also ruled that a plaintiff who files a coordination petition that specifically says it is not for a joint trial does not trigger CAFA. Finally, the court ruled that a proposal for bellwether trials in a state mass tort proceeding is not a proposal for joint trials. The Briggs ruling provides clear guidance for plaintiffs who wish to keep their mass tort cases in state court. CCL’s co-counsel in this appeal included Ryan Thompson of Watts Guerra LLP, Hunter Shkolnik of Napoli Bern Ripa Shkolnik LLP, and John Restaino of Restaino Siled LLD.
In a reply brief filed October 3, CCL told the Indiana Court of Appeals that the State’s brief misunderstands the issue raised in CCL’s challenge to the aggregate cap in the state’s Tort Claims Act. The State’s brief defended the right of the State to limit its damages on both a per-individual and per-occurrence basis, even if that results in different limits for similarly injured persons. CCL’s opening brief argued that the differential treatment of claimants constituted a violation of the state constitution’s Equal Privileges and Immunities Clause.
The case arises from the stage collapse at the 2009 Indiana State Fair after a tornado suddenly appeared as crowds were gathered for an evening concert. Seven people were killed, and another 58 were injured in the incident. The Tort Claims Act limits the State’s liability to $700,000 per person and $5 million per incident. Because of the large number of people injured, the State attempted to settle claims by distributing the $5 million aggregate cap on a pro rata basis, after allocating $350,000 to every wrongful death claim. Plaintiff Jordyn Polet, who was offered about $1,600 on a claim estimated to be worth $100,000, was the only claimant who refused the settlement offer. Her offer was then redistributed among the settling claimants, who later received another $6 million appropriated by the legislature after it determined the original $5 million was insufficient. When Polet sought to sue under the Tort Claims Act, the State asserted an affirmative defense, claiming that she lost her cause of action when she refused the settlement offer and that the overall $5 million cap means that the State has expended its entire responsibility, foreclosing further claims.
In reply, CCL argues that Polet has an accrued, valid cause of action because the Tort Claims Act unequivocally waived the State’s immunity and that a rejected settlement offer cannot divest her of that claim. Citing the state constitution’s Open Courts provision, the brief indicates that her interest in making a claim vested at the time of the injury and could not be alienated from her by the State’s attempts to settle the case. In response to the State’s claim that its interest in protecting the public fisc overrode all other considerations, CCL’s brief pointed out that this would give the State plenary authority to set up its tort claims act caps any way it wants, including on a first come, first served basis. Thus, the CCL brief points out, if the day before the present tragedy at the State Fair, only five people were injured when the same stage collapsed and were thus eligible for up to $700,000 in compensation each, the State was free to settle with six of them for $200,000 apiece, and a lone claimant who refused that settlement would still have a cause of action to prove liability and damages above the $200,000 offer because the aggregate cap would not kick in. However, if the stage collapses again the following day after a failure to remedy the previous day’s problem, rendering the negligence more egregious, and 65 more people are injured this time, it is the State’s position that they are free to offer each an even pro rata settlement of less than $77,000 each, redistribute the leftover $77,000 to those willing to settle, and leave the single claimant who refused the settlement without any recourse, solely because the aggregate cap now applies and changes everything. CCL contends that such an approach is inconsistent with the Equal Privileges right.
CCL’s Robert S. Peck is counsel for Polet, along with Anthony Patterson of Indianapolis. A date for oral argument has not yet been set.
In Public Employees’ Retirement System of Mississippi v. IndyMac MBS Inc., No. 13-640, the U.S. Supreme Court will consider whether the filing of a putative class action serves, under the “American Pipe” rule, to satisfy the three-year time limitation in § 13 of the Securities Act of 1933 with respect to class claims.
An amicus curiae brief written by CCL’s Andre M. Mura and Kathryn S. Minton, and filed on behalf of the American Association for Justice (AAJ) in this case, argues that disallowing American Pipe tolling in the securities context would contravene Congress’s intent and cause uncertainty and confusion in future class action litigation that the Court sought to avoid in American Pipe. In American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), the Court held that commencement of a class action filed pursuant to a federal statute suspended the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been certified. The Court found that tolling was appropriate because it was consonant with the policies animating Rule 23, the applicable limitations statute, and the federal legislative scheme. The decision sought to protect federal procedural interests by preventing duplicative litigation from purported class members during the pendency of class certification.
The CCL brief retraces the analytical path the Court followed in American Pipe to show that the Court need only apply that same logic and reasoning to find American Pipe tolling available here. It argues not allowing tolling would result in a multiplicity of needless protective filings, frustrating the aims of Rule 23 and the Private Securities Litigation Reform Act of 1995 (PSLRA). The brief argues that Congress, therefore, would not have wanted to bar tolling, especially when the outcome would not advance any purpose underlying the Act’s three-year limitation period.
Lastly, the brief cautions against focusing on labelling tolling “legal” or “equitable” and encourages the Court to follow its longstanding approach to determining if tolling is available: by evaluating whether tolling is in accordance with the legislative scheme.
CCL’s Louis M. Bograd and Andre M. Mura have completed briefing for appeals pending before the en banc U.S. Court of Appeals for the Ninth Circuit, on behalf of plaintiffs injured by propoxyphene-containing pain products. Corber v. Xanodyne Pharm., Inc., No. 13-56306; Romo v. Teva Pharm. USA, Inc., No. 13-56310. These plaintiffs filed separate suits for damages in California state court, and then counsel filed a petition for coordination under California Code of Civil Procedure (“CCP”) 404. The defendants then immediately removed the suits to federal court, based on a provision of the Class Action Fairness Act which authorizes removal of “mass actions.” Plaintiffs requested that the federal district court remand the cases to state court, because these suits did not qualify for removal under CAFA. To qualify as a removable mass action under CAFA, Plaintiffs explained, 100 or more plaintiffs must propose that their cases be tried jointly. The district court and a divided panel of the Ninth Circuit agreed with Plaintiffs that removal was not proper because the plaintiffs had not proposed that their cases be tried jointly, and thus ordered the cases remanded to state court. The Ninth Circuit then agreed to consider this issue en banc.
Plaintiffs argued in supplemental briefing filed yesterday that the filing of a petition for coordination under CCP 404 is not, by itself, a proposal that Plaintiffs’ claims be tried jointly within the meaning of CAFA. In addition, Plaintiffs argued that none of their written submissions requested a joint trial. Lastly, Plaintiffs explained that the Supreme Court’s recent decision in Mississippi ex rel. Hood v. AU Optronics Corp., 134 S. Ct. 736 (2014), dispels any doubt that remand is warranted here. For these reasons, Plaintiffs urged the en banc Ninth Circuit to affirm the district court’s remand order.
The en banc Ninth Circuit is scheduled to hear oral argument in June.


text:
•SB [V] v. Fitch 4:00 p.m.
•G LAX [FR] v. Trumbull 4:30 p.m.
•B VB [JV] @ St. Joseph 5:15 p.m.
•MISC Career Fair 6:30 p.m.
•B OTCK [V] v. Cheshire, Hamden 3:45 p.m.
•G LAX [V] v. North Haven 3:45 p.m.
•G LAX [JV] v. North Haven 5:30 p.m.
•G OTCK [V] @ Cheshire, Hamden 3:45 p.m.
•B LAX [FR] @ Daniel Hand 4:00 p.m.
•SB [V] @ North Haven 4:00 p.m.
•SB [JV] @ North Haven 4:00 p.m.
•B GLF [V] v. Hamden 2:45 p.m.
•G LAX [JV] v. Daniel Hand 5:30 p.m.
•B LAX [V] @ Trumbull 6:00 p.m.
•B LAX [JV] @ Trumbull 4:00 p.m.
•B LAX [FR] @ Cheshire 4:30 p.m.
•G LAX [FR] @ North Haven 4:00 p.m.
•B VB [V] v. Cheshire 5:00 p.m.
•B VB [JV] v. Cheshire 4:00 p.m.
•BASE [V] v. Ridgefield 4:00 p.m.
•BASE [JV] v. Ridgefield 12:00 p.m.
•B LAX [V] @ Pomperaug 4:30 p.m.
•B OTCK [V] Daniel Hand Freshman Invite 9:00 a.m.
•B LAX [JV] @ Pomperaug 2:30 p.m.
•BASE [FR] @ Ridgefield 11:00 a.m.
•B LAX [V] v. Cheshire 4:00 p.m.
•B VB [V] v. Joel Barlow 4:00 p.m.
•B LAX [JV] v. Cheshire 5:30 p.m.
•B VB [JV] v. Joel Barlow 5:30 p.m.
•BASE [V] @ North Haven 3:45 p.m.
•BASE [FR] @ North Haven 3:45 p.m.
•B LAX [FR] @ Xavier 4:00 p.m.
•B GLF [V] v. Fairfield Prep 2:45 p.m.
•G OTCK [V] v. Sheehan, West Haven 3:45 p.m.
•BASE [JV] v. North Haven 3:45 p.m.
•G LAX [V] @ Cheshire 6:00 p.m.
•G LAX [JV] @ Cheshire 4:00 p.m.
•SB [V] v. West Haven 4:00 p.m.
•B OTCK [V] @ Sheehan, West Haven 3:45 p.m.
•B VB [V] @ Shelton 6:00 p.m.
•G GLF [V] @ Plainville 3:00 p.m.
•G LAX [FR] @ Cheshire 4:00 p.m.
•B GLF [V] v. Notre Dame-West Haven 2:45 p.m.
•B TEN [V] v. Cheshire 3:30 p.m.
•SB [JV] v. West Haven 4:00 p.m.
•B LAX [V] @ Fairfield Prep 5:00 p.m.
•B LAX [JV] @ Fairfield Prep 5:30 p.m.
•SB [V] v. Mercy 4:00 p.m.
•G LAX [V] @ Jonathan Law 12:00 p.m.
•G LAX [JV] @ Jonathan Law 1:30 p.m.
•B OTCK [V] v. Branford, Foran, Fairfield Prep 11:00 a.m.
•G LAX [JV] v. Hamden 5:30 p.m.
•SB [JV] v. Foran 5:30 p.m.
•G OTCK [V] @ Branford, Guilford, Lauralton Hall 11:00 a.m.
•G TEN [V] @ Shelton 10:30 a.m.
•B LAX [FR] @ Southington 4:00 p.m.
•B LAX [V] v. Sheehan 3:45 p.m.
•B TEN [V] v. Hall (Scrim.) 2:30 p.m.
•G TEN [V] v. Hamden 11:00 a.m.
•B LAX [JV] v. Sheehan 5:30 p.m.
•BASE [V] @ Foran 3:45 p.m.
•BASE [FR] @ Foran 3:45 p.m.
•SB [JV] v. Seymour 10:00 a.m.
•BASE [V] @ Norwich Free Academy 11:00 a.m.
•B TEN [V] @ Foran 9:00 a.m.
•G LAX [V] @ Southington 3:45 p.m.
•G LAX [JV] @ Southington 5:30 p.m.
•BASE [FR] @ Norwich Free Academy 11:00 a.m.
•B OTCK [V] N.Y. Relays @Icahn Stadium, Randalls Island 9:00 a.m.
•BASE [V] v. Fairfield Prep 3:45 p.m.
•B OTCK [V] @ Lyman Hall 3:45 p.m.
•G LAX [V] @ West Haven 6:30 p.m.
•G OTCK [V] @ Lyman Hall 3:45 p.m.
•SB [V] @ Bristol Eastern 4:00 p.m.
•BASE [JV] @ Fairfield Prep 5:30 p.m.
•G LAX [JV] @ West Haven 5:00 p.m.
•SB [JV] @ Bristol Eastern 4:00 p.m.
•B TEN [V] v. Daniel Hand 3:45 p.m.
•B VB [V] v. Masuk 5:15 p.m.
•SB [V] v. Career Magnet 4:00 p.m.
•SB [JV] v. Career Magnet 4:00 p.m.
•BASE [FR] v. Waterford 4:00 p.m.
•B LAX [FR] v. Daniel Hand 4:00 p.m.
•G LAX [FR] @ Trumbull 4:30 p.m.
•B GLF [V] @ Notre Dame-West Haven 2:45 p.m.
•B LAX [V] @ Hamden 5:00 p.m.
•G GLF [V] @ Mercy 3:00 p.m.
•B LAX [JV] @ Hamden 7:00 p.m.
•G LAX [JV] @ Mercy 5:30 p.m.
•BASE [V] v. Guilford 3:45 p.m.
•G GLF [V] v. St. Paul Catholic 2:45 p.m.
•B LAX [FR] v. Cheshire 4:30 p.m.
•G OTCK [V] O'Grady Relays Day 1 5:00 p.m.
•SB [V] @ Cheshire 4:00 p.m.
•SB [JV] @ Cheshire 4:00 p.m.
•G LAX [FR] @ Hamden 3:45 p.m.
•B LAX [V] v. Brookfield 3:00 p.m.
•G LAX [V] v. Masuk 10:30 a.m.
•B LAX [JV] v. Brookfield 4:30 p.m.
•G LAX [JV] v. Masuk 12:00 p.m.
•BASE [FR] v. Guilford 10:30 a.m.
•SB [FR] v. Jonathan Law 10:30 a.m.
•B OTCK [V] Penn Relays, Philadelphia, PA 9:00 a.m.
•B OTCK [V] O'Grady Invitational 9:00 a.m.
•G OTCK [V] O'Grady Relays Day 2 9:00 a.m.
•SB [V] @ Glastonbury 10:00 a.m.
•G TEN [V] @ Sheehan 11:00 a.m.
•BASE [JV] @ Guilford 10:30 a.m.
•SB [JV] @ Glastonbury 10:00 a.m.
•B LAX [V] v. Lyman Hall 3:45 p.m.
•B LAX [JV] v. Lyman Hall 5:30 p.m.
•BASE [FR] @ Sheehan 3:45 p.m.
•G GLF [V] v. Mercy 3:30 p.m.
•G LAX [V] v. Sheehan 3:45 p.m.
•G OTCK [V] v. Shelton, Hillhouse 3:45 p.m.
•G LAX [JV] v. Sheehan 5:30 p.m.
•B LAX [FR] v. East Lyme 4:30 p.m.
•B OTCK [V] @ Shelton, Hillhouse 3:45 p.m.
•MISC Unified Michaels Cup 4:30 p.m.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


ROXANNE CORINNE PERDIGONE, Petitioner - Appellant, v. RON DAVIS, Respondent - Appellee.
California state prisoner Roxanne Corinne Perdigone appeals from the district court's judgment dismissing her 28 U.S.C. § 2254 petition as untimely. We have jurisdiction under 28 U.S.C. § 2253. We review de novo a district court's dismissal of a federal habeas petition on statute of limitations grounds, see Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir. 2006), and we affirm.
Perdigone contends that she is entitled to equitable tolling because of the unavailability of two witnesses and because her incarceration made it difficult for her to complete her investigation until February 9, 2010. Perdigone has not shown that she diligently pursued her rights, or that an extraordinary circumstance beyond her control prevented her from timely filing her habeas petition. See Holland v. Florida, 560 U.S. 631, 649 (2010); Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (per curiam) (petitioner bears the "heavy burden" of showing that she diligently pursued her rights and that an extraordinary circumstance stood in her way).
We construe Perdigone's additional arguments as a motion to expand the certificate of appealability. So construed, the motion is denied. See 9th Cir. R. 22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).


text:
Committed to providing services that are grounded in research,we continually seek opportunities to expand what is known about spirit at work. And, in keeping with our mission to help others find spirit at work, we are enthusiastic about sharing our findings through presentations, conferences, and published articles.
Kinjerski, V. (2013). The Spirit at Work Scale: Developing and Validating a Measure of Individual Spirituality at Work.In J. Neal (Ed.),Handbook of Faith and Spirituality in the Workplace: Emerging Research and Practice, Springer Science + Media: New York. Read the Chapter.
Kinjerski, V. & Skrypnek, B.J.(2008). The Promise of Spirit at Work: Increasing Job Satisfaction and Organizational Commitment and Reducing Turnover and Absenteeism in Long-term Care. Journal of Gerontological Nursing. 43(10), pp. 17-27. Read the article.
Kinjerski, V. & Skrypnek, B.J.(2008). Four Paths to Spirit at Work: Journeys of Personal Meaning, Fulfillment, Well-Being, and Transcendence Through Work. The Career Development Quarterly, 56(4), pp. 319-329. Read the article.
Kinjerski, V. & Skrypnek, B.J. (2006). Creating Organizational Conditions that Foster Spirit at Work. Leadership and Organization Development Journal, 27(4), pp. 280-295. Read the article.
Kinjerski, V. & Skrypnek, B.J. (2006). Measuring the Intangible: Development of the Spirit at Work Scale. In K. Mark Weaver (Ed.), Proceedings of the Sixty-fifth Annual Meeting of the Academy of Management (CD). Read the article.
Kinjerski, V. & Skrypnek, B.J. (2006). A Human Ecological Model of Spirit at Work. Journal of Management, Spirituality, and Religion, 3(3). Read the article.
Kinjerski, V. (2004). Exploring Spirit at Work: The Interconnectedness of Personality, Personal Actions, Organizational Features, and the Paths to Spirit at Work. Unpublished Ph.D. Dissertation, University of Alberta. Edmonton, AB.
Kinjerski, V. & Skrypnek, B.J. (2004). Defining Spirit at Work: Finding Common Ground. Journal of Organizational Change Management, 17(1), pp. 26-42. Read the article.
Kinjerski, V. & Skrypnek, B.J. (2004). Spirit at Work Scale: Scoring and Interpretation Manual. Unpublished Manual.
Kinjerski, V. & Skrypnek, B.J. (2003). Measuring Spirit at Work: Work in Progress. In G. Biberman and A. Alkhafaji (Eds.) Business research yearbook: Global business perspectives, Vol. X, 1015-1019.
"Secret to Workplace Happiness". Edmonton Journal. Proactive. October 12, 2009.
Most Viewed Stories. Research Roundup "The Science of Being Happy: How to be Happy at Work". CBC News. March 5, 2009.
"Stressing the Positives". The Province, Vancouver. December 7, 2008.
"Boost Morale, Lower Absenteeism". Winnipeg Free Press. December 6, 2008.
"You are valuable to us - it is not just lip service". Globe and Mail. Business. December 5, 2008.
"Time to rethink your job". Management-Issues, UK. December 1, 2008.
"More academic wisdom on the workplace". Los Angeles Times. Health. November 28, 2008.
"Worker intervention reduces turnover". United Press International. November 28, 2008.
"Focus on service boosts worker morale". Edmonton Journal. Business. November 27, 2008.
Crossroads Television System (CTS). Top Story. May 22, 2008.
"Breathing new life into your job: Sessions help employees rekindle their passion by seeing their work as an act of service". Edmonton Journal. May 10, 2008.
Good Business. Unity FM. March 27, 2008. Click here to listen to the interview.
"Fostering Good Karma a Touchy Subject". Globe and Mail. Globe Careers. May 24, 2006.
"Ethics at Work Pays Dividends". The Vancouver Sun. September 17, 2005.
Queen's University Industrial Relations Centre Newsletter. 2005.
Department of Human Ecology Website. University of Alberta. Spring 2005.
Spirit at Work: A Pathway to Wellness. The Advocate. Alberta College of Social Workers. Spring 2005.
Student Research Profiles Database. Faculty of Graduate Studies. University of Alberta. February, 2005. "Spirit at Work in the Research of Val Kinjerski."
"Bright Lights". Globe and Mail. Globe Careers. March 5, 2003.
Kinjerski, V. & Skrypnek, B.J. (August, 2006). Measuring the Intangible: Development of the Spirit at Work Scale. The Sixty-fifth Annual Meeting of the Academy of Management. Atlanta, GA.
Kinjerski, V. & Skrypnek, B.J. (May, 2006). Fostering Spirit at Work in Long Term Health Care Staff. Naming and Claiming Spirituality: The Invisible Ingredient in Health and Healing. Vancouver, BC.
Kinjerski, V. & Skrypnek, B.J. (March, 2006). The Spirit at Work Project: Creating Positive Outcomes in Long Term Health Care. Long Term Care Winter Conference. Jasper, AB.
Kinjerski, V. (October, 2005). The Power of Spirit at Work: A Strategy for Workplace Wellness. Vitamin C for Health Promoting Universities, 2nd International Conference Devoted to the Creation & Maintenance of Health Promoting Universities. Edmonton, AB.
Kinjerski, V. (April, 2005). Using an Ecological Model of Spirit at Work to Enhance the Experience at Work. Building Tomorrow Today, 11th Annual Regional Consultation for Career Development. Edmonton, AB.
Kinjerski, V. (April, 2005). Conscious Intention: The Gateway to Spirit at Work and Enhanced Work Experiences. Building Tomorrow Today, 11th Annual Regional Consultation for Career Development.Edmonton, AB.
Kinjerski, V. (January, 2005). The Connection between Transformative Events and Career Development. 2005 National Consultation on Career Development Conference, Ottawa, ON.
Kinjerski, V. & Skrypnek, B. (January, 2004). Measuring Spirit at Work: Validating a Spirit at Work Scale. Paper presented by Val Kinjerski to the 2004 National Consultation on Career Development Conference, Ottawa, ON.
Kinjerski, V. & Skrypnek, B. (June, 2003). Spirit at Work: Integrating Spirituality and Work. Paper presented by Val Kinjerski at The 2nd Annual Conference on Spirituality and Social Work: Spiritual Diversity and Social Justice, Halifax, NS.
Kinjerski, V. & Skrypnek, B. (April, 2003). Measuring Spirit at Work. Paper presented by Val Kinjerski at the 15th Annual International Academy of Business Disciplines Conference, Orlando, FL.
Kinjerski, V. (March, 2003). Spirit at Work. 2003 Annual Conference of the Alberta College of Social Workers, Edmonton, AB.

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