§ 189-5 Changes after issuance unlawful.
§ 189-7 Start of work; expiration of permit.
§ 189-8 Inspections; revocation of permit.
§ 189-11 Violations and penalties.
§ 189-12 Definitions and word usage.
§ 189-18 Backfilling; restoration of surface.
§ 189-19 Restrictions; unsatisfactory work.
§ 189-20 Conduct of work; supervision and approval.
§ 189-21 Notification of work; line adjustments; reopening of pavement.
§ 189-22 Construction of gas and water mains.
§ 189-23 Payment for work done by City.
§ 189-25 Permit requirements; surface coverings; completion and restoration.
§ 189-28 Violations and penalties.
Uniform construction codes— See Ch. 171.
Construction of sidewalks, curbs and gutters — See Ch. 303, Arts. III and IV.


STATE OF TENNESSEE, ET AL., Defendants.
On April 18, 2017, Plaintiff Greg Moody, who is currently incarcerated at the Bledsoe County Correctional Complex in Pikeville, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983 accompanied by a motion to proceed in forma pauperis. (ECF Nos. 1 & 4.) In an order issued April 21, 2017, the Court granted leave to proceed in forma pauperis and assessed the civil filing fee pursuant to the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 5.) Moody's complaint concerns events occurring during his previous incarceration at the Dyer County Jail (Jail) in Dyersburg, Tennessee. The Clerk shall record the Defendants as the State of Tennessee, Sheriff Jeff Box, Dyer County,  Administrator Alan Bargery, Nurse Practioner Sherry Heathcott, and Paul Forrester.
On May 18, 2017, Moody filed a motion for appointment of counsel. (ECF No. 6.) Pursuant to 28 U.S.C. § 1915(e)(1), the “court may request an attorney to represent any person unable to afford counsel.” However, “[t]he appointment of counsel in a civil proceeding is not a constitutional right.” Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003); see also Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (“[T]he plaintiffs were not entitled to have counsel appointed because this is a civil lawsuit.”); Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993) (no constitutional right to counsel in a civil case); Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993) (“There is no constitutional or . . . statutory right to counsel in federal civil cases . . . .”). Appointment of counsel is “a privilege that is justified only by exceptional circumstances.” Lavado, 992 F.2d at 606 (internal quotation marks and citation omitted). “In determining whether ‘exceptional circumstances' exist, courts have examined the type of case and the abilities of the plaintiff to represent himself. This generally involves a determination of the complexity of the factual and legal issues involved.” Id. at 606 (internal quotation marks and citations omitted). Appointment of counsel is not appropriate when a pro se litigant's claims are frivolous or when his chances of success are extremely slim. Id. (citing Mars v. Hanberry, 752 F.2d 254, 256 (6th Cir. 1985)); see also Cleary v. Mukasey, 307 F. App'x 963, 965 (6th Cir. 2009) (same).
At this stage of the proceeding, because the complaint is being dismissed with leave to amend, Plaintiff has not satisfied his burden of demonstrating that the Court should exercise its discretion to appoint counsel. Therefore, the motion for appointment of counsel is DENIED.
Moody's complaint merely provides a list of rights that he claims were denied by the Defendants: denial of medical treatment; denial of legal materials and access to the courts; denial of equal treatment and rights enjoyed by other prisoners; denial of outside recreation; denial of access to books and reading materials, including religious, legal and scholastic; denial of sentence credits and “gain time” for trustee work that was given to other inmates; and denial of items such as a back brace, neck brace, and pillow that are necessary because of injuries he previously suffered. (ECF No. 1 at 4, 7.) Moody states that he was involved in an accident in 2011 that caused severe injuries and brain trauma; as a result, he has serious memory problems. (Id. at 7.) However, he states the “facts will be shown by records and lack of records, ” (id. at 8), and that he relies on the courts and the law to see that gross errors and judgments violated his civil rights (id.).


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For the first time since 1973, the U.S. Supreme Court has retreated from its decisions legalizing abortion on demand, primarily Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v Casey, 505 U.S. 833 (1992). The decision, Gonzales v. Carhart, raises many questions and contemplations. Time will answer these, but as we continue the process of determining abortion rights in America, where are we exactly?
The immediate issues that come to mind are whether this is the beginning of the end of a right to abortion, how does this effect Alabama's laws, and what are the political ramifications? In short, it is a small step in the right direction which does not immediately effect any existing Alabama laws or laws proposed to regulate abortion in any state, but it has significant political ramifications for the 2008 presidential election.
". . . baby's little fingers were clasping and unclasping, and his little feet were jerking. Then the doctor stuck the scissors in the back of his head, and the baby's arms jerked out, like a startled reaction, like a flinch, like a baby does when he thinks he is going to fall. The doctor pulled up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby's brains out. Now the baby went completely limp . . . . He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used."
This type of procedure was first prohibited by Congress in a similar law which resulted in the Court's decision in Stenberg v. Carhart, 530 U.S. 914 (2000), holding it unconstitutional because there is no health of the mother exception. Following this, Congress made extensive findings that there is no medical need for a health exception and again passed a statute which resulted in this recent court decision. The health exception referred to is universally understood to be a loophole allowing the abortion doctor virtually any excuse to perform an abortion. Such an exception renders any law useless.
1. There must be a vaginal delivery of a living child.
2. Either the head or the trunk must be fully delivered.
3. The abortionist must by an overt act kill the partially born child.
4. The abortionist must have intentionally done the foregoing.
Another important consideration of this decision is the type of review by the court. There are two types, "facial" and "as applied." Under a facial challenge, a law has not gone into effect and the plaintiff must prove that a law is vague and people of ordinary intelligence do not know what is prohibited or that its application is too broad. In this case it would mean the abortion doctor does not know what is prohibited or that he would not be able to perform the necessary procedure. This may unconstitutionally burden the woman's choice.
As noted, the medical health omission was central to the abortionists' arguments. The Court found the medical evidence uncertain and that state and federal legislators have wide discretion to pass legislation in areas of medical and scientific uncertainty. The Court concluded no health exception was necessary under the "facial" challenge before the Court. That is, on its face, without application or the law ever being put into use, it does not place a burden on the woman's right to choose. There is no evidence that her health would be adversely effected.
However, the Court also said that an "as applied" challenge can be brought at a later time, that if in practice medical evidence shows it does not protect the woman's health, then the statute would be unconstitutional. An as applied challenge is a possibility and, perhaps, even a probability. We are all familiar with federal courts' propensity to strike down abortion laws. This means there is still a very real chance this law will be struck down in a later case.
The Court made a distinction essentially based on there "almost" being a life of the baby. Although the Court said the state has an interest in protecting "the life of a fetus that may become a child," it was also reasonable for Congress to be concerned that partial-birth abortion procedure "undermines the public's perception of the appropriate role of a physician during the delivery process, and perverts a process during which life is brought into the world." Whether we blame Justice Kennedy or Congress, it is as if it is okay to cut the baby up first, rather than deliver it whole.
As noted, the step was very small. It is significant in that it is the first step away from the abortion right, but it is only important if a subsequent step is taken. During the 1990's when there were multiple states' efforts to pass partial-birth abortion laws, there was a recognition that it would probably not prohibit many abortions, though it would certainly put a dent in the baby body parts trade (virtually whole delivered unborn children are more valuable to both private and public research entities), but that it would be significant in the education of the public on the humanity of the unborn child. It has, no doubt, served that purpose and even the Court recognized that "the state has an interest in advancing the dialogue of the political and legal systems, the medical profession, mothers and society on the consequences of the abortion decision." We certainly hope there will be another step to advance that dialogue to someday end the right to abortion. For these reasons, we must be encouraged.
One of the questions is whether this would effect Alabama's law. We passed the Alabama Partial-Abortion Ban Act of 1997, Section 26-23-1, et sequel, 1975 Code of Alabama. It did not have a health exception. A lawsuit was filed which resulted in a finding, based on the Stenberg case, that it was unconstitutional. Summit Medical Associates PC v. Siegelman, 130 F.Supp.2d 1307 (M.D. Ala., 2001). It is not possible to go back and undo that court decision on that particular statute, but in any case, that statute would still not cut constitutional muster under this recent decision. It does not have the same exacting definition of a partial-birth abortion that would permit it to be recognized as the specific sole procedure. Also, there is no scienter requirement, that is, the statute did not require proof that the abortion doctor intended to take the baby's life by this particular abortion process.
Additionally, there are no present Alabama legislative bills being considered which would have any constitutional success as a result of this decision. Any such bill must be carefully prepared to anticipate a constitutional challenge. That raises the last obvious question and that is what are the political ramifications of the decision.
Gonzales v. Carhart was a 5-4 decision. Justice Kennedy wrote the opinion for the Court. Justice Kennedy has fully supported the right to abortion. He was, however, joined by pro-life Justices Thomas and Scalia, and the two new Justices, Chief Justice Roberts and Justice Alito. While Justice Kennedy used some very "pro-life" sounding terms in his opinion, he made it clear that the Court "assume[s] the following principles for the purposes of this opinion. Before viability, a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy." Before Thomas and Scalia could join in the opinion, they wanted to be clear they were only supporting upholding the law and said through Thomas, "I write separately to reiterate my view that the Court's abortion jurisprudence, including Casey and Roe, has no basis in the Constitution."
It is also notable that although Roberts and Alito joined the majority opinion, they did not join Thomas' concurrence. Perhaps, they did not want to show their hands so early after their confirmation, where numerous questions were asked about this issue. That can, at least, be our hope.
Justice Ginsberg wrote a dissenting opinion which was joined by Justices Stevens, Souter and Breyer. They stood firmly on the abortion right court decisions.
The reality of this is that we still remain one vote short of correcting the horrible mistake in American jurisprudence which has allowed the so-called constitutional right to an abortion. George Bush does not have the political strength to get another conservative Justice confirmed. The problems in his administration and the Democrat controlled Senate substantially weaken him. If an opening comes while he is president, we must be concerned he does not put another weak vote on the court, such as Kennedy is or O'Conner was, notwithstanding they were to have been pro-life.
This makes the 2008 presidential elections more important than any in many terms. This election is also particularly interesting because while, of course, every Democrat contender recognizes the right to abortion, two of the three top-tier GOP candidates are pro-choice and the third's position is suspect. The obvious prediction would be from all those who we know to be electable today, none will probably put the fifth pro-life vote on the U.S. Supreme Court. There are a number of second tier GOP candidates who are pro-life.
Abortion organizations were horrified at the decision and many pro-life organizations were ecstatic. One must be careful in assessing response from such persons. They are, most likely, in a fundraising mode. The real assessment of the case must be that it reinforces some principles that have been expressed in the Roe and Casey decisions about the state having some interest in protecting life, but it does not step away from the constitutional right to abortion. The statements in Gonzales v. Carhart are not strong enough and do not go far enough. We must be encouraged, however, because the educational part of this process has helped more Americans recognize the personhood of the unborn child.

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1. Even though the legal issue raised in a prior direct appeal from petitioner's conviction was determined against petitioner, he is not precluded from raising the issue in a 2255 proceeding "if new law has been made . . . since the trial and appeal." Kaufman v. United States, 394 U.S. 217, 230 . Pp. 341-342.
2. The fact that petitioner's claim is grounded "in the laws of the United States" rather than in the Constitution does not [417 U.S. 333, 334] preclude its assertion in a 2255 proceeding, particularly since 2255 permits a federal prisoner to assert a claim that his confinement is "in violation of the Constitution or laws of the United States." Sunal v. Large, 332 U.S. 174 , distinguished. Pp. 342-346.
3. The issue that petitioner raises is cognizable in a 2255 proceeding. Pp. 346-347.
472 F.2d 596, reversed and remanded.
STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and DOUGLAS, BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. POWELL, J., filed an opinion concurring in part and dissenting in part, post, p. 347. REHNQUIST, J., filed a dissenting opinion, post, p. 350.
In February 1965, the petitioner, Joseph Anthony Davis, was classified I-A by his draft board and ordered to report for a pre-induction physical examination. Davis failed to appear on the appointed date. He later informed his local board that his failure to report was due to illness. Although the board attempted to arrange [417 U.S. 333, 335] a second date for the pre-induction physical, its attempts to communicate with the petitioner were frustrated by his failure to keep the board apprised of his correct mailing addresses. As a result, the local board's communications to the petitioner were returned to the board stamped "addressee unknown," and Davis again failed to report for the physical. In December 1965, the board sent the petitioner a warning that it was considering declaring him a delinquent because of his failure to report for the second pre-induction physical. 1 This communication was also returned to the board stamped "addressee unknown."
Davis appealed his conviction to the Court of Appeals for the Ninth Circuit. While that appeal was pending, this Court announced its decision in Gutknecht v. United States, 396 U.S. 295 (1970). In Gutknecht a Selective Service registrant's induction had been accelerated because his local board had declared him a delinquent. 6 When he failed to report for induction as ordered, he was prosecuted and convicted under 50 U.S.C. App. 462. The delinquent registrant's accelerated induction was ordered in accordance with another portion of 32 [417 U.S. 333, 338] CFR 1631.7 (a) that, like the provision applicable to Davis, called for exceptional treatment for registrants whom a local board had declared delinquent. Local boards were authorized by 32 CFR 1642.4 to issue a declaration of delinquency "[w]henever a registrant . . . failed to perform any duty or duties required of him under the selective service law," other than to report as ordered for induction or for civilian work. Both Davis and Gutknecht were declared delinquent on the authority of 1642.4. 7 In Gutknecht, the Court held that the Selective Service regulations that accelerated the induction of delinquent registrants by shifting them to the first priority in the order of call were punitive in nature and, as such, were without legislative sanction. 8 Accordingly, the Court concluded that the registrant could not be prosecuted for failure to comply with an induction order issued pursuant to these regulations.
After Gutknecht, the Court of Appeals remanded the petitioner's case to the District Court "without limitation of scope but especially for consideration . . . in the light of the intervening decision of Gutknecht v. United States." 432 F.2d 1009, 1010 (1970). On remand, [417 U.S. 333, 339] the District Court, after conducting a hearing, concluded that the petitioner's induction had not been accelerated because of his delinquency status and that Gutknecht therefore did not affect his conviction. 9 On appeal, the Court of Appeals affirmed. 447 F.2d 1376.
While Davis' subsequent petition for certiorari was pending in this Court, the Court of Appeals for the Ninth Circuit decided United States v. Fox, 454 F.2d 593. The circumstances leading to Fox's induction order were virtually identical to those in the petitioner's case. Like Davis, "Fox was declared delinquent by his Selective Service Board . . . for his failure to appear for preinduction physical examinations as ordered . . . ." Ibid. Prior to receiving his induction order, "Fox . . . was never found to be `acceptable for service' and he was [not] mailed a Statement of Acceptability . . . at least 21 days before his induction date . . . ." "[T]hus the only authority the Local Board had for its order to Fox to report for induction was the provision of 1631.7 (b) 10 for delinquents to be called without a previous finding of acceptability or the mailing of a Statement of Acceptability 21 days before induction." Id., at 595. [417 U.S. 333, 340] This was the same regulation on which the board's induction order to Davis had been predicated.
At Fox's post-Gutknecht trial for failure to report for induction, "the government offered evidence . . . to show that Fox's induction order was not accelerated by the declaration of delinquency." "The trial judge found no acceleration and convicted." Id., at 593-594. The Court of Appeals reversed Fox's conviction on the authority of Gutknecht. The court held that "Fox's induction was accelerated by the declaration of delinquency as a matter of law [because] [w]ithout the declaration, the Board could not have ordered him to report for induction." Id., at 594. Thus, the court concluded "that the [induction] order . . . was illegal and created no duty on Fox's part to report for induction." Id., at 595.
In opposing Davis' petition for certiorari, the Solicitor General conceded that "the holdings in Fox and in [Davis] are inconsistent," but nevertheless urged the Court to deny certiorari in that "the conflict is an intracircuit one . . . [to] be resolved by the Ninth Circuit itself . . . ." Supplemental Memorandum for the United States in Opposition 2 (No. 71-661, O. T. 1971). We denied Davis' petition for certiorari. 405 U.S. 933 .
After an unsuccessful attempt to secure a rehearing in the Court of Appeals, Davis was remitted to federal custody to commence serving his three-year sentence. He then instituted the present collateral proceeding under 28 U.S.C. 2255, which permits "[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . [to] move the court which imposed the sentence to vacate, set aside or correct the sentence." In his 2255 motion, [417 U.S. 333, 341] Davis asserted that the Court of Appeals for the Ninth Circuit had in the Fox case effected a change in the law of that Circuit after the affirmance of his conviction, and that its holding in Fox required his conviction to be set aside. The District Court summarily denied the petitioner's motion. 11 On appeal, the Court of Appeals affirmed without considering the merits of the petitioner's claim on the ground that "[t]he decision on the direct appeal is the law of the case," and that therefore any "new law, or change in law" resulting from its decision in United States v. Fox would "not [be] applied in this circuit under circumstances such as here presented." 472 F.2d 596. Because the case presents a seemingly important question concerning the extent to which relief under 28 U.S.C. 2255 is available by reason of an intervening change in law, we granted certiorari. 414 U.S. 999 .
The sole issue before the Court in the present posture of this case is the propriety of the Court of Appeals' judgment that a change in the law of that Circuit after the petitioner's conviction may not be successfully asserted by him in a 2255 proceeding. 12 Thus, our inquiry is confined to the availability of a 2255 proceeding for [417 U.S. 333, 342] the resolution of Davis' claim to relief from his conviction.
Because the petitioner had unsuccessfully litigated the Gutknecht issue on direct review, the Court of Appeals held that its earlier affirmance was "the law of the case" and precluded the petitioner from asserting on collateral attack his claim that its Fox decision had subsequently changed the law of the Ninth Circuit on that issue. In this Court, the Solicitor General's brief concedes that the opinion of the Court of Appeals in this regard "is not consonant with this Court's holding in Sanders v. United States, 373 U.S. 1 ." 13 In Sanders, the Court held, inter alia, that even though the legal issue raised in a 2255 motion "was determined against [the applicant] on the merits on a prior application," "the applicant may [nevertheless] be entitled to a new hearing upon showing an intervening change in the law . . . ." Sanders v. United States, 373 U.S. 1, 17 . The same rule applies when the prior determination was made on direct appeal from the applicant's conviction, instead of in an earlier 2255 proceeding, "if new law has been made . . . since the trial and appeal." Kaufman v. United States, 394 U.S. 217, 230 (1969). Thus, the Court of Appeals erred in holding that "the law of the case," as determined in the earlier appeal from the petitioner's conviction, precluded him from securing relief under 2255 on the basis of an intervening change in law.
The dissent of MR. JUSTICE REHNQUIST rejects any suggestion that the language concerning "sentence[s] . . . otherwise open to collateral attack" can encompass a claim that a confinement under that sentence violates the "laws of the United States," contending that this would reduce the remaining language regarding "a denial or infringement of constitutional rights" to surplusage. Indeed, the nub of the dissent is that 2255 "does not speak of an illegal `confinement' . . . or even of an illegal conviction, but rather of illegal sentences." Post, at 356. (Emphasis in original.) Although this microscopic analysis of 2255 surely shows that the statutory language is somewhat lacking in precision, the resulting shadow that the dissenting opinion would cast over the statute totally disappears in the light of its legislative history.
No microscopic reading of 2255 can escape either the clear and simple language of 2254 authorizing habeas corpus relief "on the ground that [the prisoner] is in custody in violation of the . . . laws . . . of the United States" or the unambiguous legislative history showing that 2255 was intended to mirror 2254 in operative effect. Thus, we cannot agree that the third paragraph of 2255 was in any fashion designed to mark a retreat from the clear statement that 2255 encompasses a prisoner's [417 U.S. 333, 345] claim of "the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States." Accordingly, we conclude that the text of the statute cannot sustain the Government's position that only claims "of constitutional dimension" are cognizable under 2255.
Moreover, there is no support in the prior holdings of this Court for the proposition that a claim is not cognizable under 2255 merely because it is grounded in the "laws of the United States" rather than the Constitution. It is true, of course, that in Sunal v. Large, 332 U.S. 174 (1947), the Court held that the nonconstitutional claim in that case could not be asserted to set aside a conviction on collateral attack. But Sunal was merely an example of "the general rule . . . that the writ of habeas corpus will not be allowed to do service for an appeal." Id., at 178. "Appeals could have been taken in these cases, but they were not." Id., at 177. The Court was careful to point out that "if Sunal and Kulick had pursued the appellate course and failed, their cases would be quite different. But since they chose not to pursue the remedy which they had, we do not think they should now be allowed to justify their failure by saying they deemed any appeal futile." Id., at 181. Moreover, "[t]he case [was] not one where the law was changed after the time for appeal had expired." Ibid. Thus, Sunal cannot be read to stand for the broad proposition that nonconstitutional claims can never be asserted in collateral attacks upon criminal convictions. 15 Rather, [417 U.S. 333, 346] the implication would seem to be that, absent the particular considerations regarded as dispositive in that case, the fact that a contention is grounded not in the Constitution, but in the "laws of the United States" would not preclude its assertion in a 2255 proceeding.
This is not to say, however, that every asserted error of law can be raised on a 2255 motion. In Hill v. United States, 368 U.S. 424, 429 (1962), for example, we held that "collateral relief is not available when all that is shown is a failure to comply with the formal requirements" of a rule of criminal procedure in the absence of any indication that the defendant was prejudiced by the asserted technical error. We suggested that the appropriate inquiry was whether the claimed error of law was "a fundamental defect which inherently results in a complete miscarriage of justice," and whether "[i]t . . . present[s] exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent." Id., at 428 (internal quotation marks omitted). The Court did not suggest that any line could be drawn on the basis of whether the claim had its source in the Constitution or in the "laws of the United States."
In this case, the petitioner's contention is that the decision in Gutknecht v. United States, as interpreted and applied by the Court of Appeals for the Ninth Circuit in the Fox case after his conviction was affirmed, establishes that his induction order was invalid under the Selective Service Act and that he could not be lawfully convicted for failure to comply with that order. If this contention is well taken, then Davis' conviction and punishment are for an act that the law does not make criminal. There can be no room for doubt that such a circumstance "inherently results in a complete miscarriage of justice" and "present[s] exceptional circumstances" [417 U.S. 333, 347] that justify collateral relief under 2255. Therefore, although we express no view on the merits of the petitioner's claim, we hold that the issue he raises is cognizable in a 2255 proceeding.
[ Footnote 1 ] The notice further stated that "[a] delinquent registrant loses his eligibility for deferment and may be placed in a class immediately available for service. He is ordered for induction ahead of other registrants." Pet. for Cert. 21a.
"(a) Whenever a registrant has failed to perform any duty or duties required of him under the selective service law other than the duty to comply with an Order to Report for Induction . . . or the duty to comply with an Order to Report for Civilian Work . . ., the local board may declare him to be a delinquent."
[ Footnote 3 ] Title 32 CFR 1641.4 imposes a duty on every registrant to report for an Armed Forces physical examination at the time and place fixed in the order mailed to the registrant by the board. Title 32 CFR 1641.1 imposes a duty on every registrant "to keep his local board currently informed in writing of . . . the address where mail will reach him . . . ."
[ Footnote 4 ] Title 50 U.S.C. App. 462 (a) provides, in pertinent part, that "any person . . . who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title, or rules, regulations, or directions made pursuant to this title . . . shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment." Title 32 CFR 1641.5 imposes a duty on every registrant "to report for induction at the time and place ordered by the local board."
[ Footnote 5 ] Both induction orders sent to the petitioner had the word "Delinquent" typed on the face. The local board's "Minutes of Action" also reflect that the petitioner was ordered to report "as Del."
[ Footnote 6 ] Title 32 CFR 1631.7 (1967) established an order in which registrants who were eligible would be called for induction. A registrant's place in this order of call was determined by several factors, including age and marital status. If a registrant were declared a delinquent under 32 CFR 1642.4 (1967), he immediately entered the first priority in the order of call and was ordered to report for induction even ahead of volunteers for induction. In this sense, the registrant's induction was "accelerated" as a result of the local board's delinquency declaration.
[ Footnote 7 ] Gutknecht had been declared a delinquent for failing to have his registration certificate and current classification notice in his possession at all times, as required by 32 CFR 1617.1 and 1623.5, respectively.
"The power under the regulations to declare a registrant `delinquent' has no statutory standard or even guidelines. The power is exercised entirely at the discretion of the local board. It is a broad, roving authority, a type of administrative absolutism not congenial to our law-making traditions. . . . We search the Act in vain for any clues that Congress desired the Act to have punitive sanctions apart from the criminal prosecutions specifically authorized . . . . If federal or state laws are violated by registrants, they can be prosecuted. If induction is to be substituted for these prosecutions, a vast rewriting of the Act is needed." 396 U.S., at 306 -307.
[ Footnote 9 ] At the hearing in the District Court, the executive secretary of the local board testified that the petitioner would have been inducted earlier if he had not failed to appear for the physical. In corroboration, the Government introduced the local board's "delivery lists" showing the induction dates of other registrants at the local board. The District Court found that if the petitioner had complied with the local board's procedures and "[h]ad . . . not been declared a Delinquent, he would have been ordered to report for induction on or before November 15, 1966," which would have been nearly eight months before he finally failed to report (July 11, 1967).
[ Footnote 10 ] Between the dates of the induction orders of Davis and Fox, the provisions of 32 CFR 1631.7 (a) (1967) were incorporated into 32 CFR 1631.7 (b) (1969).
[ Footnote 11 ] At the time of his 2255 motion in the District Court, Davis also moved under Fed. Rule Crim. Proc. 35 for reduction or modification of his sentence. This motion was taken under advisement by the District Court and was thereafter granted in part. As a result, the petitioner was released from incarceration after having served four months of his three-year sentence, and he was placed on probation for the remainder of the original term.
[ Footnote 12 ] In the absence of a decision by the Court of Appeals on the merits of the petitioner's contentions, this case is not an appropriate vehicle to consider whether the Gutknecht decision has retroactive application or whether the Fox case was correctly decided by the Court of Appeals.
[ Footnote 13 ] Brief for United States 25 n. 11.
[ Footnote 14 ] United States v. Hayman, 342 U.S. 205, 217 (1952).
[ Footnote 15 ] Although Sunal held that a federal prisoner could not assert a nonconstitutional claim on collateral attack if he had not raised it on appeal, the Court there recognized that this rule would not bar the assertion of constitutional claims in collateral proceedings even if the applicant had failed to pursue them on appeal. 332 U.S. 174, 178 -179, 182. Cf. Kaufman v. United States, 394 U.S. 217, 223 (1969).
I agree with the Court's holding that review under 28 U.S.C. 2255 is available to petitioner, due to the intervening change in the law of the Circuit. But I would dispose of the case finally, not remand it.
Petitioner's case turns on whether his conviction for refusing induction has been invalidated by Gutknecht v. United States, 396 U.S. 295 (1970). Both parties have raised, briefed and argued this issue, and it is properly before us. We should, in the interest of judicial economy if for no other reason, decide the Gutknecht issue and bring to an end this lengthy litigation, rather than remand it to the Court of Appeals for that court's fourth round of consideration.
In Gutknecht, the registrant was declared a delinquent for failing to retain his registration and classification papers in his possession at all times. He had surrendered these papers in an act of protest against the Vietnam conflict. As a consequence of the delinquency declaration, he was rushed - indeed it might be said railroaded - to induction. The entire process lasted less than two months, and Gutknecht was issued an induction order on the day after Christmas, only six days after he had been declared a delinquent. He was deprived of his standing in the order of call and was truly "accelerated" in that he was ordered to induction prior to the date on which he would have been called if treated in the normal manner. Gutknecht, in essence, was caught up in the tide of punitive actions by the Selective Service System in the late 1960's against those who were thought to be evading military service because of opposition to the Vietnam conflict.
The Court's opinion in Gutknecht repeatedly refers to this deliberately punitive attitude of the Service and its use of the then prevailing delinquency regulations as a means, short of criminal prosecution, for dealing with such persons. See, e. g., 396 U.S., at 306 -308. But I do not read Gutknecht as overturning the former delinquency regulations in all circumstances, or as depriving boards of a reasonable and effective alternative procedure for dealing with recalcitrant registrants who plainly were seeking to avoid military service. If the stated rationale of the holding in Gutknecht is accepted, that case invalidated those regulations only insofar as they were applied punitively to advance the date of a registrant's induction or to deprive him of procedural rights that he had not waived. See United States v. Dobie, 444 F.2d 417 (CA4 1971). The reasons relied upon by the Court in Gutknecht and in the concurring opinion [417 U.S. 333, 349] of MR. JUSTICE STEWART, 396 U.S., at 314 , are incompatible with a per se rule proscribing all board authority to order an evasive registrant to report for induction. Thus, in my view United States v. Fox, 454 F.2d 593 (CA9 1971), on which Davis relies, was incorrectly decided.
In the instant case it is undisputed that Davis was not, as a result of being declared delinquent, ordered to report for induction at a point in time prior to the normal order of his call. Indeed, due to the board's patient efforts to deal with Davis' repeated attempts to obstruct the induction process, Davis was ordered to report for induction some seven months later than would have been the case if the process had been allowed to function normally. There is no hint of vindictiveness or of an attempt to punish Davis.
The only impact on Davis of being declared delinquent, other than a delay in the issuance of an order to report for induction, was that the declaration of delinquency permitted the board under then prevailing regulations to issue an induction order in the absence of a pre-induction physical examination and of the resulting form letter notifying Davis of his acceptability for service. 2 Davis attempts to portray these preconditions [417 U.S. 333, 350] on induction as significant procedural rights of which he was unfairly deprived by the board. The argument is frivolous. Davis frustrated every effort of the board over a period of more than two years to accord him the right to a physical examination. Thus he waived the procedural rights on which he now seeks to rely. Moreover, he would have received such an examination in any event if he had reported for induction. And the form notifying a registrant of acceptability for service is hardly a matter of major moment, particularly to one who had long been on notice of the pendency of an induction order.
[ Footnote 1 ] Gutknecht concerned primarily 32 CFR 1642.13 (1969), now superseded, which assigned first priority in the order of induction to delinquents. That regulation is not at issue here.
"That a registrant classified in Class I-A or Class I-A-O who is a delinquent may be selected and ordered to report for induction . . . notwithstanding the fact that he has not been found acceptable for service . . . and has not been mailed a Statement of Acceptability . . . ."
Davis received his induction notice under this regulation. Davis maintains that Gutknecht invalidated the above proviso clause, thus depriving the board of the power to induct him in the absence of [417 U.S. 333, 350] a finding of acceptability (i. e., a pre-induction physical) and a Statement of Acceptability. But, as noted, Gutknecht dealt with punitive treatment of delinquents, not all treatment of such registrants. Moreover, the above regulation was not at issue in Gutknecht.
The Court today holds, with a minimum of discussion, that petitioner, in a proceeding under 28 U.S.C. 2255, may raise his claim that his induction into the Armed Forces was accelerated contrary to the principles of Gutknecht v. United States, 396 U.S. 295 (1970). The Court reaches this result despite the fact that a United States District Court and the Court of Appeals for the Ninth Circuit previously considered this contention in light of Gutknecht and concluded that petitioner's induction [417 U.S. 333, 351] had not in fact been accelerated. As a justification for the decision this Court suggests that a 2255 motion is both permissible and appropriate because a panel of the Court of Appeals for the Ninth Circuit has rendered a subsequent decision which adopts a new legal test for determining whether acceleration has occurred and which, if applied to petitioner, would probably change the outcome of his case. Since I believe the Court's decision is justified neither by the language of 2255 itself nor by any prior case decided by this Court, and since I believe the potential consequences of the decision are harmful to the administration of justice, I dissent.
The Court's conclusion, discussed infra, that claims such as petitioner's can be raised on a 2255 motion, is actually unnecessary for the disposition of this case. The decisions of the District Court and the Court of Appeals rested entirely on application of a "law of the case" theory, a position that the Government now disavows and that the Court disposes of in a single paragraph. The petitioner in his petition for certiorari and in his brief on the merits principally addressed that issue and his sole rebuttal of the Government's contention that nonconstitutional attacks on judgments of conviction are not cognizable in 2255 proceedings is contained in his reply brief where he devotes one paragraph to arguing that his claim is constitutional. Thus the Court reaches out to decide a highly important issue without the benefit of lower court attention to the question, without full briefing and, in my view, without full examination of the issues involved. It would seem preferable to remand this case, as the Court does anyway, without deciding this issue, allowing further consideration of the question below and leaving our venture into this area for a more appropriate [417 U.S. 333, 352] occasion. Since the Court declines to do so, however, I will also address the broader question to which the Court proceeds.
The facts of this case are set out in detail in the Court's opinion. I review them here briefly only to emphasize the extent of both administrative and judicial consideration which petitioner has received. A mere recounting of the facts dispels the notion that there are any equities whatever in support of petitioner's claim for relief.
Petitioner's difficulties with the Selective Service System began in February of 1965 when he was classified I-A by his local draft board. At that time he was ordered to report for a pre-induction physical examination, but did not appear on the specified date. The board then attempted to schedule another physical but was frustrated by petitioner's failure to advise the board of his whereabouts. At this point the board warned petitioner that he was in danger of being declared a delinquent, but this warning was also returned with the notation "addressee unknown."
For reasons that I frankly do not understand, the Court seems to believe that the question of whether claims such as petitioner's may be raised in a motion under 2255 is either largely settled by 2255 itself and by earlier decisions of this Court or, perhaps, is too inconsequential to require extended treatment. Neither premise is sound. Both the language of 2255 and the case law of this Court suggest that the issue is very much in doubt, and the potential consequences of the decision suggest that the matter calls for serious and careful consideration.
In deciding whether claims of this type may be raised in a 2255 motion, the logical starting place is the statute itself. The Court's opinion, however, gives the statute only a passing nod, apparently believing that ambiguity is best resolved by ignoring the source from which it arises. I believe the statute and the Court's treatment of it require a closer look.
"A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the [417 U.S. 333, 356] sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence."
That paragraph, however, does not speak of an illegal "confinement," as suggested by the Court, or even of an illegal conviction, but rather of illegal sentences. Furthermore, the paragraph is concerned only with motions for relief, not with the Court's power to grant relief. The power to grant relief is instead governed by the more specific provisions of paragraph three of the statute.
The Court, however, strongly suggests that its opinion could rest upon the provision of paragraph three providing relief for "sentence[s] . . . otherwise open to collateral attack." This suggestion only compounds the confusion. To begin with, it seems odd that the Court chooses to bypass the language of that same sentence dealing with sentences (rather than judgments) "not authorized by law" since that language far more closely parallels the language from the first paragraph cited by the Court. But, in any event, reading words "otherwise open to collateral attack" as simply a catch-all phrase, including any recognizable ground for upsetting convictions on direct appeal makes it difficult to see why Congress then bothered to include the separate provision allowing relief when "there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack . . . ." The Court could not reasonably argue that this provision is intended to give additional protection to constitutional rights because the Court purports to find no distinction in the statute between constitutional and nonconstitutional attacks on judgments of conviction.
But assuming for the moment that the Court's approach is correct, I find a second obstacle to this decision in the definition, or lack of definition, of the word "laws." For though the Court seems to accept that petitioner has stated a recognizable claim that his sentence was somehow imposed in violation of the laws of the United States, the Court only briefly mentions what law the sentence is thought to be in violation of. Certainly petitioner cannot contend that his sentence under 50 U.S.C. App. 462 (a) for refusing to report for induction is in violation [417 U.S. 333, 359] of that section. Nor does he point to any other statutory provision which prohibits his incarceration for that offense. Therefore the basis for the claim, as the Court seems to believe, lies somewhere in the holdings of this Court in Gutknecht and of the Court of Appeals for the Ninth Circuit in Fox. The inclusion of either of these decisions in the category of "laws of the United States" merits some additional attention.
The term "laws of the United States" was included in 2255 presumably to continue its traditional place in federal habeas corpus statutes. 15 The Habeas Corpus Act of 1867, c. 28, 14 Stat. 385, gave federal courts the power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty "in violation of the constitution, or of any treaty or law of the United States . . . ." This language was carried forward in Rev. Stat. 753 and now in 28 U.S.C. 2241 (c) (3) and 2254 where the word "law" has been changed to "laws." The same phrasing has now been incorporated into 2255. But the term's longevity has not brought with it a corresponding judicial elucidation. Like many other issues in the field of habeas corpus, the question seems to have been left for decision on a case-by-case basis.
The Court gives no indication of where this loose process of definition will end. It would certainly be surprising if a decision of the Court of Appeals for the Fourth Circuit, for example, were sufficient to give prisoners in the Ninth Circuit grounds for a 2255 motion, but it is not clear to me why a decision of the Fourth Circuit is any less a law of the United States than a decision of the Ninth Circuit. Concededly, it need not be considered binding on the Ninth Circuit, but that is not the concern under 2255. Nor is it obvious to me what the Court would require a court of appeals to do when intracircuit conflicts arise. The decision today would seem to compel the Court to give a defendant already convicted according to one statutory interpretation the benefit of any more liberal interpretation which might emerge. This erratic process of interpretation finds no warrant in 2255.
The only other case mentioned by the Court which might be relevant to this issue is Sunal v. Large, 332 U.S. 174 (1947), a case like Hill in which this Court denied relief for a claim with no constitutional foundation. The Court today suggests, by stress on a negative pregnant, that the decision to deny habeas corpus relief in that case was grounded solely on the petitioner's failure to raise his claim on direct appeal and that if the issue had been properly raised, the Court would have reached a different conclusion. It is true, of course, that collateral relief is not to be employed as a substitute for an appeal, and Sunal is a leading case for that proposition. But a reading of Sunal which recognizes only the effect of failure to appeal is unnecessarily grudging. The Court in Hill, for example, although faced with a situation in which the noncompliance with Rule 32 (a) was not raised on appeal, did not imply that the error could have been raised in 2255 proceedings if an appeal had been taken. Rather the Court stated flatly: "We hold that the failure to follow the formal requirements of Rule 32 (a) is not of itself an error that can be raised by collateral attack . . . ." 368 U.S., at 426 .
The lack of foundation from which the Court now proceeds to fashion a new, expansive collateral-relief doctrine unfortunately suggests that the Court is prepared to extend or retract relief on the basis of whether a majority of the Court believes that a particular set of factual circumstances is "exceptional" or that a particular litigant has raised an appealing point. Thus, the petitioner in Hill is barred from raising his claim at all in a 2255 proceeding because failure to comply with an explicit federal rule is "not of itself an error of the character or magnitude cognizable under a writ of habeas corpus." The petitioner in Sunal is also barred, despite a "far more compelling" claim than the one raised in Hill, see 368 U.S., at 428 , apparently because he did not receive a previous rejection of his claim on direct appeal. But petitioner in this case succeeds. According to the Court, this case is different, for petitioner has already had his precise claim decided against him once, curiously enough a circumstance considered favorable for him, and because "[t]here can be no room for doubt that such a circumstance [conviction for failure to obey a possibly invalid order] `inherently results [417 U.S. 333, 365] in a complete miscarriage of justice' and `present[s] exceptional circumstances' that justify collateral relief under 2255." It is difficult to see that this process of selection rests upon any reasoned distinctions which may be derived from either the statute or the cases.
The Court's rather brief dismissal of the Government's arguments in this case might be understandable were the issues of less importance, or the result less likely to produce severe repercussions. After all, the scope of 2255 relief has been undefined for almost 25 years and it might be supposed that continuation of this state of affairs would cause no unusual difficulties. But the potential consequences of the Court's decision today make a laissez-faire attitude inappropriate. For, "[a]ssuming that there `exists,' in an ultimate sense, a `correct' decision of a question of law, we can never be assured that any particular tribunal has in the past made it: we can always continue to ask whether the right rule was applied, whether a new rule should not have been fashioned." Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 447 (1963). Two examples will suffice as illustrations.
(1) This Court occasionally, though not with great frequency, is called upon to resolve conflicts among the courts of appeals on nonconstitutional criminal questions. For example, in January of 1974, the Court decided United States v. Maze, 414 U.S. 395 , a case in which we were asked to resolve a conflict among the courts of appeals concerning the circumstances under which fraudulent use of a credit card might violate the federal mail fraud statute. The Courts of Appeals for the Sixth and Tenth Circuits had construed the scope of the statute somewhat more narrowly than five other [417 U.S. 333, 366] courts of appeals. In Maze we approved the minority approach, agreeing with the Sixth Circuit that the respondent's conviction under the mail fraud statute should be reversed.
The Court's decision today seems to provide full opportunity for all defendants convicted under the Mail Fraud Act in the circuits whose view was not accepted to relitigate those convictions in a 2255 proceeding. Most of those convictions have received full appellate review, and many defendants had unsuccessfully sought certiorari in this Court. The district courts, faced with this influx of motions, will be faced with the difficult task of sifting through various factual claims to determine if the principles of Maze should be applied. I suspect that the burden will not be inconsiderable.
The effect will be twofold. First, federal courts which are already overburdened with cases will find that burden increased. As Mr. Justice Jackson noted in Brown v. Allen, 344 U.S. 443, 537 (1953) (concurring in result): "It must prejudice the occasional meritorious application to be buried in a flood of worthless ones." Second, there will be substantial disincentive for federal courts to overthrow settled doctrines, no matter how salutary new ones might seem. Although enlightened jurisprudence may call for adopting new policies or correcting errors of interpretation, any court considering such changes must be constantly aware that numerous final convictions will thereupon be placed in jeopardy. The possible, and often undeserved, advantage to a particular litigant is thus obtained at a cost to the entire judicial system.
These examples unfortunately may be multiplied. Admittedly, the Court does attempt to set a minimum threshold for such claims, requiring "`a fundamental defect . . . inherently result[ing] in a complete miscarriage of justice,'" and "`exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.'" (Ante, at 346.) This dictum, it is hoped will partially offset the effect of the holding in this case, though if this petitioner's case represents a miscarriage of justice it is hard to imagine one that does not. But one must be concerned that the Court, having taken this giant step so casually, may find the next step equally easy to take, allowing perhaps challenges to evidentiary rulings and other trial matters heretofore considered inappropriate for federal habeas corpus.
The decision in this case cannot reasonably be explained by the maxim "Hard cases make bad law," for although the law made is bad the case is not hard. [417 U.S. 333, 368] Whatever reason there might be to strain the contours of 2255 to permit relief to someone visited with obvious injustice, the fact is that this petitioner has had full opportunity to make his case at every stage of the way. He has alleged no deprivation of his rights to a full and fair hearing at trial, no deprivation of his right to appeal, no inability to get adequate consideration on appellate review. He simply alleges that had his case been appealed at a different time he would have won it. I cannot find that those circumstances are so exceptional as to warrant the result reached today.
I therefore dissent from the Court's opinion. Were I persuaded otherwise, on that score, however, I would nonetheless agree for the reasons stated by MR. JUSTICE POWELL in his concurring and dissenting opinion, ante, p. 347, that the judgment should be affirmed.
[ Footnote 1 ] The particular regulation relied upon by the board was 32 CFR 1642.4 (a) (1967), which was rescinded after the Court's decision in Gutknecht v. United States, 396 U.S. 295 (1970).
[ Footnote 2 ] The District Court specifically found that petitioner "would have received a complete physical examination prior to induction had he reported on July 11, 1967, as ordered." Pet. for Cert. 10a.
[ Footnote 3 ] Id., at 9a.
[ Footnote 5 ] Id., at 9a-10a.
[ Footnote 6 ] 447 F.2d 1376.
[ Footnote 7 ] 405 U.S. 933 .
[ Footnote 8 ] 472 F.2d 596.
[ Footnote 12 ] Ante, at 342-343.
[ Footnote 13 ] The statute seems, at times, to use the terms "sentence" and "judgment" interchangeably, for paragraph three allows relief from [417 U.S. 333, 357] judgments in specified instances while paragraph one would seem to allow attacks only on sentences. But the fact that no distinction is made between the terms in paragraph one does not mean that their contrasting use in paragraph three can automatically be deemed without significance. The Court should attempt to reach a reasonable interpretation based upon the particular context of the statute and the historical background of collateral relief, rather than simply abandoning the statute to study its legislative history. See, e. g., United States v. Sobell, 314 F.2d 314 (CA2), cert. denied, 374 U.S. 857 (1963).
[ Footnote 14 ] It might be argued, of course, that the first paragraph of 2255 was for some reason designed to permit the filing of motions for relief even in some cases where relief could not be granted under paragraph three. But the Court offers no reason, and I can think of none, why Congress would encourage such a futile exercise. What [417 U.S. 333, 358] the Court has done is simply to read most of paragraph three out of the statute, apparently assuming that its more specific provisions have no function in a proper interpretation of 2255.
[ Footnote 15 ] Section 2255 was enacted to provide the same relief available under the federal habeas corpus statute without the logistical problems encountered in the latter remedy. United States v. Hayman, 342 U.S. 205 (1952). The Court makes much of this fact in its opinion but then drops the issue without examining what constituted a "law" for purposes of habeas corpus or what the scope of habeas corpus relief has proved to be under the decisions of this Court.
[ Footnote 16 ] The Court in Swift v. Tyson, supra, was considering a section of the Judiciary Act of 1789, 34, 1 Stat. 92, which stated, in part: "[T]he laws of the several states, except where the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply." The Court, in explaining its doubt that court decisions constituted "laws" observed: "They are, at most, only evidence of what the laws are, and not of themselves laws. They are often re-examined, reversed, and qualified by the Courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect." 16 Pet., at 18.
[ Footnote 17 ] The Court, in fact, avoids the necessity for a closer look at the statutory language of 2255 by turning instead to the provisions of the federal habeas statute as a guide. This reliance makes all the more curious the fact that the Court does not support its view of the scope of federal habeas by any convincing citation of authority.
[ Footnote 18 ] The Sanders Court's statement of the issue before it clearly demonstrates how different that case was from the one now under consideration. In Sanders the Court said: "We consider here the standards which should guide a federal court in deciding whether to grant a hearing on a motion of a federal prisoner under 28 U.S.C. 2255. " 373 U.S., at 2 . That issue arises, not under paragraph one of 2255, setting forth the claims which a prisoner might make, or under that part of paragraph three setting forth the grounds on which relief might be granted, but under the language found earlier in paragraph three dealing with when a hearing must be held. Thus, the Court in Sanders was faced with the question, not of whether a particular type of claim is cognizable at all in a 2255 proceeding, but simply whether a hearing is required on a claim concededly within the reach of that section.
The petitioner in Kaufman, in contrast to the petitioner here, sought relief on the ground that he had been subjected to an unconstitutional search and seizure. The Court's recognition of the constitutional tenor of his claim is evident throughout the opinion. For example, the Court clearly stated that "the availability of collateral remedies is necessary to insure the integrity of proceedings at and before trial where constitutional rights are at stake," 394 U.S., at 225 (emphasis added), and that "[t]he provision of federal collateral remedies rests more fundamentally upon a recognition that adequate protection of constitutional rights relating to the criminal trial process requires the continuing availability of a mechanism for relief." Id., at 226 (emphasis added).
[ Footnote 19 ] See, e. g., Sunal v. Large, 332 U.S. 174, 179 (1947).
[ Footnote 20 ] See, e. g., DeMarco v. Willingham, 401 F.2d 105, 106 (CA7 1968); Lothridge v. United States, 441 F.2d 919 (CA6 1971).

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text:
Vaccinium myrtillus leaves are the source of natural polyphenols known to improve glycemic control in diabetic conditions through different mechanisms including intestinal a-glucosidase inhibition. In order to increase the effectiveness of V. myrtillus leaf dry extract as a-glucosidase inhibitory drug its sustained release matrix tablets have been developed.
Aim. To carry out the pharmacological evaluation of V. myrtillus leaf dry extract and its sustained release matrix tablets as a-glucosidase inhibitory agents.
Materials and methods. The matrix tablets were prepared by te wet granulation method. Experimental alimentary metabolic syndrome with persistent insulin resistance was induced in Syrian hamsters by feeding them with highly palatable fat- and sugar rich diet for 12 weeks. From the tenth week of the diet feeding, the pathological hamsters were treated with V. myrtillus leaf dry extract, its sustained release matrix tablets and voglibose tablets as a reference drug. At the end of the treatment period an oral maltose loading test with the determination of blood glucose and serum insulin concentration dynamics was performed. Vaccinium myrtillus leaf dry extract (VMLDE) was obtained according to the method developed under the supervision of Dr. O. Koshoviy (Department of Pharmacognosy, National University of Pharmacy, Kharkiv, Ukraine) . The excipients used to manufacture sustained release matrix tablets were hypromellose (HPMC) of grades Methocel K4M and Methocel K100LV (Dow Chemical Company, USA), Eudragit L100 (Evonik, Germany), microcrystalline cellulose (MCC) of a grade Avicel PH101 (FMC BioPolymer, USA), Plasdone S-630 (Ashland Inc., USA) and magnesium stearate (S.D. Fine. Chemicals Ltd., India). The tablets containing 0.2 mg of voglibose (“Voksid” produced by Kusum Pharm LLC, Ukraine), a marketed α-glucose inhibitor, were used as a reference drug in this study. Methods used : preparation of sustained release matrix tablets, induction of metabolic syndrome and experimental design, biochemical tests, statistical analysis.
Results and discussion. By all markers studied in this work the effectiveness of matrix tablets containing V. myrtillus leaf dry extract exceeded that one of the pure extract and statistically significantly did not differ from reference drug.
Conclusions. V. myrtillus leaf dry extract and its matrix tablets possess the antidiabetic action through several mechanisms, including, but not only intestinal a-glucosidase inhibition, therefore they can be considered as promising agents in diabetes and metabolic syndrome treatment.
Kolychev, I.O., Koshovyi, O. M., Zahaiko, A. L., Krasnikova, T. O., Kovalova, A. M. (2016). Farmakom, 1, 67–73.
Ruban, E. A., Kolisnyk, T. E., Slipchenko, G. D. (2015). Annals of Mechnikov Institute, 4, 17–24.
Koshovyi, O. M., Zahaiko, A. L., Kolychev, I.O., Fylymonenko, V. P., Komisarenko, A. M. (2016). Sposib oderzhannia likuvalno–profilaktychnoho zasobu iz hipohlikemichnoiu diieiu z lystia chornytsi zvychainoi. Pat. 111134 Ukraine, MPK A61K 36/45, A61K 31/195, A61K 31/05, A61P 3/10; declared 30.06.2015, published 25.03.2016, № 26.
14. Derzhavna Farmakopeia Ukrainy : v 3 tomakh. (2015). Kharkiv: Ukrainskyi naukovyi farmakopeinyi tsentr yakosti likarskykh zasobiv, 1, 1128.
16. European convention for the protection of vertebrate animals used for experimental and other scientific purposes. (1986).Strasbourg : Council ofEurope, 52.
Higa, T. S., Spinola, A. V., Fonseca–Alaniz, M. H., Evangelista, F. S. (2014). Comparison between cafeteria and high–fat diets in the induction of metabolic dysfunction in mice. Int J Physiol Pathophysiol Pharmacol, 6 (1), 47–54.
5. Перспективи створення нового гіпоглікемічного лікарського засобу на основі біологічно активних речовин листя чорниці звичайної / І. О. Количев, О. М. Кошовий, А. Л. Загайко та ін. // Фармаком. – 2016. – № 1. – С. 67–73.
8. Рубан, Е. А. Перспективы создания противодиабетических препаратов на основе полифенолов : механизмы гипогликемического действия и фармакокинетика / Е. А. Рубан, Т. Е. Колиснык, Г. Д. Слипченко // Annals of Mechnikov Institute. – 2015. – № 4. – С. 17–24.
13. Пат. 111134 Україна, МПК A 61 K 36/45, A 61 K 31/195, A 61 K 31/05, A 61 P 3/10. Спосіб одержання лікувально–профілактичного засобу із гіпоглікемічною дією з листя чорниці звичайної / Кошовий О. М., Загайко А. Л., Количев І. О., Филимоненко В. П., Комісаренко А. М. – Заявл.: 30.06.2015; опубл.: 25.03.2016. – Бюл. № 26.
14. Державна фармакопея України : в 3-х т. / Державне підприємство «Український науковий фармакопейний центр якості лікарських засобів». – 2–е вид. – Х. : Український науковий фармакопейний центр якості лікарських засобів, 2015. – Т. 1. – 1128 с.
15. Guide for the care and use of laboratory animals. – 8-th ed. –Washington: The National Academies Press, 2011. – 246 p.
16. European convention for the protection of vertebrate animals used for experimental and other scientific purpose. –Strasbourg: Council ofEurope, 1986. – 52 p.
19. Comparison between cafeteria and high–fat diets in the induction of metabolic dysfunction in mice / T. S. Higa, A. V. Spinola, M. H. Fonseca–Alaniz, F. S. Evangelista // Int. J. Physiol. Pathophysiol. Pharmacol. – 2014. – Vol. 6. – P. 47–54.

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This is an appeal from the Trademark Examining Attorney's refusal of registration of the word BOSS for 'distributorship services in the field of furniture, equipment, parts and supplies for use with business machines such as computers, word processors, typewriters, adding machines and calculators' [FN1] under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d) (1976). In particular, the refusal of registration is based on the Examining Attorney's conclusion that appellant's services are so related to 'writing-drawing-and painting implements, in particular applicators for a marking fluid,' subject of a registration of the identical mark, [FN2] and to 'writing, drawing, and painting implements-namely, applicators for marking fluid, pencils and mechanical pencils, pencil leads and refills, ballpoint, felt and fibertip pens and refills, artists' chalks and chalk holders; correction fluids and pastes, erasers for writing, drawing, painting, and marking; transparent, multilayer and self-adhesive foils and films used in the preparation of transparencies for overhead projection, transfer letters, pointers, and drawing compasses, all being for use with overhead projection,' subject of a registration of STABILO BOSS, [FN3] as to be likely to cause confusion as to the source of applicant's goods.
Both appellant and the Examining Attorney have filed briefs. No oral hearing of arguments was requested.
There is, of course, on question that the use of identical marks for goods on the one hand and related services involving those goods on the other is likely to result in confusion in trade. See, e.g., Steelcase Inc. v. Steelcare Inc., 219 USPQ 438, 435 (TTAB 1983). [STEELCARE for refinishing of furniture and office equipment held likely to be confused with STEELCASE for office furniture and accessories.] Appellant does not contest this statement of the law; however, it argues that the Examining Attorney's application of that law to the instant facts is erroneous.
*2 Appellant's amendment probably has avoided--albeit, just barely--, the possible inference that appellant's mark is sought to be registered for distributorship services involving transparencies for use with overhead projectors. [FN6] Consequently, we agree that Steelcase is distinguishable on its facts. On the other hand, appellant's amendment does not erase from the record the fact that overhead projector transparencies are advertised in applicant's specimen catalog, page 29, nor the inference drawn from their appearance in the catalog that overhead projector transparencies are related in the minds of appellant's purchasers to other office supplies in respect of which its BOSS distributorship service mark is sought to be registered. Accordingly, in the perception of appellant's customers to which its BOSS services are rendered, transparencies would be expected to be sold by a distributor which also distributes supplies for business machines, and other related articles (e.g., anti-static floor coverings, various cleaning materials, etc.). This inference is corroborated by the evidence introduced by the Examining Attorney demonstrating that office supplies of the kind distributed by appellant and encompassed by the identification of its BOSS distributorship services and supplies of the kind encompassed by the identification of goods in registrant's registrations are regularly advertised and sold by the same dealers.
Appellant's argument that its services are rendered directly to end users and, hence, move in distinctly different channels of trade than the trade channels for registrant's goods is disingenuous. Having prevailed in its argument to us that the issue must be determined not according to the services demonstrated by the specimens but according to their description in the amended identification (i.e., subject to the 'business machines' limitation discussed above), appellant now urges us to look to the specimens evidencing use rather than the identification to evaluate the channels of trade question. Thus, appellant argues that 'page three of the specimens . . . comprises the distribution of goods directly to end users.' Brief, 4. Obviously, appellant cannot have it both ways. Moreover, as has been repeatedly held, where an applicant and registrant have employed identifications of goods or services without specific limitations as to channels of trade or users, the question of likelihood of confusion must be resolved on the basis of the goods or services named, including all trade channels and potential users. E.g., CBS v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199 (Fed. Cir. 1983). In the case before us, registrant's identifications contain no channels of trade or user limitations, and the term 'distributorship services' in appellant's application does not exclude the rendering of such services to dealers. As the Examining Attorney's evidence shows, these are normal channels of trade both for the goods covered by the cited registrations and the goods involved in applicant's distributorship services.
*3 In view of the above findings, the only arguable distinction between the marks is that appellant seeks registration of its mark for services whereas the registered marks are for goods. In our view, this is not a sufficient difference to avoid confusion. The most serious problem in this regard is reverse confusion. Thus, it is a quite normal perception of prospective purchasers to presume that a mark used to identify distributorship services is also used as a trademark for some or all of the products sold by the distributor. This is demonstrated by appellant's own house mark BURROUGHS which is used on the specimen brochures to identify distributorship services and also as a trademark for many, if not most, of the products advertised therein. Certainly, were a prospective purchaser to encounter the trademark BURROUGHS on office supplies of the kind subject of the BOSS registrations cited herein, they would be apt to believe they were products distributed by Burroughs under its service mark BURROUGHS. The case can be no different for BOSS, presuming, as we must, that it may be used as presented in the drawing, i.e., as the only mark identifying appellant's distributorship services. Therein lies the basis for confusion of purchasers encountering the BOSS mark on registrant's goods.
FN1. Serial No. 494,094, filed December 14, 1984. The original identification, 'selling and delivering office supplies, parts, furniture and equipment used with office machines, typewriters, word processors, computers, etc.,' was considered indefinite and it was amended in response to the Examining Attorney's request and also in order to limit the services relating to office supplies to 'supplies for use with business machines . . . .' See, applicant's response filed June 17, 1985, page 2. The drawing depicts the word sought to be registered without any special form of lettering or associated design features.
FN2. Reg. No. 1,127,491, issued Dec. 11, 1979 to Schwan-Stabilo Schwanhausser GmbH & Co., Nuremberg (FRG); affidavit § 8 accepted, § 15 received.
FN3. Reg. No. 1,256,074, issued November 1, 1983 to Schwan-Stabilo Schwanhausser GmbH & Co., Nuremberg (FRG).
FN4. STABILO BOSS is not, in fact, identical. Therefore, we interpret appellant's concession to incorporate an admission that the presence of registrant's house mark 'STABILO' is insufficient to obviate confusion between its mark and the mark subject of the STABILO BOSS registration. We agree, and also agree with Examining Attorney Berger that the fact that appellant's mark is an acronym, derived from 'Burroughs On-line Supplies Services' is irrelevant as the specimens show the term BOSS is clearly used as a word in the context of its ordinary meaning ('This BOSS takes orders.'), and it is so presented (i.e., BOSS rather than B.O.S.S.) in the drawing of the application for registration. In this context, derivation is irrelevant. See, e.g., Varian Associates v. Leybold-Hereues Gesellshaft, 219 USPQ 829, 833 (TTAB 1983).
FN5. The use of BOSS in the specimen catalog is insignificant, consisting, merely, of three references to the term in the copy on page 3. ('This BOSSSM takes orders. Hi I'm BOSS! BOSS is short for Burroughs On-line Supplies Service. I work to expedite your order quickly and efficiently. You will be seeing more of me. Watch and See!') However, we must presume that BOSS may eventually be used independently of the other marks BURROUGHS and BURROUGHS ON-LINE SUPPLIES SERVICE which are more prominently used to identify the services on the cover and pages of the specimen catalog.
FN6. The use of supplies for use with 'business machines such as,' followed by five examples of business machines (not including overhead projectors) rules out supplies for overhead projectors only if the latter are not 'business machines,' since the listing is exemplary rather than all-inclusive. Overhead projectors generally have cooling fans which are operated by motors having moving parts. On the other hand, in normal usage, albeit these items are business equipment, they are probably not business machines. While we are in doubt, and since the Examining Attorney has provided no evidence on the question and does not argue the contrary position in her brief, we are obliged, giving appellant the benefit of the doubt, to infer that its distributorship services, as identified in its application, do not involve overhead projector transparencies.


text:
- income from other sources.
Note: Income from other economic activity as per Art. 29a of the PITA is income from economic activity of individuals registered as tobacco producers and agricultural producers, which income by law or at individuals’ discretion is taxed following the procedure for taxation of income from sole proprietors’ economic activity.
The tax on the common annual tax base shall be assessed by multiplying the common annual tax base by the 10% tax rate.
The income from economic activity as a sole proprietor and the income from other economic activity as per Art. 29a of the PITA shall be taxed separately, with tax on the annual tax base. The tax rate is 15 per cent.
The deadline for submission of the annual tax return as per Art. 50 of the Personal Income Tax Act for 2011 is May 2nd, 2012.
The deadline for paying the declared in the annual tax return tax for additional payment is also May 2nd, 2012.
See more information about the Annual Tax Return as per Art. 50 of the PITA with annexes and instructions about its submission.
Important! The individuals, who submit their annual tax return by February 10th, 2012, are eligible to a 5% discount on the paid within the same deadline part of the tax for additional payment under the annual tax return.
The individuals, who submit their annual tax return online by May 2nd, 2012, are eligible to a 5% discount on the paid within the same deadline part of the tax for additional payment under the annual tax return, provided that they don’t use the 5% discount stipulated for the February 10th deadline.
Attention! Discounts are given if the individuals, who must pay tax in advance, have paid the tax due in full amount and within the statutory deadlines.
• which is subject to taxation with patent tax under the Local Taxes and Fees Act (LTFA).
1. Income received during the year from a source abroad, from dividends, liquidation quotas, as well as taxable income from supplementary voluntary insurance, from voluntary health insurance, and from life insurance.
2. Shares owned and shareholdings in companies, place of business, fixed establishment and immovable properties abroad.
d) Outstanding balances as of the end of 2011 of loans received within the same year as well as within the previous 5 tax years, excluding bank loans received by credit institutions as per the Credit Institutions Act, if the total amount of these balances exceeds BGN 40 000.
Attention! Non-resident individuals, who are considered resident individuals for tax purposes of the EU member states or other countries, which are part of the European Economic Area Agreement, are entitled to choose to recalculate the final income tax pursuant to Art. 37 of the PITA. The choice shall be exercised by submitting an annual tax return pursuant to Art. 50 of the PITA where the tax return includes all other charges and incomes, subject to declaring by the non-resident individual.
- income of non-resident individuals in the cases when they have chosen to recalculate the final tax on incomes pursuant to Art. 37 of the PITA.
The annual tax return shall not be submitted also in case the individual is registered as sole proprietor, but in 2011 has not performed economic activity, has not received other income subject to declaring in the annual tax return, and there are not facts he must declare (real estate abroad, loans received and/or extended, etc.).
.........via Internet with an electronic signature.

matches:
Art. 29
Art. 29
Art. 50
Art. 50
Art. 37
Art. 50
Art. 37


The right to be charged in the State and District where the offense occurred.
2.	Subject to the express condition stated in this paragraph, the defendant waives each of the rights set out in Paragraph 1(a)-(k), including all jurisdictional defenses to the prosecution of this case, and agrees voluntarily to consent to the jurisdiction of the United States to prosecute this criminal case against him in United States District Court. Under Rule 7(b), Fed. R. Crim. P., the defendant will waive indictment. The defendant will plead guilty to a one-count Information filed in the United States District Court for the Northern District of California. It is expressly understood that all waivers of rights are conditioned on the Court accepting this Plea Agreement. If this Plea Agreement is rejected or voided, the defendant's waivers likewise will be rendered void and his rights will remain in full force and effect. The Information will charge the defendant with participating in a conspiracy to suppress and eliminate competition by fixing the prices and allocating market shares of monochloroacetic acid and sodium monochloroacetate (collectively referred to as "MCAA") to be sold in the United States and elsewhere, beginning in or about September 1995 and continuing until in or about December 1996, in violation of the Sherman Antitrust Act, 15 U.S.C. § 1.
3.	Under the terms of this Plea Agreement, the defendant will plead guilty to the criminal charge described in Paragraph 2, and will make a factual admission of guilt to the Court in accordance with Rule 11, Fed. R. Crim. P., as set forth in Paragraph 4.
During the relevant period, MCAA sold by one or more of the conspirator firms, and equipment and supplies necessary to the production and distribution of MCAA, as well as payments for MCAA, traveled in interstate and foreign commerce. The business activities of the defendant, his current employer, Elf, and their coconspirators in connection with the production and sale of MCAA affected by this conspiracy were within the flow of, and substantially affected, interstate and foreign trade and commerce.
Under 18 U.S.C. § 3013(a)(2)(A) and U.S.S.G. § 5E1.3, the Court is required to order the defendant to pay a $100 special assessment upon conviction for the charged crime.
7.	Sentencing for the offense to be charged will be based on the U.S.S.G. Manual in effect on the day of sentencing. The United States and the defendant agree on the determination of the U.S.S.G. offense level in this case, as set out below, based on currently available information. The defendant understands that, should the United States become aware of information that renders incorrect the calculation of the defendant's total offense level, criminal history category, or applicable adjustments or enhancements set out below, the United States will notify the Court before sentencing. Under U.S.S.G. § 1B1.8, self-incriminating information provided to the United States under this Plea Agreement and discussions leading to this Plea Agreement will not be used to increase the volume of affected commerce applicable to the defendant or in determining the Guidelines range.
(j) Therefore, the appropriate range of sentence is 15 to 21 months imprisonment, no term of probation (§ 5B1.1), supervised release of one year (§§ 5D1.1, 5D1.2(a)(3)), restitution (§ 5E1.1), a fine of 1% to 5% of the volume of commerce (§§ 2R1.1(c)(1), 5E1.2(b)), and a special assessment of $100 (§ 5E1.3).
8.	Under Rule 11(e)(1)(C), Fed. R. Crim. P., the United States and the defendant agree that the appropriate disposition of this case is, and agree to jointly recommend that the Court impose, a sentence of imprisonment for a period of ninety (90) days, the payment of a criminal fine of $50,000, and no period of supervised release. The United States will not object to the defendant's request that the Court make a recommendation to the Bureau of Prisons that the Bureau of Prisons designate that the defendant be assigned to a Federal Minimum Security Camp (if possible, at Lompoc, California) to serve his sentence of imprisonment and that the defendant be released following the imposition of sentence to allow him to self-surrender to the assigned correctional facility on a specified date. This paragraph (excluding subparagraphs 8(a) - (c)) constitutes the agreed-upon sentence in this case.
In the event that the defendant fails to return to the United States to serve his sentence of imprisonment at a Federal Minimum Security Camp, the defendant agrees not to oppose or contest any request for extradition by the United States to face charges either in the Information referenced in Paragraph 2 of this Plea Agreement or in any related indictment.
9.	The United States and the defendant agree that the Guidelines sentence range exceeds the agreed-upon sentence. The United States agrees that, based on the defendant's past and ongoing cooperation, which occurred prior to the sentencing hearing in this case, it will file a motion, under U.S.S.G. § 5K1.1, for a downward departure from the Guidelines sentence range and will request that the Court impose the agreed-upon sentence set out in Paragraph 8 because of the substantial assistance the defendant has provided in the government's investigation of violations of federal criminal laws in the MCAA industry. Subject to the ongoing, full, and truthful cooperation of the defendant described in Paragraph 12, the United States will fully advise the Court and the Probation Office of the fact, manner, and extent of the defendant's past and ongoing cooperation with the United States' investigation and prosecutions, all material facts relating to the defendant's involvement in the charged offense, and all other relevant conduct. Under U.S.S.G. § 1B1.8, the United States agrees that self-incriminating information previously unknown to the United States that the defendant provides under this Plea Agreement and in discussions leading to this Plea Agreement will not be used in determining the defendant's applicable Guidelines range.
10.	The United States and the defendant understand that the Court retains complete discretion to accept or reject the agreed-upon sentence in Paragraph 8.
If the Court does not accept the agreed-upon sentence, this entire Plea Agreement, except Paragraph 10(b), below shall be rendered null and void.
If the Court does not accept the agreed-upon sentence, the defendant will be free to withdraw his guilty plea (Fed. R. Crim. P. 11(e)(4)). If the defendant does withdraw his guilty plea, this Plea Agreement, the guilty plea, and any statements made in connection with or in furtherance of the plea or this Plea Agreement, or in discussions leading to the plea or this Plea Agreement, shall not be admissible against the defendant in any criminal or civil proceeding (Fed. R. Crim. P. 11(e)(6)). In addition, should the Court not accept the Plea Agreement and should the defendant then withdraw his guilty plea, the United States agrees that it will dismiss the Information, without prejudice to the United States' right to indict the defendant on the charge contained in the Information and any other related charges. For a period of ten (10) consecutive days following the withdrawal of the guilty plea, the United States shall take no action, based either upon the offenses subject to this Plea Agreement or any actual or alleged violation of the Plea Agreement, to revoke the defendant's release on his personal recognizance, to subject the defendant to service of process or arrest, or to prevent the defendant from departing the United States.
11.	In light of civil cases filed that potentially provide for a recovery of a multiple of actual damages, the United States agrees that it will not seek a restitution order for the offense charged in the Information.
When called upon to do so by the United States in connection with any Federal Proceeding, testifying in trial and grand jury or other proceedings in the United States fully, truthfully, and under oath, subject to the penalties of perjury (18 U.S.C. § 1621), making false statements or declarations in grand jury or court proceedings (18 U.S.C. § 1623), and contempt (18 U.S.C. §§ 401-402).
13.	Upon acceptance of the guilty plea called for by this Plea Agreement and imposition of the agreed-upon sentence, and subject to the cooperation requirements of Paragraph 12, the United States agrees that it will not bring further criminal charges against the defendant for any act or offense committed before the Court's acceptance of this Plea Agreement and undertaken in furtherance of an attempted or completed antitrust conspiracy involving the manufacture or sale of MCAA ("Relevant Offense"). The non-prosecution terms of this paragraph do not apply to any civil liability to the United States, to any violations of the federal tax or securities laws, or to any crime of violence.
14.	The United States agrees that when the defendant is required to travel to the United States for interviews by the United States, grand jury appearances, or court appearances under this Plea Agreement, the United States will take no action, based upon any offense subject to this Plea Agreement, to subject the defendant to arrest, service of process, or prevention from departing the United States, except where the United States has sought to void the Plea Agreement under Paragraph 18. Counsel for the United States shall provide the defendant a letter to such effect in connection with any such travel required by the United States. This paragraph does not apply to the defendant's commission of perjury (18 U.S.C. § 1621), making false statements or declarations (18 U.S.C. § 1001), making false statements or declarations in grand jury or court proceedings (18 U.S.C. § 1623), obstruction of justice (18 U.S.C. § 1503), or contempt (18 U.S.C. §§ 401-402) in connection with any testimony provided under this Plea Agreement in trial, grand jury, or other judicial proceedings in the United States. The United States also agrees that documents provided under Paragraph 12 shall be deemed responsive to outstanding grand jury subpoenas issued to Elf.
does not engage in any other conduct that would warrant his removal from the United States under the Immigration and Nationality Act.
Should the United States rescind this agreement not to seek to remove the defendant because of the defendant's violation of a condition of this plea agreement, the defendant irrevocably waives his right to contest his removal from the United States under the Immigration and Nationality Act on the basis of his guilty plea and conviction in this case, but retains his right to notice of removal proceedings.
16.	The defendant has been represented by counsel and is fully satisfied that his attorney has provided competent legal representation. The defendant has thoroughly reviewed this Plea Agreement and acknowledges that counsel has advised him of the nature of the charge, any possible defense to the charge, and the nature and range of possible sentences.
17.	The defendant's decision to enter into this Plea Agreement and the defendant's decision to tender a guilty plea are freely and voluntarily made and are not the result of force or threats, assurances, promises, or representations other than the representations in this Plea Agreement. The United States has made no promises or representations to the defendant as to whether the Court will accept or reject this Plea Agreement. In signing this Plea Agreement, the defendant is not under the influence of any drug, medication, liquor, intoxicant or depressant, and is fully capable of understanding the terms and conditions of this Plea Agreement.
18.	The defendant agrees that, should the United States determine in good faith, during the period any Federal Proceeding is pending, that the defendant has failed to provide full cooperation, as described in Paragraph 12, or otherwise has violated any other provision of this Plea Agreement, the United States may notify counsel for the defendant in writing by personal or overnight delivery or facsimile transmission of its intention to void its obligations under this Plea Agreement (except its obligations under this paragraph), and the defendant shall be subject to prosecution for any federal crime including, but not limited to, perjury (18 U.S.C. § 1621), making a false statement or declaration (18 U.S.C. § 1001), making a false statement or declaration in grand jury or court proceedings (18 U.S.C. § 1623), obstruction of justice (18 U.S.C. § 1503), contempt (18 U.S.C. §§ 401-402), and any Relevant Offense. The defendant agrees that in any such prosecution the United States may use against the defendant information provided by the defendant to the United States, federal grand juries, or courts. The defendant may seek court review of any determination made by the United States under this paragraph.
19.	This Plea Agreement constitutes the entire agreement between the United States and the defendant concerning the disposition of the criminal charge in this case. This Plea Agreement cannot be modified except in writing signed by the United States and the defendant.
20.	A facsimile signature shall be deemed an original signature for the purpose of executing this Plea Agreement.
I have consulted with my attorney and fully understand all my rights with respect to the offense charged in the pending Information. Further, I have consulted with my attorney and fully understand my rights with respect to the provisions of the U.S.S.G. I have read this Plea Agreement and carefully reviewed every part of it with my attorney. I understand this Plea Agreement and I voluntarily agree to it.
I am the attorney representing PATRICK STAINTON. I have fully explained to him his rights with respect to the offense charged in the pending Information. Further, I have reviewed the provisions of the U.S.S.G. that may apply in this case. I have carefully reviewed every part of this Plea Agreement with him. To my knowledge, his decision to enter into this Plea Agreement is an informed and voluntary one.


United States v. Mendoza, No 06-2999.
A jury found José Mendoza guilty of distributing amphetamine in violation of 21 U.S.C. § 841(a)(1). Mendoza challenges the sufficiency of the government’s evidence against him and the district court’s procedure for identifying alternate jurors. We affirm.
At the beginning of his trial on the charge of distributing amphetamine in violation of 21 U.S.C. § 841(a)(1), the district court informed counsel that it intended to select 16 tentative jurors to hear the evidence and, after closing arguments, designate four at random to be the alternates. During voir dire, the district court noted that this system "seems to work very well for everybody, and it has been in use here for close to 25 years." The procedure, however, happened to result in the clerk randomly designating the one Hispanic among the 16 tentative jurors as an alternate juror.
The jury then found Mendoza guilty.
Mendoza filed motions for judgment of acquittal and for a new trial under Federal Rules of Criminal Procedure 29 and 33, and the district court denied both motions.
Primarily, Mendoza challenges the district court’s practice of seating 16 jurors to hear the evidence presented and randomly selecting four individuals to be alternates after the presentation of evidence. Although we disapprove of this procedure, the error was harmless.
Fed. R. Crim. P. 24(c). We have said that Rule 24(c) contemplates selection of alternates "either by the jury-box system or by a struck-jury method in which defendants know the sequence in which members of the pool will be seated." United States v. Patterson, 215 F.3d 776, 780 (7th Cir. 2000), vacated on other grounds, 531U.S.1033 (2000).
Rather than seating the jury and alternates separately, the district court seated 16 tentative jurors with the intention of randomly naming four of them as alternates just prior to deliberations. There may well be benefits to selecting a jury in this manner.
But this is not the procedure prescribed by Rule 24, nor is this a matter entrusted to the sound discretion of the district court. Rule 24 assumes alternates will be selected separately and sequentially prior to the presentation of evidence and provides for additional peremptory challenges for the parties to use specifically against potential alternates. By delaying the identification of the alternates until after the parties presented evidence, the district court erred. As a result, Mendoza was unable to exercise peremptory challenges specifically against alternate jurors. See Fed. R. Crim. P. 24(c)(4).
Notwithstanding the logic of this practice and its vintage in the district court, we must join with our sister circuits in "encouraging strict adherence" to the rule, and we now request that the district court discontinue its current practice.
Deviation from the commands of Rule 24 requires reversal only if the error affects the defendant’s substantial rights. See Fed. R. Crim. P. 52(a). We held in Patterson that generally the loss of a peremptory challenge does not constitute the deprivation of a substantial right. Only if the loss has a "substantial and injurious effect or influence in determining the jury’s verdict" does the loss of a peremptory challenge amount to reversible error.
Because peremptory challenges exist principally to safeguard the Sixth Amendment’s guarantee of trial by an impartial jury,to prevail, Mendoza must demonstrate that the jury was not impartial.
Mendoza does not claim they were), there is no constitutional injury. United States v. Phillips, 239 F.3d 829, 842 (7th Cir. 2001).
Furthermore, Mendoza is not entitled to any Hispanics on the jury, see Taylor v. Louisiana, 419 U.S. 522, 538 (1975), nor by implication is he entitled to any one individual juror.
Finally, Mendoza presents no evidence (other than the fact of conviction, which is insufficient) to suggest that the jury was not impartial. The error was therefore harmless.