Opinions

The following 7^th Circuit Court opinions were posted after IL Deadline Friday and Sunday:
Earlene Branch Peterson v. William P. Barr
20-2252
Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. Chief Judge Jane Magnus-Stinson.
Civil. Vacates the preliminary injunction issued by the Southern District Court halting the federal execution of Daniel Lee. Finds the plaintiffs’ APA claim lacks any arguable legal basis and is therefore frivolous. Also finds section 16-90-502(e)(1) of the Arkansas Code is irrelevant to the case at hand and that the district court judge was wrong to insert it into the case.

The following Indiana Supreme Court opinion was posted after IL deadline Thursday:
Tammi Clark, as personal representative of the Estate of Kandace Pyles, deceased v. Samer Mattar, M.D.
20S-CT-109
Civil tort. Affirms the Indiana Court of Appeals’ reversal and remand for a new trial for Tammi Clark against Dr. Samer Matter. Finds that an unwilling juror should have been struck for cause in Marion Superior Court and that there was prejudice because Clark was forced to exhaust her last peremptory challenge and accept an objectionable juror. Justice Mark Massa concurs in part, dissents in part. Justice Geoffrey Slaughter dissents.

The following 7^th Circuit Court of Appeals opinion was posted after IL deadline Wednesday:
C.Y. Wholesale, Inc., et al. v. Eric Holcomb, et al.
19-3034
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Senior Judge Sarah Evans Barker.
Civil. Vacates the injunction prohibiting the state of Indiana from enforcing its criminal prohibition on the manufacture, delivery or possession of smokable hemp under Indiana Code § 35-48-3-10.1. Finds the district court’s injunction swept too broadly. Remands for proceedings.

Indiana Court of Appeals
Xavier Wesley Day v. State of Indiana (mem. dec.)
19A-CR-2997
Criminal. Affirms Xavier Day’s 40-year sentence for conviction of Level 1 felony murder. Finds the St. Joseph Superior Court did not commit fundamental error in instructing the jury.

7^th Circuit Court of Appeals
Monwell Douglas v. Faith Reeves
18‐2588
Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division.
Chief Judge Jane Magnus-Stinson.
Civil. Affirms the Indiana Southern District Court’s grant of summary judgment to Faith Reeves against Monwell Douglas, an Indiana prisoner who claimed Reeves retaliated against him for activity protected by the First Amendment. Finds no reasonable jury could conclude that Reeves inflicted deprivations on Douglas likely to deter a person of ordinary firmness from engaging in First Amendment activity.

Indiana Court of Appeals
Robert Shorter v. State of Indiana
19A-CR-2904
Criminal. Affirms Robert Shorter’s convictions for Level 2 felony dealing in methamphetamine, Level 3 felony dealing in a narcotic drug, Level 3 felony conspiracy to commit dealing in a narcotic drug and Level 3 felony aiding, inducing or causing dealing in methamphetamine. Finds that the evidence was sufficient to support the convictions. Also finds no error in the admission of evidence that would violate the Fourth Amendment or Article 1, Section 11 of the Indiana Constitution. Judge Rudolph Pyle dissents with separate opinion.

Indiana Court of Appeals
Thomas R. Ysursa and Becker, Hoerner, Thompson & Ysursa, P.C. v. Frontier Professional Baseball, Inc.
20A-CT-49
Civil tort. Affirms the Marion Superior Commercial Court’s denial of the Ysursa parties’ motion to dismiss a lawsuit asserting legal malpractice over its involvement in litigation stemming from a failed bid to locate a Frontier Professional Baseball League team in Kokomo. Finds the commercial court did not err in finding there were sufficient minimum contacts between Ysursa and Indiana to establish personal jurisdiction, and the ruling was not unreasonable.

Indiana Supreme Court
Marcus Lee McCain v. State of Indiana
20S-CR-281
Criminal. Affirms Marcus Lee McCain’s 45-year sentence for his conviction of voluntary manslaughter in the killing of Marcel Harris. Finds the Lake Superior Court did not abuse its discretion in imposing the sentence. Also finds that under Indiana Appellate Rule 7(B), the sentence is not inappropriate in light of the nature of the offense and McCain’s character.

Indiana Supreme Court
State of Indiana v. Wesley Ryder
20S-CR-435
Criminal. Reverses an order of the Marion Superior Court suppressing evidence of a blood draw from an off-duty police trainee who was charged with multiple offenses including operating while intoxicated following a wrong-way crash on Interstate 465 in Indianapolis. Finds that the judge who authorized the warrant for the blood draw certified probable cause contemporaneously and in writing, and that even if she had not, the warrant was still valid under Indiana’s substantial compliance filing doctrine. Remands for proceedings. Justice Slaughter concurs in part without separate opinion.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Thursday.
Carmine Greene v. Westfield Insurance Company
19-2260
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Philip P. Simon.
Civil. Affirms summary judgment for Westfield Insurance in a lawsuit brought by Carmine Greene and neighbors of the VIM Recycling property in Elkhart, seeking an order that Westfield pay a $50.56 million environmental pollution damages judgment entered against VIM. Finds that summary judgment for Westfield was proper because two coverage exceptions in the insurance policy apply.

The following 7th Circuit Court of Appeals opinion was posted after IL daily deadline Wednesday.
David L. Day, Jr. v. United States of America
18-2398
Appeal from the U.S. District Court for the Southern District of Indiana, Indianapolis Division
Judge Tanya Walton Pratt
Criminal. Vacates the denial of David Day’s pro se motion for relief from his 92-month sentence under 28 U.S.C § 2255. Rules the U.S. District Court for the Southern District of Indiana erred by denying the motion without an evidentiary hearing to hear Day’s arguments that his private attorneys were constitutionally ineffective for advising him to reject a favorable plea offer. Notes that to have his motion granted, Day will have to show a “reasonable probability” that he would have received a sentence lower than 92 months. Remands for an evidentiary hearing.

The following Indiana Supreme Court decision was posted after IL deadline Tuesday.
Brian E. Hardin v. State of Indiana
20S-CR-418
Criminal. Affirms in a 3-2 decision Brian Hardin’s conviction and 22-year aggregate sentence for conviction of possession and dealing methamphetamine and the denial of his motion to suppress evidence found in a search of his truck. The majority — justices Christopher Goff, Mark Massa and Geoffrey Slaughter — find the search was not unreasonable under Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005). Justice Steven David and Chief Justice Loretta Rush dissent and would grant the motion to suppress and remand for a new trial in Morgan Circuit Court. Slaughter in a separate concurrence questions the test developed under Litchfield.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Monday.
Tyrus McNair v. USA
18-2541
Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. Judge William Lee.
Civil. Affirms the Northern District Court’s denial of Tyrus McNair’s request for resentencing. Finds that McNair did not act diligently in making his request for relief.

The following 7^th Circuit Court opinion was posted after IL Deadline on Friday.
USA v. Jerry J. Jones
19-1644
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Richard Young.
Criminal. Vacates Jerry Jones’ revised 840-month sentence for conviction of two carjackings, an armed bank robbery, and using firearms during those crimes of violence. Finds that the U.S. District Court for the Southern District of Indiana did not sufficiently justify the extent of its deviation from Jones’ effective guidelines range of 348–390 months. Remands for resentencing.

Indiana Court of Appeals
Reanna Lopez-Smith v. State of Indiana (mem. dec.)
19A-CR-3018
Criminal. Affirms Reanna Lopez-Smith’s convictions in Marion Superior Court of Class A misdemeanor resisting law enforcement and Class B misdemeanor disorderly conduct. The state presented sufficient evidence to negate her affirmative defense of protected political speech.

Indiana Court of Appeals
Clark-Floyd Landfill, LLC v. Ricky Gonzalez, Yvonne Gonzalez, Robert Scoles, and Tamara Scoles, on Behalf of Themselves and All Others Similarly Situated
19A-CT-2680
Civil tort. Affirms the Clark Circuit Court’s certification of Ricky Gonzalez, Yvonne Gonzales, Robert Scoles, and Tamara Scoles’ complaint against Clark Floyd Landfill, LLC as a class action. Finds, among other things, that the trial court did not apply an incorrect legal standard in determining whether to certify the class action. Also finds the trial court’s adoption of the Homeowners’ class definition is supported by substantial evidence.

Valonte Deshoun Smith v. State of Indiana (mem. dec.)
19A-CR-2333
Criminal. Affirms Valonte Smith’s aggregate 12-year sentence for conviction of Level 3 felony rape. Finds the Madison Circuit Court did not abuse its discretion in denying admission of certain evidence. Finds Smith has failed to meet his burden that the deputy prosecutor committed misconduct and that the trial court did not abuse its discretion in instructing the jury. Also finds sufficient evidence to support the conviction, that Smith did not receive ineffective assistance of counsel and that his sentence is not inappropriate.

Indiana Court of Appeals
Mary Eve Kassen Moriarty v. Cathereine C. Moriarty, et al.
19A-PL-02342
Civil plenary. Affirms the Hamilton Superior Court’s order entering judgment in favor of daughters Catherine C. Moriarty and Paula A. Bowers against Mary Eve Kassen Moriarty on their claim to reject the probate of the purported last will and testament of William J. Moriarty on the basis of lack of testamentary capacity and/or undue influence and on their claim of tortious interference with inheritance. Finds the trial court did not abuse its discretion by permitting the daughters to reopen their case-in-chief. Finds the trial court’s legal conclusions that the purported will is invalid and its conclusions regarding tortious interference with inheritance are not clearly erroneous.

Indiana Supreme Court
In The Matter of Steven T Fulk
19S-DI-00277
Attorney discipline. Disbars Indianapolis attorney Steven Fulk effective immediately after finding that he committed attorney misconduct by neglecting a client’s case, converting an employee’s tax withholdings for his personal use, and failing to cooperate with the disciplinary process.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Thursday
USA v. Terrance Brasher
18-1997
Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. Judge Tanya Walton Pratt.
Criminal. Affirms Terrance Brasher’s sentence of life in prison for conviction of engaging in a conspiracy to distribute narcotics. Finds no merit to any of Brasher’s arguments against his conviction and sentence, including that there was a fatal variance between the conspiracy as charged and the proof at trial, among others.