Below are the 12 applicants for Judge Gold's seat:
Jerald Bagley
Beatrice Butchko
Marina Garcia Wood
Brian Gilchrist
Robert Levenson
Peter Lopez
Caroline Heck Miller
John J. O'Sullivan
Robin Rosenbaum
Barry Seltzer
William Thomas
John Thornton, Jr.
UPDATE -- I fixed the initial post in which I initially listed the applicants for Marshal. Here they are:
Gwendolyn Boyd
Darin Cooper
James Higgins
Eben Morales
Hector Pesquera
Amos Rojas, Jr.
Michael Roy
David Say, Jr.
G. Wayne Tilman
John F. Timoney
Chadwick E. Wagner
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Tuesday, June 21, 2011
Monday, June 20, 2011
Back to work...
I see that the good professor did a good job last week at the conn.
Some good news to report -- Judge Bob Scola will have his hearing this Wednesday, June 22, 2011 at the Dirksen Senate Office Building, Room 226, at 2:30 p.m. This is good news and it's good to see that his nomination is moving relatively quickly.
Looks like I have some light reading to do now that I'm back -- Judge Carnes issues two lengthy and significant opinions last week -- United States v. Hill and Johnson v. Dept of Corrections(163 pages and 69 pages). Hill is a mortgage fraud case with lots of twists and turns. Here's a quick summary from Business Week:
But the three-judge panel soundly rejected his arguments in a scathing 163-page opinion that traced the plot from its inception to its downfall. The decision painstakingly recounted and then dismissed almost every objection filed by Hill and the others during the 31-day trial, which involved more than 100 witnesses and thousands of pages of documents.
"Without Hill there would have been no conspiracy, no massive amount of mortgage fraud resulting from it, and no ruined lives in the wake of it," read the opinion. "He bore the greatest responsibility for the massive crime and deserved the longest sentence."
Interestingly, Carnes ruled for a state death row habeas petitioner in Johnson based on ineffective assistance of counsel back from 1980. From the intro:
Earlier this year the Supreme Court reminded lower federal courts that when the state courts have denied an ineffective assistance of counsel claim on the merits, the standard a petitioner must meet to obtain federal habeas relief was intended to be, and is, a difficult one. Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786 (2011). The standard is not whether an error was committed, but whether the state court decision is contrary to or an unreasonable application of federal law that has been clearly established by decisions of the Supreme Court. 28 U.S.C. § 2254(d)(1). As the Supreme Court explained, error alone is not enough, because “[f]or purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law.” Harrington, ___ U.S. at ___, 131 S.Ct. at 785 (quotation marks omitted). And “even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id., 131 S.Ct. at 786.
When faced with an ineffective assistance of counsel claim that was denied on the merits by the state courts, a federal habeas court “must determine what arguments or theories supported or, [if none were stated], could have supported, the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Id., 131 S.Ct. at 786. So long as fairminded jurists could disagree about whether the state court’s denial of the claim was inconsistent with an earlier Supreme Court decision, federal habeas relief must be denied. Id., 131 S.Ct. at 786. Stated the other way, only if “there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme] Court’s precedents” may relief be granted. Id., 131 S.Ct. at 786.
Even without the deference due under § 2254, the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), standard for judging the performance of counsel “is a most deferential one.” Harrington, ___ U.S. at ___, 131 S.Ct. at 788. When combined with the extra layer of deference that § 2254 provides, the result is double deference and the question becomes whether “there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id., 131 S.Ct. at 788. Double deference is doubly difficult for a petitioner to overcome, and it will be a rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding. This is one of those rare cases.
Some good news to report -- Judge Bob Scola will have his hearing this Wednesday, June 22, 2011 at the Dirksen Senate Office Building, Room 226, at 2:30 p.m. This is good news and it's good to see that his nomination is moving relatively quickly.
Looks like I have some light reading to do now that I'm back -- Judge Carnes issues two lengthy and significant opinions last week -- United States v. Hill and Johnson v. Dept of Corrections(163 pages and 69 pages). Hill is a mortgage fraud case with lots of twists and turns. Here's a quick summary from Business Week:
But the three-judge panel soundly rejected his arguments in a scathing 163-page opinion that traced the plot from its inception to its downfall. The decision painstakingly recounted and then dismissed almost every objection filed by Hill and the others during the 31-day trial, which involved more than 100 witnesses and thousands of pages of documents.
"Without Hill there would have been no conspiracy, no massive amount of mortgage fraud resulting from it, and no ruined lives in the wake of it," read the opinion. "He bore the greatest responsibility for the massive crime and deserved the longest sentence."
Interestingly, Carnes ruled for a state death row habeas petitioner in Johnson based on ineffective assistance of counsel back from 1980. From the intro:
Earlier this year the Supreme Court reminded lower federal courts that when the state courts have denied an ineffective assistance of counsel claim on the merits, the standard a petitioner must meet to obtain federal habeas relief was intended to be, and is, a difficult one. Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786 (2011). The standard is not whether an error was committed, but whether the state court decision is contrary to or an unreasonable application of federal law that has been clearly established by decisions of the Supreme Court. 28 U.S.C. § 2254(d)(1). As the Supreme Court explained, error alone is not enough, because “[f]or purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law.” Harrington, ___ U.S. at ___, 131 S.Ct. at 785 (quotation marks omitted). And “even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id., 131 S.Ct. at 786.
When faced with an ineffective assistance of counsel claim that was denied on the merits by the state courts, a federal habeas court “must determine what arguments or theories supported or, [if none were stated], could have supported, the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Id., 131 S.Ct. at 786. So long as fairminded jurists could disagree about whether the state court’s denial of the claim was inconsistent with an earlier Supreme Court decision, federal habeas relief must be denied. Id., 131 S.Ct. at 786. Stated the other way, only if “there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme] Court’s precedents” may relief be granted. Id., 131 S.Ct. at 786.
Even without the deference due under § 2254, the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), standard for judging the performance of counsel “is a most deferential one.” Harrington, ___ U.S. at ___, 131 S.Ct. at 788. When combined with the extra layer of deference that § 2254 provides, the result is double deference and the question becomes whether “there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id., 131 S.Ct. at 788. Double deference is doubly difficult for a petitioner to overcome, and it will be a rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding. This is one of those rare cases.
Friday, June 17, 2011
Set a course for the Eleventh Circuit!
Judge Seitz entered a $16.7 million judgment predicated on fraud in the inducement and negligent misrepresentation for Carnival Cruise Lines, represented by Greenberg Traurig and Fowler Rodriguez, against Rolls-Royce PLC. The suit is over a new high-tech steering and propulsion system appurtenant to the Queen Mary II.
The jury had also awarded $8 million for breach of an implied warranty of workmanlike performance, but Judge Seitz granted the motion by Rolls-Royce, represented by Black Srebnick et al., for judgment on that claim. The jury rejected Carnival’s claims for breach of both ordinary and specific warranties and for unfair trade practices.
Newspaper articles almost never give either the complete story or a case number, but I found it after abusing D.O.M.’s PACER account just a little bit. The verdict form is 10 pages long and reads a lot like an IRS 1040. As far as I can tell from that document and Judge Seitz’s order, the jury thought Rolls-Royce materially lied about the new technology. I know, I know. How is that not barred by the economic loss rule? According to the order, “Rolls-Royce ignores the fact that the parties did not actually have a contract.” Rather, Carnival bought the ship from a shipbuilder who bought the system from Rolls-Royce. I may be entirely out-of-date on this since it’s been a very long time since I did this kind of thing, but I think there’s a good argument that the economic loss rule applies regardless of whether a contract action lies against any particular defendant. That will be the Eleventh’s problem, I guess. Issues like this almost make me miss commercial litigation. Reviewing the 424-entries-long docket doesn’t.
The jury had also awarded $8 million for breach of an implied warranty of workmanlike performance, but Judge Seitz granted the motion by Rolls-Royce, represented by Black Srebnick et al., for judgment on that claim. The jury rejected Carnival’s claims for breach of both ordinary and specific warranties and for unfair trade practices.Newspaper articles almost never give either the complete story or a case number, but I found it after abusing D.O.M.’s PACER account just a little bit. The verdict form is 10 pages long and reads a lot like an IRS 1040. As far as I can tell from that document and Judge Seitz’s order, the jury thought Rolls-Royce materially lied about the new technology. I know, I know. How is that not barred by the economic loss rule? According to the order, “Rolls-Royce ignores the fact that the parties did not actually have a contract.” Rather, Carnival bought the ship from a shipbuilder who bought the system from Rolls-Royce. I may be entirely out-of-date on this since it’s been a very long time since I did this kind of thing, but I think there’s a good argument that the economic loss rule applies regardless of whether a contract action lies against any particular defendant. That will be the Eleventh’s problem, I guess. Issues like this almost make me miss commercial litigation. Reviewing the 424-entries-long docket doesn’t.
Quit shooting your mouth off
Judge Marcia Cooke drew the lawsuit sponsored by the Brady Center challenging a Florida law that purports to circumscribe physicians’ conversations about guns. The law is part of a national push by the NRA for such laws in a bunch of states. We are, of course, the first to have one. Even West Virginia voted against it. (They’re trying again.) From the complaint, filed by D.C.’s Ropes & Gray and Miami’s Astigarraga Davis with the Brady Center:Specifically, the Physician Gag Law expressly restricts health care practitioners, in certain vaguely-defined circumstances, from asking patients questions related to gun safety or recording information from those conversations in patients’ medical records, on penalty of harsh disciplinary sanctions, including fines and permanent revocation of their licenses to practice medicine.Dr. Michael Hirsh, head surgeon at UMass Memorial Children’s Medical Center, sponsored a resolution by the Massachusetts Medical Society opposing such legislation up there. He seems to think “Florida” is short for floridly insane:
On the Florida law, he said, “I just don’t want to see this wave of stupidity come anywhere where sane people might understand this is going to affect kids.”
Wednesday, June 15, 2011
Welcome back. Your dreams were your ticket out.
A pot smuggler who skipped the country in 1979 got five years. This is big news today, I guess because 31 years is a long time to be gone, only to find yourself back in front of Judge King. New courtroom, though. New building, too. Named for him, you know.
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