Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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Avoidance action; FedRBankrP 7001(a); 11 USC §§ 544-553; Appellate jurisdiction in bankruptcy cases; “Final decisions”; 28 USC §§ 1291 & 158(d)(1); Interlocutory orders; Jurisdiction under § 1292, § 158(d)(2), or FedRCivP 54(b)
The court held that it lacked jurisdiction to review the district court’s affirmance of the bankruptcy court’s denial of plaintiffs-creditors’ summary judgment motion in their action against defendant-Max Salas (the debtor’s father) to avoid transfers and recover property. Plaintiffs were the parents of two tenants who died in a fire on a property the debtor (Len) owned. They sued both Len and Max for wrongful death and were awarded multimillion-dollar verdicts. Both Max and Len filed for bankruptcy. In Max’s case, the bankruptcy court ruled that he “was entitled to the unlimited homestead exemption over the property, finding” he had both the legal and beneficial interests in it. The trustee in Len’s case then sold his estate’s interest in the trustee’s avoidance and recovery rights as to the property. Plaintiffs purchased that interest at auction. They then sued Max to avoid transfers and recover property. The bankruptcy court denied their motion for summary judgment and granted Max summary judgment only on the fraudulent conveyance claim. The district court granted plaintiffs leave to file an interlocutory appeal, affirmed the bankruptcy court’s ruling, and remanded to the bankruptcy court. It did not certify the issue for appeal or designate the order as final. Although plaintiffs’ appeal was timely, “the parties did not seek to certify the appeal before this court.” The court explained that it lacked jurisdiction to review the district court’s ruling under either § 1291 or § 158(d)(1), which give appeals courts jurisdiction over “final decisions.” When the district court remanded the case to the bankruptcy court, several claims remained. Thus, the order was not final under § 1291. And § 158(d)(1) did not support jurisdiction where the district court’s order “did not conclusively resolve plaintiffs’ adversary proceeding.” The court also considered provisions granting jurisdiction over appeals from interlocutory orders (§ 1292, § 158(d)(2), and Rule 54(b)) but none of them conferred jurisdiction either where they all required certification. Dismissed for lack of jurisdiction.
Plea withdrawal; Second-degree murder by omission; Manslaughter; Malice; Felony murder by omission; First-degree child abuse; MCL 750.136b(2); People v Maison (Unpub); People v Welch (Unpub); Additional affirmative act
The court concluded that because “the facts supported a finding that defendant was guilty of the offense that he pleaded to [second-degree murder], the trial court did not abuse its discretion by denying [his] motion to withdraw his plea.” Also, it found that “the facts clearly satisfy the requirements of first-degree child abuse under MCL 750.136b(2).” Finally, it disagreed “that even if he were guilty of first-degree child abuse by omission, a felony-murder conviction would require an additional affirmative act.” The case arose from defendant’s neglect of his eight-year-old child, who died of starvation and malnutrition. He pled nolo contendere to second-degree murder. On appeal, he argued “that the trial court abused its discretion by denying his motion to withdraw his plea because first-degree child abuse and second-degree murder both require an affirmative act that seriously harmed the victim, and in this case, the facts merely indicated that the child’s death was caused by defendant’s omission or failure to act.” The court found that “the facts supported a finding that defendant was guilty of second-degree murder because there was evidence for each element of manslaughter, plus malice.” As to the elements of manslaughter, the facts and inferences “established that: (1) defendant had a legal duty to care for the child; (2) [he] knew of that duty because, in addition to it being common knowledge, CPS contacted [him] in the past regarding his care of the child; (3) [his] failure to care for the child was grossly negligent because the child was obviously extremely ill, as observed by multiple childcare and healthcare professionals, family members, and defendant himself; and (4) the child died of malnourishment caused by defendant’s neglect.” Thus, there was evidence for each manslaughter element. “There was also evidence—beyond the child’s proof of death—that supported an inference of malice. The child weighed just 31 pounds at the time of his death, despite being eight years old. He threw up frequently and would eat his own vomit and feces. He was discolored, smelled of urine, and had loose skin. He did not eat or drink for several days leading up to his death, and he had breathing problems on the night of his death. His declining health was obvious and graphic, occurring over a period of months. Defendant’s failure to feed the child or seek medical attention supported the inference that defendant intended ‘to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result.’” Thus, a sufficient factual basis supported his plea for second-degree murder. Affirmed.
Motion for relief from judgment; Good cause; MCR 6.508(D)(3)(a); Ineffective assistance of counsel; Actual prejudice; Sentencing; MCR 6.508(D)(3)(b)(iv); Validity of a second-degree murder sentence; People v Eads; People v Snow; Applicability of People v Beck; People v Motten
The court concluded that the trial court erred in denying defendant’s “motion for relief from judgment on the basis that he failed to establish good cause under MCR 6.508(D)(3)(a), and that he is entitled to resentencing for his second-degree murder conviction.” Thus, it reversed the trial court order denying his motion for relief from judgment, vacated his sentence for second-degree murder, and remanded for resentencing consistent with Eads. He was also convicted of assault with intent to rob while armed and felony-firearm. He “was sentenced to concurrent prison terms of 40 to 60 years for the second-degree murder conviction and 5 to 15 years for the assault with intent to rob while armed conviction, to be served consecutively to a two-year term” for felony-firearm. On appeal, defendant maintained “that he can establish good cause through ineffective assistance of counsel, and that the trial court made improper factual findings in the absence of an evidentiary hearing.” The court was not persuaded by his ineffective assistance of counsel arguments. In determining that he “failed to establish good cause, the trial court stated that ‘[a]ppellate [counsel] cannot be ineffective for failing to raise an issue that was unlikely to succeed on appeal or choosing to focus on arguments that had a greater likelihood of success.’” While he characterized “this statement as an improper factual finding, we note that the trial court’s observation is merely a statement of law.” Further, the court held that “the trial court did not err by determining that defendant could not prevail on his ineffective assistance of counsel claim.” But the court found that while he could not “demonstrate good cause on the basis of ineffective assistance of counsel, good cause is established based on the recent changes in the law with respect to the sentencing of juvenile offenders.” Under the principles announced in Eads, the court agreed that his second-degree murder sentence was invalid and that he was entitled to resentencing. However, it rejected his claim “that on remand, the trial court should be instructed to follow the rule announced in” Beck, noting that it held in Motten “‘that Beck’s holding is not retroactive on collateral review.’”
Sufficiency of the evidence; Aggravated stalking (MCL 750.411i); Making a terrorist threat (MCL 750.543m); “Unconsented contact” (MCL 750.411i(1)(f)); Phone calls to third parties; “Course of conduct” (MCL750.411i(1)(a)); “Separate noncontinuous” acts; Pobursky v Gee; Applicability of the “last antecedent” rule; Intent for purposes of MCL 750.543b(a)(iii); Jury instructions on unconsented contact; Other acts evidence; MRE 404(b); MRE 401; MRE 403; Prosecutorial misconduct; Step into the victim’s shoes argument; Plain error review; Sentencing; Scoring of OVs 4 & 19; MCL 777.34(1)(a) & (2); MCL 777.39(b)
The court held that there was sufficient evidence to support defendant’s aggravated stalking and making a terrorist threat convictions. It rejected his challenges to the jury instructions on unconsented contact and the admission of other acts evidence. While the prosecutor improperly “exhorted the jurors to step into the victim’s shoes[,]” the court found that reversal was unwarranted. Finally, it upheld the scoring of 10 points for OV 4 and 15 points for OV 19 in sentencing defendant. He was sentenced as a fourth-offense habitual offender to 5 to 25 years. The case arose from three phone calls he made in one morning related to his belief that a deputy (R) was harassing him. As to his aggravated stalking conviction, the court noted that “the statute does not require direct contact with another individual.” The contact at issue here was phone calls to third parties. The court concluded a “rational jury could find that the apparent intent behind defendant’s threatening phone calls was to have his threats passed along to [R] because defendant made the threatening phone calls to the courthouse, the city manager, and the 911 dispatcher, all of whom were likely to communicate with [R]. Notably, [his] call to 911 even directed the dispatcher to ‘tell him,’ almost certainly referring to [R], about how defendant was tired of being harassed and about defendant’s threat to use violence if he was harassed further.” In addition, the record reflected that his threats were communicated to R. Thus, “a rational jury could find that the phone calls constituted harassment of [R] because defendant’s threats in the phone calls were directed toward [R] such that defendant was harassing the deputy through those intermediaries.” As to the terrorist threat conviction, “a rational jury could infer that the intent of defendant’s threatened act was to intimidate or coerce the police in general, and [R] specifically, into allowing defendant to be in the park or otherwise stop enforcing the law against” him. As to his prosecutorial misconduct claim, the court held that “defendant’s substantial rights were not affected. The prosecutor’s remarks were made only in closing, were ‘relatively brief[,]’” and the trial court instructed the jury that the “‘lawyers’ statements and arguments are not evidence.’” Affirmed.
Ineffective assistance of counsel; Failure to request special jury instructions; Failure to object to the admission of other acts evidence
Holding that “defendant’s right to effective assistance of counsel was not violated,” the court affirmed his conviction of assaulting, resisting, or obstructing a police officer causing bodily injury requiring medical attention. He first argued that counsel was ineffective for failing to request special instructions about the deputy’s (R) “authority to arrest him and defendant’s right to resist an unlawful arrest.” The court agreed “that the jury instructions were lacking as they did not provide a rubric for determining whether [R’s] actions were lawful.” But it found that by “omitting an instruction on the lawfulness of the arrest and instead focusing on the circumstances of the arrest and defendant’s ability to comply, counsel capitalized on the vagueness of whether the command was lawful, without drawing the jury’s attention to a likely conclusion that it was lawful.” The court concluded that “even assuming that defense counsel’s failure to request special instructions was below an objective standard of reasonableness for effective assistance of counsel, defendant” failed to show that there was “a reasonable probability that it was outcome-determinative.” The court held that “defense counsel’s failure to request further jury instructions was not objectively unreasonable, and there was no reasonable probability of a different result had defense counsel requested the jury instructions.” As to the other acts evidence, the court concluded that some of it “was likely admissible regardless of whether defense counsel had objected.” It found that even “if some of the testimony may have been excluded had defense counsel objected, defense counsel had strategic reasons to refrain from objecting.” It noted that “many of the remarks were made in passing and it was reasonable trial strategy not to object when doing so could have drawn more attention to them—for example, [R’s] comment that defendant had made a previous threat against his life.” On the facts presented, the court could not “conclude that defense counsel’s failure to object to the admission of evidence of defendant’s prior bad acts was objectively unreasonable or that there was a reasonable probability that the jury would have acquitted” him had defense counsel objected.
Sentencing for failure to register as a sex offender; Procedural reasonableness of defendant’s term of supervised release; 18 USC § 3553(a) factors; Whether a district court may only consider a defendant’s mental illness for mitigation purposes; United States v Kluball (7th Cir); United States v Moses; 18 USC § 3661; Substantive reasonableness; Weight placed on the factor of defendant’s diagnosed mental illness history
The court held that the district court did not improperly focus on defendant-Roper’s mental health issues in imposing a 20-year term of supervised release, rejecting his argument that mental illness can only be used at sentencing “in the name of mitigation.” Roper is a convicted sex offender with three prior convictions for failing to register with state authorities. He pled guilty to a federal failure-to-register offense in this case. In addition to a 30-month prison sentence, the district court sentenced him to 20 years of supervised release, which was above the Guidelines but below the statutory maximum of lifetime supervision. Roper challenged the procedural and substantive reasonableness of his supervised release term, arguing that the district court erred by relying in part on his mental health issues. The court first noted that supervised release, rather than being a “punishment,” is instead “rehabilitative,” with consideration of “‘deterrence, incapacitation, and rehabilitation.’” Roper’s procedural reasonableness claim was based on the argument that “‘a defendant’s mental illness cannot justify extending a criminal sentence.’” He maintained that it can only be used to vary downward. The court rejected this argument, finding nothing in the statutory text supported it, and citing the Seventh Circuit’s holding in Kluball, that “‘the degree to which mental illness is deemed mitigating or aggravating, and the weight accorded that factor, lies within the sentencing judge’s broad discretion.’” Roper’s reliance on the analysis in Moses also failed. He could not “reconcile his mitigation-only approach with . . . § 3661, which dictates that ‘[n]o limitation shall be placed on the information concerning’ a defendant’s ‘background, character, and conduct’ that district courts ‘may receive and consider for the purpose of imposing an appropriate sentence.’” As to his substantive reasonableness challenge, Roper argued that the district court “placed too much weight” on the mental health factor. But the district court also considered other factors in making its decision. Its “concerns about Roper’s need for treatment, ‘poor . . . adjustment’ to rules in prison and while on supervision, deterrence, and public safety are ‘compelling’ justifications for a longer supervised-release term.” Affirmed.
Applications for asylum, withholding of removal, & protection under the Convention Against Torture (CAT); Rejection of a timely filed brief; Whether the Board of Immigration Appeals (BIA) abused its discretion when it departed from its own established rules & summarily dismissed petitioners’ appeal; 8 CFR § 1003.1(d)(2)(i)(E); Immigration judge (IJ)
On petition for review of the BIA’s denial of petitioners’ applications for asylum, withholding of removal, and CAT protection, the court held that by denying their applications based on the discrepancy between their attorney’s address on their brief and the address on the attorney’s appearance, it had “depart[ed] from established policies without articulating a reasoned basis for doing so,” and thus abused its discretion. The Department of Homeland Security initiated removal proceedings against petitioners, who are from El Salvador. An IJ denied their applications for asylum, withholding of removal, and CAT protection. They timely appealed to the BIA, which rejected their brief in support of their appeal because the address of their attorney as written on it was not consistent with an address that the attorney had given on a notice of appearance. Petitioners then resubmitted their brief, but the delay made it untimely. The BIA held that they “needed to re-file their brief with a ‘motion for consideration of [their] late-filed brief.’” They filed a third brief along with a motion to accept late filing. Six months later the BIA denied that motion and it later summarily dismissed the appeal based on their failure to file a separate brief or supporting statement when they said they would. The court explained that under § 1003.1(d)(2)(i)(E), the BIA may summarily dismiss an appeal where a petitioner indicates that “‘he or she will file a brief or statement in support of the appeal and, thereafter, does not file such brief or statement, or reasonably explain his or her failure to do so, within the time set for filing.’” It noted that the BIA here rejected the brief in support of the appeal based on the address discrepancy. But there is no requirement “in the BIA’s rules or procedures” that the address on the brief conform to the address on the attorney’s appearance. The addresses given here (a post office box and a physical address) were both ones “where the attorney could validly receive mail.” The court held that “by departing from established policies without articulating a reasoned basis for doing so, the BIA abused its discretion by refusing to accept petitioners’ brief.” The court granted the petition for review and reversed the BIA’s order rejecting their brief and its order summarily denying their appeal.
Adverse possession; Houston v Mint Group, LLC; 15-year period (MCL 600.5801(4))
Holding that all the elements of adverse possession were met, the court affirmed the trial court’s judgment awarding the disputed property to defendants. The parties “are next door neighbors who own adjacent beachfront properties.” The trial court determined “that the statutory time frame for possession began, even without tacking, when defendants” purchased their home in 1990. Plaintiffs primarily argued “that the time frame did not begin to run until the deck was installed, because the patio was not hostile or exclusive.” But this argument failed because “defendants’ exclusive use of the patio as their own, personal outdoor living space began in 1990 when they bought the house. [They] openly kept their barbeque and deck chairs on the patio and had exclusive control over, and financial responsibility for, the lamps on the patio. The patio was attached to [their] home, and, contrary to [plaintiff-]Darlene’s incredible and disproven testimony, was directly accessible from [their] home via a door and stairway installed sometime between 1990 and 1993. Defendants’ acts of possession were, therefore, open and notorious, and ‘of such a character as to indicate openly and publicly an assumed control or use as is consistent with the character of the premises in question.’” The court also concluded “the trial court reasonably found that the pathway between the parties’ homes that terminated at the stairs leading to the patio was far more consistent with defendants’ exclusive use than plaintiffs’.” In addition, defendants’ “testimony of their intent to hold the boundary line they perceived as being marked by the pillars and patio ledge, even if only based on innocent mistake, was . . . sufficient to establish hostility. In sum, [their] use of the patio, beginning in 1990, was ‘actual, visible, open, notorious, exclusive, continuous,’ and hostile for the requisite 15-year period.”