10th Circuit holds reduction of sentence does not restart habeas clock; affirms conviction for interfering with a flight crew; holds challenge to mandatory crime of violence sentencing guideline is untimely; re...
Brigham Young University J. Reuben Clark Law School
Quary sought review of the dismissal of his habeas petition for lack of jurisdiction. The panel denied review holding sentence reductions under 28 USC 3582(c)(2) are not new judgments which restart the habeas clock as the resentencing does not impair the original judgment but instead allows for a new reduced guideline range to be used to analyze the requested reduction. The panel noted it joined the three circuits to rule on the issue in rejecting Quary’s argument.
Lynch appealed his conviction for violating 49 USC 46504 and his sentence. The panel affirmed. It held 46504 is a general intent crime because there is no description of a mens rea, other circuits have also held it to be general intent crime and reading a specific intent requirement would undermine congressional intent to have safe flying conditions. It held 46504 is not overbroad or vague as it is a valid time place and manner restriction that only applies in the airplane during flight when the speech or conduct involved causes interference with flight crew doing their duties and Lynch’s conduct of unwanted touching and kissing of an attendant, yelling and threating a lawsuit which caused another attendant to move into first class and the pilot to come out of the cockpit is well within the kind of behavior prohibited by 46504. It affirmed the sentence holding that lynch challenged the factual assertions of the prosecution and offered a defense of not guilty, which is inconsistent with being eligible for acceptance of responsibility reduction.
Stevens appealed his threatening communications convictions arguing his statements were not true threats. The panel affirmed holding that a reasonable person could conclude that specific threats to a Tulsa police officer and other specific people such as police officers’ family members and a judge that they would die, be executed, or get a bullet though the officer’s brain which were called into the Tulsa Police Department complaint line were true threats. It held that politically motivated speech does not shield true threats and there was no evidence the Tulsa Police Department knew Stevens was in Connecticut when he called or that he lacked the mean to come to Tulsa to carry out his threats.
Greer appealed the denial of his challenge to his sentence arguing the mandatory guideline on violent crimes was unconstitutional. The panel affirmed holding The United States Supreme Court has not recognized a right to challenge mandatory sentencing guidelines let alone recognized a right to have a new sentencing hearing and thus Greer’s challenge is untimely under AEDPA. The panel noted this is consistent with the decisions of all circuits that have addressed the issue.
Spring Creek Coal Company v McLean et al.
Spring Creek petitioned for review of the decision granting McLean survivor black lung benefits. The panel denied the petition. It held that Spring Creek’s challenge to 20 CFR 718.305(b)(2)’s standard for determining if benefits should go to a surface coal mine worker have been rejected in the circuit’s Antelope coal decision and the 7th Circuit decisions which provided the legal rationale for the regulation and which were discussed in Antelope Coal and the standard adopted in 305(b)(2) is reasonable and requires a determination the miner is regularly exposed to coal dust and whether the exposure was substantially similar to exposure in underground mines. It also held the administrative law judge correctly evaluated the medial evidence including giving no weight to Spring Creek’s experts as they provided no evidence coal dust did not play a role in McLean’s husband’s black lung disease.
Citizen Potawatomi Nation v State of Oklahoma
Oklahoma appealed the confirmation of an arbitration award in favor of Nation. The panel remanded with instructions to vacate the award. It held the parties gaming compact had an arbitration clause which required de novo review of arbitration awards, that such clauses were held to violate the federal Arbitration Act by the united states Supreme Court and the policies in the Indian Gaming Regulation Act do not change eh outcome and the de novo review provision was material to the arbitration clause in that arbitration was conditioned on de novo federal court review and sovereign immunity waivers were also conditioned on the de novo review provisions and thus the entire arbitration provision must be severed and award vacated.
Redmond et al. v Crowther et al.
Redmond appealed the summary judgment based on qualified immunity granted to Crowther and the other two defendants. The panel affirmed. It held that Redmond did not prove an excessive force violation because tear gas was used to capture a noncompliant prisoner, Redmond and other prisoners were exposed through a ventilation system which was negligent at most particularly as the officer ordering the use of gas did not see the intake vents and gas went into the prison administrative areas negating any intent to gas all prisoners in the facility, and the use of the gas was reasonable given the confided space where the noncompliant prisoner was and the significant risks to the guards if other approaches were used. It held that any right to not be exposed to gas in these circumstances was not well established given the lack of precedent on inadvertent exposure of compliant prisoners. It affirmed as to medical indifference as prisoners at risk were vacated form their cells as soon as practical given the need to secure the noncompliant prisoner and there was no precedent requiring evacuation from cells instead of airing out the affected area. It held the claims arising from discouragement form seeking treatment failed as they were inadequately briefed and in any event, no evidence of serious injury was presented. It held Redmond failed to prove his other constitutional claims as insults are not enough and there is no precedent requiring training on avoiding incidental exposure to tear gas. It finally rejected the Utah law claims as negligence is insufficient to prove a constitutional violation and prospective relief is unavailable as policy now requires consideration of the vent system and thus a repeat of the incident is purely speculative.