« Environment - Mandatory septic system inspections | Main | Indiana Decisions - Two today from the Supreme Court »

Tuesday, October 19, 2004

Indiana Decisions - 7th Circuit posts four today

Richmond, Michael v. Scibana, Joseph, Warden, Federal Correctional
Institution at Oxford, Wisconsin (WD Wis.)

Before BAUER, EASTERBROOK, and MANION, Circuit Judges.
EASTERBROOK, Circuit Judge. * * * The district court dismissed his petition because Richmond had never asked the Warden or anyone else at the Bureau of Prisons to place him in community confinement before the last 10% of his sentence and thus had not exhausted the administrative remedies available under 28 C.F.R. §§ 542.13 to 542.15. * * * Affirmed.
Owens, Anthony v. USA (SD Ind., Larry J. McKinney, Chief Judge)
Before POSNER, ROVNER, and WOOD, Circuit Judges.
POSNER, Circuit Judge. Anthony Owens filed a motion under 28 U.S.C. § 2255 to set aside his drug conviction and sentence because his trial lawyer fumbled what should have been a successful motion to suppress evidence seized pursuant to a warrant to search Owens’s house. The district court denied the motion, and Owens appeals. He is met at the threshold by our decision in Holman v. Page, 95 F.3d 481, 488-92 (7th Cir. 1996), which holds that a failure to make a Fourth Amendment objection to the admission of evidence, however meritorious the objection, cannot amount to ineffective assistance of counsel in a constitutional sense if the evidence was reliable, so that its admission, even if improper, created no risk that an innocent person would be convicted. Owens asks us to overrule Holman, noting its inconsistency with the case law of the other circuits and the long shadow cast over it by subsequent decisions of the Supreme Court. We need not consider his request unless we decide that his lawyer indeed booted a good Fourth Amendment claim, so let us begin with that question. * * *

The evidence was overwhelming that it was indeed Owens’s house in which the crack was found. The lawyer’s decision to bet his all on a denial of that fact and by doing so forfeit a compelling ground for excluding evidence essential to convict his client was therefore a blunder of the first magnitude. * * *

We conclude that Holman should be overruled, and we have therefore circulated this opinion to the full court in advance of publication, pursuant to 7th Cir. R. 40(e). A majority of the judges voted not to hear the case en banc. Judges Manion, Kanne, and Evans voted to hear the case en banc, and Chief Judge Flaum and Judge Williams did not participate in the consideration or decision of whether to hear the case en banc. REVERSED AND REMANDED

Smith, Wayne v. Qwest Comm Corp (ND Ill.)
Before CUDAHY, KANNE, and EVANS, Circuit Judges.
EVANS, Circuit Judge. In this case, we are asked to review a nationwide class certification, accompanied by an injunction against all competing class actions. The plaintiff class is made up of landowners whose property is subject to railroad rights of way, along which defendant telecommunications companies have installed fiber-optic cables without the landowners’ permission. * * * 1401. We reversed certification of a virtually identical class in Isaacs v. Sprint Corp., 261 F.3d 679 (7th Cir. 2001), observing that differences in state law concerning the scope of the railroads’ easements, along with differences in the various deeds themselves, would result in “a nightmare of a class action.” This time, though, the class has been certified for settlement only, which the settling parties insist eliminates the complications that made the class uncertifiable in Isaacs. The intervening parties—who represent statewide plaintiff classes already certified in Tennessee and Kansas—argue that the class still fails to meet the certification requirements of FED. R. CIV. P. 23(a) and (b). * * *

We agree with the intervenors that they are inadequately represented by the settling plaintiffs.1 We therefore VACATE the nationwide class certification and the district court’s injunction against competing class actions and REMAND the case to the district court for further proceedings. Costs are awarded to the Intervenors.

[at p. 5 of 11] CUDAHY, Circuit Judge, dissenting. It seems to me that the majority has entirely lost sight of the benefits of the federal court settlement that has been successfully negotiated here. The development involved here is the laying of a 36,000-mile network of transcontinental fiber-optic cables crossing many states to provide a national telecommunications grid. This installation of fiber-optic cables becomes part of the national communications infrastructure, having an important value for the national economy as well as for national security. Obviously, to the extent uniformity in treatment of affected landowners can be achieved, legal costs and costs of administration (ultimately charged to telecommunications users) can be reduced. The state-by-state treatment favored by the majority is likely to produce a nightmare of complexity, the inequitable treatment of landowners in different states and increased charges to telephone users everywhere. If a similar approach had been applied to the construction of the first transcontinental railroad, the Pony Express might still be galloping along.

USA v. Cellitti, Joseph (ND Ill.)
Before FLAUM, Chief Judge, and KANNE and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Joseph Cellitti pleaded guilty to possessing a firearm after sustaining a felony conviction, 18 U.S.C. § 922(g)(1), while reserving the right to challenge on appeal the district court’s denial of his motion to suppress evidence. We now vacate and remand. * * *

The testing of the keys in the lock of the Buick, and the impoundment and warrantless search of the car occurred as a direct result of the officers’ illegal seizure of the keys, and thus are fruits of the poisonous tree. The government has not argued that the police inevitably would have discovered the rifle in the Buick through any other means, and we must therefore conclude that the district court erred when it denied Cellitti’s motion to suppress the rifle. VACATED and REMANDED.

Posted by Marcia Oddi on October 19, 2004 01:12 PM
Posted to Indiana Decisions