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Monday, January 31, 2005

Ind. Decisions - 7th Circuit posts four today

Fort, Vanesse v. CW Keller Trucking (ND Ind.,Robert L. Miller, Jr., Chief Judge)

Before COFFEY, ROVNER, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Carolina Casualty intervened in Vanesse Fort’s wrongful death action, seeking a declaratory judgment that it had no duty to provide coverage for any judgment rendered against its insured, C.W. Keller Trucking, Inc., in the wrongful death case. The district court denied Carolina Casualty the requested relief, finding that the federally-mandated MCS-90 endorsement attached to its policy was applicable. We agree and, therefore, affirm.
O'Sullivan, Gerald v. City of Chicago (ND Ill.)
Before COFFEY, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. The plaintiffs in the two actions now before us are current and former lieutenants in the Chicago Police Department who were denied promotion to captain. They filed suit against the City of Chicago (“City”) to enforce a consent decree entered in 1983 that required the City of Chicago to make hiring and promotion decisions without reference to an individual’s political affiliation. The City moved to dismiss the complaints on the ground that the plaintiffs lacked standing to enforce the decree. The district court granted the motion to dismiss, and the plaintiffs appealed. We now reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.
Davis, Thomas P. v. G.N. Mortgage Corp (ND Ill.)
Before COFFEY, KANNE, and EVANS, Circuit Judges.
COFFEY, Circuit Judge. On September 9, 1999, Thomas P. Davis and Cathy M. Davis obtained a $288,000 adjustable rate mortgage (“ARM”) from the G.N. Mortgage Corporation (“GN”) for the purpose of refinancing prior, non-business personal debts which was to be secured by their home in Manhattan, Il. A few months later, GN sold the note to Countrywide Home Loans, Inc. (“Countrywide”). The Davises paid off the 30-year ARM from GN less than three years later, on February 20, 2002, and at that time were assessed over $12,000 in penalties pursuant to the terms of a five-year prepayment penalty rider included in the mortgage document. The Davises objected to the penalty and filed a diversity suit against GN and Countrywide, alleging that the prepayment penalty agreement was fraudulently obtained, that enforcement of the penalty constituted a breach of contract and that the penalty violated the Illinois Interest Act, 815 ILCS 205/1 et seq., and the Illinois Consumer Fraud Act, 815 ILCS 505/1 et seq. The core of the Davises’ claim is that the parties had agreed to a twentyfour month prepayment rider, but that GN had nevertheless fraudulently induced them into signing one that provided for a penalty if the loan was paid before sixty months had elapsed. The district court granted the defendants-appellees’ motions for summary judgment on each of the Davises’ legal claims, and the Davises appealed. We affirm.
Sanders, William A. v. Cotton, Zettie (ND Ind., Allen Sharp, Judge)
Before COFFEY, RIPPLE, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. William Sanders was convicted of murder and attempted murder by an Indiana jury and sentenced to consecutive terms of 40 and 25 years’ imprisonment, respectively. After his conviction and sentence were affirmed on direct appeal, Sanders filed a post-conviction petition in state court, claiming that the jury instructions did not correctly state the burden of proof for murder, attempted murder, voluntary manslaughter, and attempted voluntary manslaughter, and that his appellate counsel was ineffective for not challenging on direct appeal the trialcourt’s refusal to submit a jury instruction that would have correctly stated the burden of proof. Sanders’s petition was denied by the trial court and the state appellate court, and the Supreme Court of Indiana denied his petition to transfer.

Sanders then filed a petition for a writ of habeas corpus in federal court pursuant to 28 U.S.C. § 2254, arguing that his due process rights were violated when the jury instructions did not correctly state the burden of proof and that his appellate counsel was ineffective for not challenging the trial court’s refusal to submit a jury instruction that would have correctly stated the burden of proof. The district court denied Sanders’s petition, and he now appeals that decision. We reverse. * * *

III. Conclusion. Because Sanders’s federal rights to due process and effective assistance of appellate counsel were violated, we REVERSE the district court’s denial of Sanders’s habeas corpus petition and REMAND with directions to grant the writ unless the State elects to retry Sanders.

[Note: This 19-page opinion covers a number of points important to those practicing criminal law in Indiana.]

Posted by Marcia Oddi on January 31, 2005 02:36 PM
Posted to Ind. (7th Cir.) Decisions