Friday, April 02, 2010
Ind. Decisions - 3 Indiana decisions today from 7th Circuit
State and local offices are closed today, but the feds are in operation. The 7th Circuit has issued three opinions today, all out of Indiana.
In US v. Doody (ND Ind., Miller), a 9-page opinion, Judge Flaum writes:
The defendant, Alduff Doody, was charged with possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Unlike the defendants most commonly charged under § 924(c), Doody did not possess the firearm for protection. Instead, he accepted the gun as collateral to secure a drug debt. Thus, he argues, his conduct did not violate § 924(c). Because Doody took possession of a firearm in manner that facilitated a drug transaction, we affirm.In Holmes v. Levenhagen (SD Ind., McKinney), a 15-page opinion, Judge Posner writes:
This is the latest stage in a protracted federal habeas corpus proceeding in which Eric Holmes (we shall continue to call him by that name even though he changed it to “Koor An Nur of Katie Mary Brown” after converting to Islam) challenges the death sentence that an Indiana court imposed on him in 1993 after a jury convicted him of two murders that he had been accused of committing in 1989. He sought federal habeas corpus in 2001, raising a number of colorable issues one of which was whether he was competent to assist his lawyers in that proceeding. * * *In Baily v. Pregis Innovative Packaging (ND Ind., Simon), an 8-page opinion, Judge Posner writes:
A case in which the plaintiff (in habeas corpus cases the “petitioner”) pleads incompetence is of course unusual, since if the court rules that he is incompetent his case is suspended indefinitely and he gets no relief. But as we explained when last the case was here, “in a capital case the petitioner may prefer to languish in prison than to see his claims for postconviction relief denied, opening the way to his execution.” 506 F.3d at 578-79. Even if Holmes were to prevail in his habeas corpus proceeding, that would just get him a new trial, and if he were again convicted he might again be sentenced to death.
The question is not whether Holmes is insane—as he plainly is (the state does not deny that)—but whether he has sufficient mental competence to work with his lawyers in prosecuting a federal habeas corpus proceeding at both the district court and court of appeals levels. That depends on the nature of the decisions that he and his lawyers have to make in prosecuting the habeas corpus action. Some of the decisions are technical— the sort that only a lawyer could make because they turn on esoteric points of law. Others, however, are strategic, such as whether to argue mental incompetence or to go for broke by arguing the merits of the habeas corpus claim and so risk execution if the claim fails. There is also the question of which claims to emphasize— whether to give them all equal weight or not, and perhaps omit some altogether. Partly these are tactical issues to which a layperson would be unlikely to have anything to contribute; but not entirely. * * *
Holmes testified that his “mental state shouldn’t be an issue.” If he is competent, he has by that statement seemingly made a choice to go for broke—to obtain a determination from us of the merits of his habeas corpus action rather than allow the proceeding to be suspended until such time as he is restored to sanity (a time that no one expects ever to arrive). We do not think that he is competent to make such a decision. He is deeply confused, obsessed, and delusional. The evaluation by Dr. Olive and the remarks of the district judge that we have quoted cannot be reconciled with the evidence of the 64-page transcript of Holmes’s most recent testimony, along with the evidence of his earlier testimony. * * *
With reluctance, we reverse the judgment with instructions to suspend the habeas corpus proceeding unless and until the state provides substantial new evidence that Holmes’s psychiatric illness has abated, or its symptoms are sufficiently controlled, to justify the resumption of the proceeding. REVERSED AND REMANDED, WITH DIRECTIONS.
The district court granted summary judgment for the defendant in this suit under the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq. The appeal raises several issues, but only two warrant discussion; the others have no possible merit.
The defendant fired the plaintiff because she had received more than 8 “points” for absenteeism during a 12-month period—a firing offense under the defendant’s “no-fault attendance policy.” She would not have received so many points had she not taken two absences in July 2006. She contends that these absences were leaves to which the Act entitled her, and if this is correct the defendant could not lawfully penalize her for taking them. 29 U.S.C. § 2615(a)(1); 29 C.F.R. § 825.220(c); Phillips v. Quebecor World RAI, Inc., 450 F.3d 308, 310 (7th Cir. 2006); Novak v. MetroHealth Medical Center, 503 F.3d 572, 577-78 (6th Cir. 2007). But to be entitled to take leaves protected by the Act in July 2006, she had to have “been employed for at least 1,250 hours of service with [her] employer during the previous 12-month period.” 29 U.S.C. § 2611(2)(A)(ii). And she hadn’t been—unless, as she argues, she is entitled to toll the 12-month period for the 56 days during that period in which she was on FMLA leave—that is, unless she is entitled to add, to the time she worked during those 12 months, the time she worked during the 56 days that preceded the 12 months. * * *
An employee must not be penalized by being deprived, just because he is on family leave, of a benefit that he has earned (i.e., that has accrued to him) by working. But by the same token he cannot, when on family leave, accrue benefits that accrue only by working. The statute is explicit that an employee does not accrue seniority by being on family leave, 29 U.S.C. § 2614(a)(3)(A), because seniority is a reward for working; and similarly we conclude that an employee does not accrue absenteeism forgiveness when on leave, because that too is a reward for working. The defendant’s no-fault attendance policy is a lawful method of determining whether an employee has, despite absences, a sufficiently strong commitment to working for his employer to wipe an absence off his record. The plaintiff failed to demonstrate that commitment. AFFIRMED.
Posted by Marcia Oddi on April 2, 2010 10:58 AM
Posted to Ind. (7th Cir.) Decisions