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Friday, August 28, 2015

Ind. Decisions - 7th Circuit decides two more Indiana cases today

In Subah Packer v. Trustees of Indiana University (SD Ind., Pratt), an 18-page opinion, Judge Rovner writes:

This case is yet another cautionary tale about the consequences of not properly responding to a motion for summary judgment. Dr. Subah Packer was discharged from a tenured position at the Indiana University School of Medicine based on what the University says was a persistent failure to meet expectations, particularly with respect to publication and securing grant money for her research. Packer contends that the official rationale for her discharge is a mere pretext for sex discrimination, and that the dean of the medical school had long sought her discharge after he was unsuccessful in preventing her from obtaining tenure. The problem, for Packer, is that when the defendants (the trustees of the medical school—whom we shall refer to collectively as the “University”) moved for summary judgment, her counsel below did not properly support the elements of her claims with specific citations to admissible record evidence. Her new counsel has attempted to rectify the omissions on appeal, but this is too late in the day. Given the patent defects in Packer’s summary judgment memorandum below, we conclude that the district court properly entered judgment against Packer. [ILB emphasis]

In Michael A. Kelley v. Greg Zoeller (ND Ind., Soringmann), an 18-page opinion in a prisoner appeal, Judge Rovner writes:

On October 1, 1974, a then-eighteenyear- old Michael Kelley walked into a Hammond, Indiana, sandwich shop with a gun and demanded that an employee hand over all of the money in the store. Kelley walked out with $28 and a robbery conviction that would shadow him for more than thirty-seven years. In 2011, a federal judge in Missouri used that robbery conviction to enhance Kelley’s sentence for a firearms offense. Kelley now claims that the State of Indiana should have expunged the robbery conviction under a plea deal that he struck in 1975, and that the Missouri court should not have used the conviction to lengthen his federal sentence. We affirm the judgment of the Indiana district court dismissing for lack of jurisdiction. * * *

Finally, we note that the State of Indiana did not have a statute allowing for expungement of criminal convictions until 2013, nearly forty years after Kelley asserts that Indiana prosecutors agreed to expunge his conviction upon successful completion of his federal sentence. See Ind. Code § 35-38-9-1 et seq. (2013); Taylor v. State, 7 N.E.3d 362, 366–67 (Ind. Ct. App. 2014) (noting that the Indiana legislature passed the expungement statute in 2013 in order to give “individuals who have been convicted of certain crimes a second chance by not experiencing many of the stigmas associated with a criminal conviction–especially where an individual has completed the requirements established by the trial court and has since been a law-abiding citizen”). Although Kelley cited the FYCA as the law authorizing expungement of his federal conviction, he has never cited any Indiana law that would have allowed expungement of a state conviction in 1975. Nor has he ever asserted that prosecutors tried to mislead him regarding the terms of his plea agreement or the availability of expungement in Indiana, and we note that he was represented by counsel at the time. It therefore seems unlikely that his 1975 plea agreement with the State of Indiana contained the terms that Kelley asserts. In any case, the terms of the plea agreement are no longer relevant: the Indiana courts have concluded that Kelley waited too long to challenge the 1975 robbery conviction, and we may not review that judgment. For all of the foregoing reasons, the judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on August 28, 2015 04:37 PM
Posted to Ind. (7th Cir.) Decisions