DISCLAIMER: The following unofficial case summaries are prepared by the clerk's office
as a courtesy to the reader. They are not part of the opinion of the court.
131871P.pdf 07/28/2014 Martha Duban v. Waverly Sales Co. U.S. Court of Appeals Case No: 13-1871 U.S. District Court for the Northern District of Iowa, Waterloo [PUBLISHED] [Shepherd, Author, with Wollman and and Bye, Circuit Judges] Civil case - Personal injury. The general immunity afforded domesticated animal activity sponsors in Iowa Code Sec. 673.2 did not apply because the alley where plaintiff was injured was a place designated or intended by defendant as a place persons who were not participants could be present and plaintiff's injury fell within the exception to immunity set out in Sec. 673.2(4). 131933P.pdf 07/28/2014 Nyffeler Construction, Inc. v. Secretary of Labor U.S. Court of Appeals Case No: 13-1933 Petition for Review of an Order of the Occupational Safety & Health Review Commi [PUBLISHED] [Beam, Author, with Smith and Shepherd, Circuit Judges] Petition for Review - OSHA. Petitioner's petition for review was untimely and the case must be dismissed for lack of jurisdiction; a hearing panel of this court to whom the entire case has been referred for disposition is free to revisit a motion to dismiss for lack of jurisdiction even though an administrative panel of the court has previously denied the motion. 132128P.pdf 07/28/2014 Samvel Topchian v. JPMorgan Chase Bank, N.A. U.S. Court of Appeals Case No: 13-2128 U.S. District Court for the Western District of Missouri - Kansas City [PUBLISHED] [Wollman, Author, with Murphy and Gruender, Circuit Judges] Civil case - Contracts. By pleading sufficient facts to show the elements of a contract exist, that the conditions precedent were satisfied or waived and that an exception to the statute of frauds applied, plaintiff stated a claim for breach of contract in connection with his request for a loan modification, and the district court erred in dismissing the claim; plaintiff failed to state a claim for fraudulent or negligent misrepresentation and the district court did not err in dismissing those claims; nor did plaintiff state a claim for fraudulent enrichment. 132399P.pdf 07/28/2014 Guillermo Escobedo v. Mark Lund U.S. Court of Appeals Case No: 13-2399 U.S. District Court for the Northern District of Iowa - Sioux City [PUBLISHED] [Limbaugh, Author, with Loken and Murphy, Circuit Judges] Prisoner case - Habeas. The district court erred in granting habeas relief on the ground counsel should have requested a mistrial after the trial court improperly substituted an alternate juror for a juror who had been dismissed for misconduct after deliberations had begun as there were significant strategic reasons for counsel's decision to allow the case to continue and the state courts' decision that counsel's course of action did not fall below an objective standard of reasonableness was not an unreasonable application of or contrary to established federal law. 132601P.pdf 07/28/2014 Max Villatoro v. Eric H. Holder, Jr. U.S. Court of Appeals Case No: 13-2601 Petition for Review of an Order of the Board of Immigration Appeals [PUBLISHED] [Smith, Author, with Colloton and Gruender, Circuit Judges] Petition for Review - Immigration. The agency did not err in determining that petitioner's Iowa state conviction for tampering with records, in violation of Iowa Code Sec. 715A.5, was categorically a crime involving moral turpitude, thereby rendering petitioner ineligible for cancellation of removal. 132650P.pdf 07/28/2014 United States v. Dion Thomas U.S. Court of Appeals Case No: 13-2650 U.S. District Court for the Northern District of Iowa, Waterloo [PUBLISHED] [Smith, Author, with Colloton and Gruender, Circuit Judges] Criminal case - Criminal law and sentencing. Evidence of distribution of crack was properly admitted as intrinsic evidence and admission of the evidence was not prohibited by Rule 404(b); evidence regarding money laundering was properly admitted under Rule 401; district court did not err in denying defendant's motion for appointment of new counsel as the record failed to demonstrate that defendant was justifiably dissatisfied with his attorney; no error in considering defendant's crack distribution activities in setting offense level as it was relevant conduct and the court clearly considered the Guidelines as advisory; Alleyne argument rejected; no error in calculating defendant's criminal history. 132742P.pdf 07/28/2014 Eugene De Boise, Sr. v. St. Louis County, Missouri U.S. Court of Appeals Case No: 13-2742 U.S. District Court for the Eastern District of Missouri - St. Louis [PUBLISHED] [Shepherd, Author, with Wollman and Bye, Circuit Judges] Civil case - Civil rights. The district court did not err in finding the force used in securing plaintiff's decedent's arrest was objectively reasonable where he repeatedly failed to obey officers' commands and actively resisted arrest; nor did the court err in finding that even if repeated tasings amounted to excessive force in violation of the deceased's Fourth Amendment rights, such rights were not clearly established at the time of the incident; the facts before the court do not contemplate any violation of the Americans with Disabilities Act. Judge Bye, dissenting. 132832P.pdf 07/28/2014 Ronald Hernandez v. Eric H. Holder, Jr. U.S. Court of Appeals Case No: 13-2832 Petition for Review of an Order of the Board of Immigration Appeals [PUBLISHED] [Murphy, Author, with Loken, Circuit Judge, and Limbaugh, District Judge] Petition for Review - Immigration. The agency did not err in determining that petitioner's conviction for grand theft auto was an aggravated felony, making him ineligible for asylum, cancellation of removal and special cancellation of removal; the court joins other circuits which have held that the aggravated felony bar applies to convictions obtained before the enactment of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991; no error in denying CAT relief; the court would not address petitioner's adverse credibility issues as they are moot. 132896P.pdf 07/28/2014 United States v. Paige Mathison U.S. Court of Appeals Case No: 13-2896 U.S. District Court for the Northern District of Iowa - Sioux City [PUBLISHED] [Murphy, Author, with Loken, Circuit Judge, and Sippel, District Judge] Criminal case - Criminal law. Defendant requested a coercion or duress instruction and could not now argue that the court erred in giving it; claim of ineffective assistance of counsel would not be considered in this direct appeal. 133448U.pdf 07/28/2014 Auzio Hewlett v. Captain Gram U.S. Court of Appeals Case No: 13-3448 U.S. District Court for the District of Minnesota - Minneapolis [UNPUBLISHED] [Per Curiam - Before Bye, Smith and Kelly, Circuit Judges] Civil case - Bivens. Defendants' summary judgment affirmed without comment. 133628U.pdf 07/28/2014 Donald Copley v. State of Missouri U.S. Court of Appeals Case No: 13-3628 U.S. District Court for the Western District of Missouri - Kansas City [UNPUBLISHED] [Per Curiam - Before Bye, Smith and Kelly, Circuit Judges] Civil case. Dismissal affirmed without comment.