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Wednesday, February 02, 2011

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Applicants sought for bankruptcy judge

The 6th Circuit Judicial Council is soliciting applications from persons interested in appointment as the U.S. bankruptcy judge for the Middle District of Tennessee at Nashville. The position will become vacant on Dec. 31 with the retirement of Judge George C. Paine II. The appointment is for a 14-year term and salary is $160,080. For more information, contact Sixth Circuit Executive Clarence Maddox at (513) 564-7200. Applications must be received by March 16.

Download the full announcement

Learn more online at www.ca6.uscourts.gov

TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

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You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

ROGER DALE RAPER v. JOHANNA RAPER

Court: TCA

Attorneys:

Barry K. Maxwell, Madisonville, Tennessee, for the appellant, Roger Dale Raper.

John Carson III, Madisonville, Tennessee, for the appellee, Johanna Raper.

Judge: SUSANO

In this divorce case, the trial court granted Roger Dale Raper ("Husband") and Johanna Raper ("Wife") an absolute divorce, thereby ending their 26-year union. A bench trial was held to resolve the remaining issues of property division and alimony. The court divided the marital property and awarded Wife alimony in solido and alimony in futuro. Husband appeals and challenges each of these determinations. We affirm.

http://www.tba2.org/tba_files/TCA/2011/raperr_020211.pdf

MARIAM FADA DIRIE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ashley Preston, Nashville, Tennessee, for the appellant, Mariam Fada Dirie.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Mariam Fada Dirie, pleaded guilty to two counts of aggravated child abuse by neglect, a Class A felony, and received concurrent sentences of 17 years' incarceration. A timely filed petition for post-conviction relief followed wherein the petitioner alleged that her guilty pleas were involuntary due to the ineffective assistance of counsel. Following the appointment of counsel, amendment of the petition, and an evidentiary hearing, the post-conviction court denied relief. On appeal, the petitioner contends that the post-conviction court erred by denying relief. Discerning no error, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/diriem_020211.pdf

WILLIE DOCKINS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jerri D. Mauldin (on appeal) and John Parker (at trial), Memphis, Tennessee, for the appellant, Willie Dockins.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; William L. Gibbons, District Attorney General; and Rachel Newton, Tracye Jones and Tom Hoover, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

http://www.tba2.org/tba_files/TCCA/2011/dockinsw_020211.pdf

STATE OF TENNESSEE v. BRIAN MARK DRIGGERS

Court: TCCA

Attorneys:

John D. Schwalb (on appeal), Franklin, Tennessee, and Roger Clay Parker (at trial), Shelbyville, Tennessee, for the Appellant, Brian Mark Driggers.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Charles F. Crawford, Jr., District Attorney General; Weakley R. Barnard, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Marshall County jury convicted the Defendant, Brian Mark Driggers, of forgery and misdemeanor theft, and the trial court sentenced him to one year and three months to be served in the Tennessee Department of Correction. On appeal, the Defendant contends that the evidence is insufficient to support his convictions, that the State failed to prove venue, and that the trial court erred when it denied the Defendant an alternative sentence. After a thorough review of the record and the applicable law, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2011/driggersb_020211.pdf

KEITH L. JACKSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Keith L. Jackson, Pro Se, Nashville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

A Davidson County jury convicted Petitioner, Keith L. Jackson, of one count of possession with the intent to sell twenty-six grams or more of a substance containing cocaine in a drug-free school zone and one count of possession of a firearm with the intent to employ it in the commission of or escape from an offense. He was sentenced to an effective sentence of thirty-six years. Following an appeal to this Court, his conviction for possession of a firearm was reversed. Petitioner filed a petition for post-conviction relief which was unsuccessful. His subsequent petition for writ of habeas corpus was also unsuccessful. Petitioner has filed a second petition for writ of habeas corpus which was summarily dismissed by the habeas corpus court. Petitioner appeals the dismissal of his petition in this appeal. He argues that his sentence requiring a 100% release eligibility is nconstitutional and is contrary to the Sentencing Reform Act of 1989. After a thorough review of the record, we affirm the dismissal of the petition because these issues were determined by this Court in Petitioner's prior appeal from the dismissal of his earlier petition for writ of habeas corpus.

http://www.tba2.org/tba_files/TCCA/2011/jacksonk_020211.pdf

CHRISTOPHER KYLE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert Brooks, Memphis, Tennessee, for the appellant, Christopher Kyle.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General; and Doug Carriker, Assistant District Attorney General, for the appellee.

Judge: OGLE

Following his convictions for second degree murder and theft, the Petitioner, Christopher Kyle, filed a petition for post-conviction relief, alleging that his trial and appellate counsel were ineffective, specifically in failing to challenge the accuracy of the autopsy report and the sentencing procedure employed by the trial court. After a hearing, the post-conviction court denied the petition, and the Petitioner now appeals. Upon review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/kylec_020211.pdf

JAMES E. LOFTON v. HENRY STEWARD, WARDEN

Court: TCCA

Attorneys:

James E. Lofton, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Deshea Dulany Faughn, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, James E. Lofton, appeals the Lauderdale County Circuit Court's dismissal of his petition for writ of habeas corpus. Following our review, we affirm the summary dismissal of the petition.

http://www.tba2.org/tba_files/TCCA/2011/loftonj_020211.pdf

STATE OF TENNESSEE v. CHARLES PHILLIP MAXWELL

Court: TCCA

Attorneys:

Charles Phillip Maxwell, pro se (at trial), and Ashley Preston (on appeal), Nashville, Tennessee, for the appellant, Charles Phillip Maxwell.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and David Gregory Vorhaus, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

Following a bench trial, the Defendant, Charles Phillip Maxwell, was convicted of driving on a suspended license, a Class B misdemeanor. The trial court revoked the Defendant's license for a year and sentenced the Defendant to 30 days in the county jail, suspended to probation following the service of 24 hours in the county jail. In this appeal as of right, the Defendant contends that the evidence was insufficient to sustain his conviction. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/maxwellc_020211.pdf

CELSO VILORIO MELENDEZ, a/k/a EDWIN CANALES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

John E. Herbison, Nashville, Tennessee, for the appellant, Celso Viloria Melendez, a/k/a Edwin Canales.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Celso Vilorio Melendez, aka Edwin Canales, appeals as of right the Davidson County Criminal Court's denial of his petition for post-conviction relief. The Petitioner alleges that his guilty pleas to two counts of facilitation to deliver over 300 grams of cocaine, a Class B felony, was not voluntarily, knowingly and understandingly made due to the ineffective assistance of counsel. Specifically, he contends that trial counsel did not advise him of the eligibility requirements for participation in the Department of Correction's (DOC) Boot Camp Program, and that, had he been properly advised, he would not have pleaded guilty. After the appointment of counsel and a full evidentiary hearing, the post-conviction court found that the Petitioner failed to prove his allegations by clear and convincing evidence and denied the petition. Following our review, we conclude that trial counsel rendered deficient representation when he incorrectly advised the Petitioner that he was eligible for the boot camp program. We reverse the judgment of the post-conviction court and remand for a determination regarding whether that deficiency was prejudicial to the Petitioner.

http://www.tba2.org/tba_files/TCCA/2011/melendezc_020211.pdf

CALVIN OWENS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Juni S. Ganguli, Memphis, Tennessee, for the Defendant-Appellant, Calvin Owens.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; William L. Gibbons, District Attorney General; and Nicole Germain, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Petitioner, Calvin Owens, appeals from the Shelby County Criminal Court's denial of post-conviction relief from his convictions for one count of attempted second degree murder, one count of attempted especially aggravated robbery, and two counts of aggravated robbery. On appeal, the Petitioner argues that trial counsel was ineffective in failing to communicate with him, in failing to properly investigate his case, in withdrawing the suppression motion regarding the photo spread identification, in questioning the victim regarding the bad dreams he had while recovering from his injuries in the hospital, and in failing to advise him about the advantages and disadvantages of testifying at trial. In addition, the Petitioner argues that appellate counsel was ineffective in failing to appeal a hearsay issue that was included in the motion for new trial. Upon review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/owensc_020211.pdf

GENE SHELTON RUCKER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Gene Shelton Rucker, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Brett Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Gene Shelton Rucker, appeals the habeas corpus court's summary dismissal of his petition for habeas corpus relief from his convictions for criminally negligent homicide and aggravated arson. In his petition, he asserts that his sentence is illegal because it was improperly enhanced in violation of the United States Supreme Court's holding in Blakely v. Washington, 542 U.S. 296 (2004). Following our review of the record and the applicable authorities, we conclude that principles of res judicata dictate that this issue not be relitigated. The order of dismissal is affirmed.

http://www.tba2.org/tba_files/TCCA/2011/ruckerg_020211.pdf

STATE OF TENNESSEE v. BILLY D. SIZEMORE

Court: TCCA

Attorneys:

Larry Joe Hinson, Jr., Hohenwald, Tennessee, for the appellant, Billy D. Sizemore.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Ron Davis, District Attorney General, and Stacey B. Edmonson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The Perry County Grand Jury indicted Appellant, Billy D. Sizemore, for one count of theft over $1,000 in connection with the theft of rolls of wire fencing from Eugene Grinder. A jury convicted Appellant as charged, and the trial court sentenced Appellant to twelve years as a career offender. On appeal, Appellant argues that the evidence is insufficient to support his conviction because there was insufficient corroboration of his co-defendant's testimony. After a thorough review of the record, we conclude that there was sufficient corroborating evidence and, therefore, the evidence was sufficient to support his conviction. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2011/sizemoreb_020211.pdf

STATE OF TENNESSEE v. KENNETH WENDLAND

Court: TCCA

Attorneys:

Brent O. Horst, Nashville, Tennessee, for the appellant, Kenneth Wendland.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Laural A. Hemenway, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Kenneth Wendland, entered a plea of guilty to aggravated sexual exploitation of a minor, a Class B felony, and criminal simulation, a Class E felony, but reserved a certified question of law pursuant to Rule 37. He received sentences of eight years for the Class B felony and one year for the Class E felony. The question reserved for review is whether the searches of the defendant's home and computers were illegal under both the United States and Tennessee constitutions. After careful consideration, we conclude that the searches at issue were legal. Police were properly admitted into Mr. Wendland's house with the consent of his roommate. While properly in the home, the officers legally seized evidence of counterfeiting, pursuant to the plain view doctrine. Specifically, the officers had legal authority to seize certain computers, computer equipment, and other items as evidence because they had probable cause to believe that these items were involved in the production of counterfeit money. After these items were lawfully seized, the computers were properly searched pursuant to valid search warrants. Consequently, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/wendlandk_020211.pdf

Change in Selection of Utility District Commissioners under Tenn. Code Ann. Section 7-82-307(a)(7)

TN Attorney General Opinions

Date: 2011-02-02

Opinion Number: 11-13

http://www.tba2.org/tba_files/AG/2011/ag_11_13.pdf

TODAY'S NEWS

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Legal News

M. Lee Smith merges with Connecticut company

Brentwood-based legal materials publisher M. Lee Smith Publishers has completed a merger with Connecticut-based BLR, which produces business and legal materials on employment, safety and environmental compliance issues. The merged companies will retain their existing products and continue to operate as subsidiaries of parent company Fortis Business Media LLC, with headquarters in Brentwood.

The Tennessean has the story

Women claim prosecutor traded leniency for sex

Five women claim they were offered leniency in court in exchange for sexual favors by former Hawkins County Assistant Attorney General Doug Godbee. They now have filed civil complaints with the Tennessee Claims Commission. Three of the women claim they had sex with Godbee, and are each seeking monetary awards between $150,000 and $300,000. Godbee resigned in 2006 after a crime victim in a case he was prosecuting reported a sexual relationship with him, but he was reinstated in 2008. He resigned again in September 2010 amid allegations of sexual misconduct with a defendant.

The Times-News reports

State eyes early release of felons to cut costs

Tennessee would accelerate the release of some felons from state prisons and cut payments to counties that house state prisoners under a budget plan outlined today by the state's prisons chief. Correction Department Commissioner Derrick D. Schofield says the plan meets the directive to cut one to three percent from all state departments while sharing the pain among a wide range of affected entities.

The Chattanooga Times Free Press has details on the proposal

Wilson County attorney indicted on theft charges

Wilson County attorney Gary Vandever has been indicted on two counts of theft over $60,000 and one count of theft over $10,000. The charges stem from allegations that Vandever used funds from a client's estate for his own travel and living expenses. The client has sued for $6 million.

WSMV has the story

Attorney interested in possible judicial vacancy

Although Sullivan County General Sessions Judge Duane Snodgrass hasn't formally made plans to leave the bench before his term expires in 2014, attorney Jim Beeler is asking Sullivan County commissioners to consider him for the job if it comes open. Beeler has been contacting commissioners to make sure they know he is interested in the post if Snodgrass retires early.

The Kingsport Times News has the story

Study finds jump in immigration prosecutions

New government data shows the Obama administration has sharply increased immigration prosecutions and has stepped up cases against white-collar crimes, drug violations, organized crime and official corruption. The review was conducted by the Transactional Records Access Clearinghouse, a private, nonpartisan group based at Syracuse University, which compiled the data from the first two years of the Obama administration and the last two years of the Bush administration.