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Posted by: Karen Belcher on Jan 8, 2021

BERNICE BOUIE DONALD, Circuit Judge. In these consolidated interlocutory appeals, Defendant-Appellants challenge the district court’s orders denying them a variety of asserted immunities as to Plaintiff-Appellees’ claims under 42 U.S.C. § 1983 and Plaintiff-Appellees’ defamation claim. We AFFIRM in part, REVERSE in part, and VACATE in part the district court’s denial of qualified immunity in Case No. 19-2191 and AFFIRM the district court’s denial of immunities in Case Nos. 20-1165 and 20-1166.

Posted by: Karen Belcher on Jan 8, 2021

The Defendant appeals as of right from the Hamilton County Criminal Court’s revocation of his probation and reinstatement of the remainder of his three-year sentence for one count each of theft of property valued at more than $1,000 but less than $2,500 and forgery in the same amount. On appeal, the Defendant asserts that the trial court abused its discretion by revoking his probation because: (1) the Defendant remained actively employed and made efforts to contact his probation officer; (2) the Defendant’s probation revocation “robbed victims of owed restitution and imposed an unnecessary financial burden upon the state’s taxpayers”; (3) the Defendant’s probation revocation “runs contrary to the Governor’s stated desire to use alternatives to incarceration for low-level, nonviolent offenders”; and (4) the Defendant’s probation revocation does “not reflect the trial court’s expectation that [he] would be released soon after his revocation hearing.” Following our review, we affirm the judgment of the trial court.

Posted by: Karen Belcher on Jan 8, 2021

The Petitioner, Tywan Montrease Sykes, appeals from the Blount County Circuit Court’s order summarily dismissing his petition for post-conviction relief as untimely and as a second impermissible petition. On appeal, the Petitioner argues that due process requires tolling of the one-year limitations period, that he should have been given an evidentiary hearing to present additional proof of tolling, and that his first petition was not resolved on the merits. Following our review, we affirm the judgment of the post-conviction court summarily dismissing the petition as untimely.

Posted by: Karen Belcher on Jan 8, 2021

The Defendant, Jeremy Lee Fleming, was convicted by a Bedford County Circuit Court jury of first degree premeditated murder, first degree felony murder in the perpetration of a theft or arson, arson, and theft of property valued at $1000 or more but less than $10,000. The trial court merged the first degree murder convictions and imposed a life sentence. The court sentenced the Defendant to fifteen years for arson and to twelve years for theft, as a Range III, persistent offender, and the court imposed the arson and theft sentences concurrent to each other but consecutive to the life sentence, for an effective sentence of life plus fifteen years. On appeal, the Defendant contends that the evidence is insufficient to support his convictions and that the trial court erred in imposing consecutive sentencing. We affirm the first degree murder and arson judgments, but we modify the judgment for theft to reflect a sentence of eleven months, twenty-nine days.

Posted by: Karen Belcher on Jan 8, 2021

The Tennessee Department of Children’s Services filed a petition to terminate a mother’s parental rights based on abandonment by failure to provide a suitable home; substantial noncompliance with permanency plans; failure to remedy persistent conditions; and failure to manifest an ability and willingness to assume custody of the child. The trial court granted the petition, finding that the Department proved all alleged grounds by clear and convincing evidence and that terminating the mother’s parental rights was in the best interests of the child. We affirm.

Posted by: Karen Belcher on Jan 8, 2021

This is an action to set aside a quitclaim deed. The sole issue on appeal is whether the grantor delivered the deed to the grantee with the intention that it be an effective conveyance. After the grantor signed a quitclaim deed transferring title to a 42-acre tract to the grantee, the grantor’s mother, the grantee took possession of the deed. Later that day, the deed was placed in a lockbox maintained for the grantee’s benefit but co-owned by the grantor and her sister. Approximately three years later, while the deed remained in the lockbox, the grantor died. Shortly thereafter, the mother instructed the surviving daughter to bring the deed to her, which she did, and the mother recorded the deed. Upon learning of the recording of the deed, the grantor’s husband and children commenced this action to set aside the deed for failure of delivery arguing the deed remained in the grantor’s possession and control from the time she executed it until her death. Following a bench trial, the court found that the grantor delivered the deed to her mother with the intention that it be an effective conveyance and held that the conveyance was valid. We affirm.

Posted by: Karen Belcher on Jan 7, 2021

MURPHY, Circuit Judge. Avtar Singh, an immigrant in this country unlawfully, applied for “cancellation of removal” to prevent his removal to India. The Board of Immigration Appeals denied his request because Singh failed to establish that his removal would cause “exceptional and extremely unusual hardship” to his family. 8 U.S.C. § 1229b(b)(1)(D). In essence, Singh now raises two arguments: that the Board wrongly held that he did not meet the requirements for cancellation of removal and that the immigration judge acted with unconstitutional bias. We traditionally could not review the “hardship” portion of Singh’s first argument because our cases treated the Board’s “hardship” decision as the type of discretionary call that falls outside our jurisdiction. The Supreme Court recently held, however, that courts have jurisdiction to review the Board’s “application of a legal standard to settled facts” (otherwise known as a mixed question of law and fact). See Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068–69 (2020). And the Board’s application of the statutory “hardship” standard to an immigrant’s facts qualifies as such a mixed question. Guerrero-Lasprilla thus makes clear that we may review Singh’s hardship argument. That argument nevertheless fails on the merits. And we may not review Singh’s second argument even after Guerrero-Lasprilla because he did not exhaust his unconstitutional-bias claim with the Board. So we deny his petition for review in part and dismiss it in part.

Posted by: Karen Belcher on Jan 7, 2021

BOGGS, Circuit Judge. Kenneth Kubala (Appellant) sued his former employers, Trumbull County Engineer Randy Smith and Trumbull County, Ohio (collectively Appellees) in the Trumbull County Court of Common Pleas for (1) sexual harassment (hostile-work- environment sex discrimination) under Ohio Revised Code § 4112 and for (2) violating his First Amendment rights, under 42 U.S.C. § 1983. Appellees removed to federal district court, and the parties consented to a ruling by a magistrate judge. The district court granted Appellees’ motions for summary judgment and dismissed Kubala’s state and federal claims with prejudice. Kubala appealed to our court.

The district court lacked supplemental jurisdiction over Kubala’s state sexual-harassment claim because that claim shares no common nucleus of operative fact with his constitutional claim. We therefore vacate the district court’s dismissal of Kubala’s state-law claim and direct the district court to dismiss that claim without prejudice for want of subject-matter jurisdiction. Kubala fails to show that Smith violated his First Amendment rights because the alleged threat is too ambiguous. We therefore affirm the district court’s dismissal of Kubala’s First Amendment claim.

Posted by: Karen Belcher on Jan 7, 2021

The Petitioner, William Pillars, filed a petition for post-conviction relief alleging that he received the ineffective assistance of counsel at trial and on appeal. The post-conviction court denied relief, and the Petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

Posted by: Karen Belcher on Jan 7, 2021

A jury convicted Caitlyn Metz, Petitioner, of first-degree felony murder, aggravated child abuse, and aggravated child neglect in the death of her twenty-three-month-old son, the victim, and the trial court sentenced her to an effective life sentence. Petitioner filed a post-conviction petition, asserting ineffective assistance of counsel, a Brady violation, and improper prosecutorial argument, and the post-conviction court denied the petition. On appeal, Petitioner contends that she was denied the effective assistance of counsel due to trial counsel’s failure to pursue a motion for severance from Joshua Starner, Co- Defendant, and other pretrial motions; failure to investigate Co-Defendant’s military records and Petitioner’s mental health; failure to present witnesses; and cumulative error. Following a thorough review, we conclude that Petitioner was denied the effective assistance of counsel. We reverse the judgment of the post-conviction court, vacate and set aside the judgments of conviction, and remand for a new trial.


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