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Posted by: Karen Belcher on May 12, 2020

NALBANDIAN, Circuit Judge. Missed deadlines are preventable and costly. So courts enforce them strictly. Unfortunately for Damien Freeman, that means the door to the federal courthouse is closed. This case presents a single question: does a limited resentencing that results in a better-than-before sentence constitute a new “judgment,” as defined in 28 U.S.C. § 2244(d)(1)(A), which sets forth a one-year limitations period for habeas petitions? We hold that it does not, so we AFFIRM the district court’s dismissal of Freeman’s 28 U.S.C. § 2254 petition.

Posted by: Karen Belcher on May 12, 2020

The Defendant, Antwon Young, was convicted after a jury trial of two counts of first degree felony murder; two counts of attempted second degree murder, a Class B felony; two counts of employing a firearm during the commission of a dangerous felony, a Class C felony; one count of attempted especially aggravated robbery, a Class B felony; eight counts of attempted aggravated robbery, a Class C felony; and one count of aggravated assault, a Class C felony. See Tenn. Code Ann. §§ 39-12-101, -13-102, -13-202, -13- 210, -13-402, -13-403, -17-1324(b), -17-1324(i)(1). The trial court imposed a total effective sentence of life, to be served partially consecutively to the Defendant’s sentence in Shelby County case numbers 15-05135 and 15-109300.1 In this appeal as of right, the Defendant contends that (1) the evidence was insufficient to sustain his convictions; (2) the trial court erred by denying his motion for a mistrial after a reference was made to the Defendant’s being previously incarcerated; (3) the trial court erred by not allowing evidence of a witness’s gang affiliation; and (4) the trial court erred by sustaining the State’s objection during counsel’s closing argument. Following our review, we affirm the judgments of the trial court, but remand for the correction of clerical errors in the judgments in Counts 1, 2, 5 and 15.

Posted by: Karen Belcher on May 12, 2020

In 2011, a Davidson County jury convicted the Petitioner, Henry Floyd Sanders, of five counts of aggravated sexual battery and four counts of rape of a child, and the trial court sentenced him to forty years of incarceration. The Petitioner appealed his convictions to this court, and this court and our supreme court affirmed the judgments. State v. Sanders, 452 S.W.3d 300 (Tenn. 2014); State v. Henry Floyd Sanders, No. M2011-00962-CCA- R3-CD, 2012 WL 4841545 (Tenn. Crim. App., at Nashville, Oct. 9, 2012). Subsequently, the Petitioner filed a petition for post-conviction relief, claiming that he received the ineffective assistance of counsel, which the post-conviction court denied after a hearing. After review, we affirm the post-conviction court’s judgment.

Posted by: Karen Belcher on May 12, 2020

The Defendant, Bryan James Nicholas Milam, pleaded guilty to multiple offenses over the course of three years, and in each case the trial court sentenced him to alternative sentences, including Community Corrections. Following multiple violations of the terms of his release, the trial court revoked the Defendant’s Community Corrections sentence and ordered him to serve the remainder of his total effective fifteen-year sentence. On appeal, the Defendant contends that the trial court abused its discretion when it revoked his Community Corrections sentence and ordered him to serve the remainder of his sentence in confinement. After review, we affirm the trial court’s judgment.

Posted by: Karen Belcher on May 12, 2020

The Davidson County Grand Jury indicted the defendant, Clarence William Groves, for aggravated child abuse resulting in serious bodily injury (Count 1), aggravated child abuse by use of a deadly weapon or dangerous instrumentality (Count 2), aggravated child neglect (Count 3), and criminal impersonation (Count 4). On the first day of trial, the defendant entered a guilty plea to the misdemeanor criminal impersonation charge in Count 4. Following a jury trial, the defendant was convicted as charged in Counts 1 and 2 and was convicted of the lesser included offense of child neglect in Count 3. Thereafter, the trial court imposed an effective sentence of twenty-one years for all four counts. On appeal, the defendant argues: (1) the State violated his Fifth Amendment right to remain silent; (2) the State committed prosecutorial misconduct during its closing arguments; and (3) the evidence is insufficient to sustain his convictions. We affirm the judgments of the trial court in Counts 1, 2, and 3; however, because the record shows that the defendant entered a guilty plea to the criminal impersonation charge in Count 4, we dismiss for lack of jurisdiction the portion of the defendant’s appeal challenging the sufficiency of the evidence supporting that conviction.

Posted by: Karen Belcher on May 12, 2020

The Petitioner, Casey Colbert, challenges the denial of his petition for post-conviction relief, wherein he attacked his jury convictions for first degree felony murder and attempted aggravated robbery. On appeal, the Petitioner raises numerous grounds of ineffective assistance of counsel, including that trial counsel was ineffective for failing to conduct reasonable investigation; failing to call various witnesses; failing to impeach and thoroughly cross-examine the State’s witnesses; failing to present viable alibi and third- party perpetrator theories of defense; failing to object to the co-defendant’s surprise testimony placing the Petitioner at the scene when notice of alibi had been given; and failing to object to improper closing argument by the State at trial. In addition, he raises allegations of newly discovered evidence and prosecutorial misconduct. Having reviewed the entire record and the briefs of the parties, we are constrained to agree with the Petitioner that the post-conviction court failed to make sufficient findings of fact and conclusions of law to enable appellate review of his claims. According, we reverse the judgment of the post-conviction court and remand this case for proceedings consistent with this opinion.

Posted by: Karen Belcher on May 11, 2020

PER CURIAM. Three congregants of Maryville Baptist Church wish to attend in-person worship services this Sunday, May 10. By order of the Kentucky Governor, however, they may not attend “faith-based” “mass gatherings” through May 20. Claiming that this limitation on corporate worship violates the free-exercise protections of the First and Fourteenth Amendments to the United States Constitution, the congregants seek emergency relief barring the Governor and other officials from enforcing the ban against them. The Attorney General of the Commonwealth supports their motion as amicus curiae. The Governor and other officials oppose the motion.

Posted by: Karen Belcher on May 11, 2020

GRIFFIN, Circuit Judge. The State of Michigan finds itself in a tug-of-war between faith-based child placement agencies and same-sex couples who wish to foster or adopt children. In an earlier round of litigation, appellants Kristy and Dana Dumont claimed the State violated their First and Fourteenth Amendment rights by allowing faith-based child placement agencies to refuse them service based on their sexual orientation. Michigan settled that suit by agreeing to enforce a policy prohibiting discrimination on the basis of sexual orientation against faith-based child placement agencies. That settlement spawned this litigation. Plaintiff St. Vincent Catholic Charities claims the State violated its First and Fourteenth Amendment rights by directing it to perform its duties in a manner that violates its sincerely held religious beliefs.

This appeal deals not with the merits of the underlying constitutional dispute, but rather with whether the district court erred as a matter of law in denying the Dumonts’ motion for intervention as of right or, in the alternative, whether it abused its discretion in denying their motion for permissive intervention. For the reasons explained below, we reverse the district court’s order regarding permissive intervention and remand for further proceedings consistent with this opinion.

Posted by: Karen Belcher on May 11, 2020

COLE, Chief Judge. This case asks us to decide whether a federal civil-service pension based on work as a National Guard dual-status technician qualifies as “a payment based wholly on service as a member of a uniformed service” under the Social Security Act. We agree with the district court that it does not.

Posted by: Karen Belcher on May 11, 2020

This appeal stems from a dispute involving real property that Plaintiff acquired online. The property was previously purchased in a foreclosure action by one of the defendants. The previous owners were holdover occupants of the property. After purchasing the property, Plaintiff signed a real estate purchase contract and closed approximately two and one-half months thereafter. Due to delays in litigation involving the holdover occupants, Plaintiff was unable to take possession of the property for nearly two years after purchasing it online. In this case, Plaintiff brought suit against NationStar Mortgage, LLC; U.S. Bank, N.A.; Auction.com, LLC; and WFG National Title Insurance Company on several contract-related claims and alleged violations of the Tennessee Consumer Protection Act. Auction.com and WFG were dismissed prior to trial. The remaining defendants moved for summary judgment on all of the claims, which the trial court granted in part and denied in part. A jury trial was held on the remaining claims. At the close of Plaintiff’s proof at trial, the defendants moved for a directed verdict, which the court again granted in part and denied in part. One claim under the Tennessee Consumer Protection Act went to the jury, which found in favor of Plaintiff and awarded a verdict of $250,000. The parties filed separate post-trial motions. The trial court granted the defendants’ motion for judgment notwithstanding the verdict and denied the other requests of the parties or found them to be moot. For the reasons stated herein, we affirm the decisions of the trial court and remand.


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