On April 10, 2008, the U.S. Court of Appeals for the Fifth Circuit announced the docket for the May 22, 2008, en banc sitting. The cases, a brief description, and their briefing status, are below:
- U.S. v. Gomez, 05-41461 (panel opinion; Reavley, Jolly, Benavides, JJ.; panel opinion by Benavides, J.). Issue is whether offense of rape by duress under California Penal Code is a “crime of violence” warranting a sixteen-level sentencing enhancement. Appellant’s brief; Appellee’s brief.
- In Re: Volkswagen of America, Inc., 07-40058 (panel opinion; Jolly, Clement, Owen, JJ.; panel opinion by Jolly, J.). Issue is whether the district court abused its discretion in denying Volkswagen’s motion to transfer venue from Marshall, Texas, to Dallas, Texas, pursuant to 28 USC 1404; Volkswagen claims that the only factor weighing in favor of maintaining venue in the Eastern District of Texas was that it was the plaintiff’s choice of forum, but that none of the other public or private interest factors weigh in favor of proceeding in Marshall. Volkswagen’s brief is here. Amici Curiae brief of Union Pacific Railroad Co. and BNSF Railway Co. is here. Amicus brief of Product Liability Advisory Council, Inc. is here. Amicus brief of Intellectual Property Law Association is here. Respondent’s brief is here.
- Moore v. Quarterman, 05-70038 (original panel opinion; Smith, Garza, Dennis, JJ.; original panel opinion by Smith, J., with Dennis, J., dissenting) (panel opinion on rehearing; Smith, Garza, Dennis, JJ.; panel rehearing opinion by Smith, J., with Dennis, J., dissenting). Petitioner was found guilty of capital murder in Texas state court. Following U.S. Supreme Court’s opinion in Atkins v. Virginia, the U.S. Fifth Circuit granted petitioner authorization to file a second habeas petition in federal court to raise the Atkins issue. The U.S. district court found that petitioner was mentally retarded under Atkins, and granted the requested relief. The panel of the U.S. Fifth Circuit held that the petitioner failed to exhaust his state court remedies, that Texas’ abuse-of-the-writ doctrine would preclude the filing for further state postconviction relief, and vacated the habeas relief and remanded to the district court with instructions to dismiss petitioner’s habeas petition with prejudice. Respondent-appellant’s brief is here; Petitioner-appellee’s brief is here.
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[…] In re: Volkswagen of America, Inc. The updated links can be found on this site’s En Banc Preview post. When briefing is completed in Moore v. Quarterman, this blawg will begin a series of preview […]
[…] enbancblogger on April 24th, 2008 The 5th Circuit will hear three cases en banc on May 22, 2008. At issue: U.S. v. Gomez, whether offense of rape by duress under California Penal Code is a “crime of […]
[…] U.S. Court of Appeals for the Fifth Circuit has updated the available information for the May 22, 2008, en banc hearing, adding a link to the Respondent’s Brief in Moore v. Quarterman. This blawg will provide a […]
[…] opens at 8:00 a.m. for those appellate junkies, like me, who want to get a good seat). As posted here last month (with links to the original panel opinions and the en banc briefs), the en banc Court will re-hear […]
[…] Following is a review of the arguments in each of the three cases. In a separate “sidebar” post, I will post some non-case-specific observations about this morning’s arguments. Links to briefs for the cases are located at this post. […]
[…] Northern District of Texas. The issues involved are posted in this Blawg’s en banc preview, here (with links to parties’ briefs). The majority opinion held that the district court’s failure to grant a motion for transfer […]