May 19, 2019

Archives for July 2012

Colorado Court of Appeals: Claimant Seeking Workers’ Compensation Benefits for Solely Psychological Claim Has Heightened Burden of Proof

The Colorado Court of Appeals issued its opinion in Kieckhafer v. Industrial Claim Appeals Office on July 19, 2012.

Workers’ Compensation—Burden of Compensability Under CRS § 8-41-301(2)(a).

Claimant appealed the final order of the Industrial Claim Appeals Office (Panel) affirming the administrative law judge’s (ALJ) dismissal of her claim for benefits. The order was affirmed.

Claimant worked as a nurse in the women’s forensics unit of employer, the Colorado Mental Health Institute–Pueblo. Claimant began experiencing work-related emotional distress and sought psychological help. Eventually, she filed a claim for workers’ compensation benefits for her “mental/emotional distress.”

The ALJ determined claimant had failed to introduce necessary evidence from a mental health professional establishing that she “suffered a recognized disability arising from a psychologically traumatic event.” Consequently, the ALJ held that claimant had not met her burden of demonstrating entitlement to benefits for her “mental–mental” claim. The ALJ denied and dismissed the claim. The Panel affirmed and claimant appealed.

Claimant argued that CRS § 8-41-301(2)(a) imposes an insurmountable obstacle to claimants seeking medical benefits for their emotional injuries. The Court of Appeals disagreed. To receive benefits, an injured worker has the threshold burden of establishing, by a preponderance of the evidence, that he or she has sustained a compensable injury proximately caused by her employment. Here, claimant was claiming “mental–mental” injuries, in which “mental impairment follows solely an emotional stimulus.” This requires a “heightened standard of proof” to “help prevent frivolous or improper claims.” The statute requires “the testimony of a licensed physician or psychologist” to establish the claim. Because claimant failed to introduce any such evidence, the order denying and dismissing her claim was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Series of Exchanged E-Mails Did Not Constitute “Meeting” for Purposes of Colorado’s Open Meetings Law

The Colorado Court of Appeals issued its opinion in Intermountain Rural Electric Association v. Colorado Public Utilities Commission on July 19, 2012.

Colorado Open Meetings Law—E-mail Exchanges—Summary Judgment.

This case raises the issue of whether e-mail exchanges among members of the Public Utilities Commission (PUC) regarding proposed legislation constituted “meetings” for purposes of the Colorado Open Meetings Law (OML). The Court of Appeals held that the exchanges did not constitute meetings and affirmed the trial court’s summary judgment in favor of defendants.

On March 15, 2010, a bill for the Clean Air–Clean Jobs Act (CACJA)was introduced in the House of Representatives. The next day, the director of the PUC provided testimony that the PUC did not oppose the legislation. Both Houses passed the bill and it was signed into law.

In early 2010, Kelly Nordini, a member of the Governor’s staff, e-mailed PUC Chairman Ron Binz seeking input on proposed language for inclusion in an earlier version of the bill. The language was suggested by Public Service Company of Colorado (PSCo). An e-mail conversation ensued among the Commissioners about the proposed legislation, and Nordini was copied on fifteen of eighteen e-mails. The content generally comprises edits to the draft legislative language and detailed discussion about the bill.

Intermountain Rural Electric Association (IREA) brought suit against the PUC, its Director, and the Commissioners in their official capacities, seeking a declaration that (1) the e-mails were “meetings” subject to the OML; (2) defendants violated the OML when they failed to provide notice of the meetings, make the meetings public, or enter an executive session; and (3) any formal action arising out of the e-mails was invalid.

Defendants moved for summary judgment, arguing the e-mails were not “meetings” under CRS § 24-6-402(1)(b). The trial court agreed and granted summary judgment in favor of defendants. On appeal, IREA argued it was error to determine the e-mails were not “convened to discuss public business.” The Court disagreed and affirmed.

The OML provides: “All meetings of two or more members of any state public body at which any public business is discussed or at which any formal action may be taken are declared to be public meetings open to the public at all times.” A “meeting” is “any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by other means of communication.” The parties agree that the exchange of e-mails was a “gathering” but dispute whether the e-mails discussed “public business.”

The Colorado Supreme Court has held that discussing public business (not defined in the statute) refers to a public body’s policy-making function. IREA claimed that the e-mails were part of the PUC’s policy-making process. The Court disagreed. It held that to prevail on an OML claim, a party must point to a pending action by the public body holding the meeting with regard to a rule, regulation, ordinance, or formal action by that public body that has a meaningful connection to the gathering in question. Here, the Court could not find that the hypothetical effect of providing input to the Governor’s staff with regard to draft language for a bill pending before the legislature, or advising a legislative committee that the PUC did not oppose the bill, constituted part of the PUC’s policy-making function.

The IREA argued that the e-mails were a “formal action” of the PUC because it is “authorized” to engage in discussions on pending legislative proposals. The Court stated that this argument failed to distinguish between “formal actions” of the PUC, which create public policy within the purview of the PUC’s policy-making powers, and other duties and actions of the PUC, which do not. Here, where the PUC was opining about potential legislation, it was not itself making public policy.

Summary and full case available here.

Colorado Court of Appeals: Homeowners’ Liability to Injured Contractor Limited by Statutory Damages Cap

The Colorado Court of Appeals issued its opinion in Cavaleri v. Anderson on July 19, 2012.

Premises Liability—CRS § 8-41-401(3).

In this premises liability case, Chris Cavaleri (contractor) and Magdalena Cavaleri (wife) appealed the trial court’s judgment dismissing their personal injury claims against Aaron and Heidi Anderson (homeowners) with prejudice. The judgment was affirmed.

Contractor was the sole proprietor of a business and did not carry workers’ compensation insurance on himself. He was hired by homeowners to do some tiling work on their home. As he walked down their front steps after completing the work, he leaned on a wooden railing and it gave way, causing him to fall and sustain injuries. Contractor and his wife brought this premises liability action, seeking economic and noneconomic damages.

Before trial, the court asked the parties about the impact of CRS § 8-41-401(3) on contractor’s claims. The court ruled that the $15,000 limitation on damages applied to contractor’s claims. Homeowners immediately tendered the statutory limit. The trial court dismissed the action with prejudice and contractor appealed.

Contractor argued that CRS § 8-41-401(3) did not apply because homeowners were not required to obtain workers’ compensation insurance covering contractor and, because no coverage was required, homeowners were not among the individuals protected by the statutory damages cap. The Court of Appeals disagreed. The Court noted that the purpose of the section is to encourage participation in the workers’ compensation system and limit exposure of contractors who obtain coverage from lawsuits or claims brought by uncovered independent contractors injured on the job.” [Snook v. Joyce Homes, Inc., 215 P.3d 1210, 1215 (Colo.App. 2009).]

Here, homeowners are not general contractors and are excluded from the Workers’ Compensation Act. However, contractor provided no support for his argument that this somehow kept him from obtaining workers’ compensation insurance for himself. Contractor’s argument failed to address the express inclusion of “sole proprietor[s] who [are] not covered under a policy of workers’ compensation insurance” among the individuals who may bring an action against a negligent third party, but whose damages will be limited to $15,000 if they elect to forego workers’ compensation insurance. The dismissal with prejudice was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Governor Had Right to Opt-Out of Physician Supervision Requirement for Certified Registered Nurse Anesthetists

The Colorado Court of Appeals issued its opinion in Colorado Medical Society v. Hickenlooper, Governor of Colorado on July 19, 2012.

Dismissal for Failure to State a Claim—Social Security Act.

The Colorado Medical Society and Colorado Society of Anesthesiologists (collectively, Doctors) appealed the district court’s order dismissing their complaint for failure to state a claim against the Colorado Governor John Hickenlooper. The Colorado Association of Nurse Anesthetists, Colorado Nurses Association, and Colorado Hospital Association (collectively, Nurses) joined the Governor’s motion to dismiss. The order was affirmed.

Under the Social Security Act (Act), ambulatory surgical centers, hospitals, and critical access hospitals must fulfill certain conditions of participation to receive Medicare reimbursement. One condition is that certified registered nurse anesthetists (CRNAs) administering anesthesia must be supervised by a physician. However, states may opt out of the physician supervision requirement if “the State in which the [facility] is located submits a letter to [the Centers for Medicare and Medicaid Services] signed by the Governor, following consultation with the State’s Boards of Medicine and Nursing, requesting exemption from physician supervision of CRNAs.” The letter must attest that the Governor consulted the Boards and concluded the opt-out “is in the best interests of the State’s citizens” and “consistent with State law.”

Fifteen other states have opted out of physician supervision of nurses administering anesthesia. On July 19, 2010, former Governor Bill Ritter, Jr. requested advice from the Colorado Medical Board and the Colorado Board of Nursing about whether the opt-out was consistent with the law and in the best interests of Colorado’s citizens. In August, both recommended the opt-out. On September 27, 2010, Governor Ritter notified the Centers for Medicare and Medicaid Services about his consultation with the Boards and exercised the opt-out as to all critical access hospitals and thirteen rural general hospitals (later adding a fourteenth).

On September 28, 2010, the Doctors filed this action for declaratory relief, arguing the opt-out was inconsistent with Colorado law. The Nurses intervened and joined Governor Hickenlooper in a motion to dismiss. The district court granted the motion to dismiss, and the Doctors appealed.

The Court of Appeals first rejected an argument raised only by the Colorado Hospital Association: that the decision to opt out is “a decision committed to political branches and is not subject to judicial review.” The Court found no “textually demonstrable constitutional commitment” that expressly or impliedly vests the Governor with the sole discretion to determine whether CRNAs may administer anesthesia without physician supervision.

The Court rejected the Governor’s argument that the Doctors lacked standing to challenge the opt-out decision. The Court found the Doctors’ alleged injuries to their medical licenses and reputations sufficient to establish both tangible and intangible injuries concerning a legally protected interest (their medical licenses).

The Doctors argued it was error to dismiss their complaint, contending the Act requires physician supervision of CRNAs because (1) anesthesia is a medication; (2) medication is part of a medical plan; and (3) the administration of anesthesia is a “delegated medical function” subject to physician supervision. The Court disagreed, noting that the Act defines professional nursing as, in part, the performance of “delegated medical functions.” Such a function is defined, in part, as “an aspect of care that implements and is consistent with the medical plan as prescribed by a licensed or otherwise legally authorized physician.” Physician supervision is required when a nurse performs a delegated medical function. A CRNA, however, is an “advanced practice nurse,” which means a professional nurse “who obtains specialized education or training.”

The Court agreed with the district court that the Doctors’ argument cuts too broadly, because a CRNA never would administer any treatment unless implementing a medical plan. In addition, the Act’s definition of “practice of professional nursing” clearly recognizes many independent functions that are different from delegated medical functions. The Court concluded that CRNAs who administer anesthesia are conducting independent nursing functions within the scope, role, and population focus that the Nursing Board has approved for them. They are not conducting delegated medical functions and therefore do not require physician supervision. The order of dismissal was affirmed.

Summary and full case available here.

Good Luck to Everyone Taking the Colorado Bar Exam This Tuesday and Wednesday!

Many of us are thinking to ourselves, “where has the summer gone?” I imagine this is especially true for the hundreds of bar applicants who have spent the last couple months intently studying instead of enjoying one of the warmest Colorado summers on record.

However, that wonderful time is finally here again: the Colorado Bar Exam will be held this week on Tuesday, July 24 and Wednesday, July 25. To all those who have spent countless hours in preparation, we at CBA-CLE would like to wish you the best of luck. All your hard work in law school and pouring over bar materials is about to pay off. The end is in sight!

Don’t forget your admission badges and a government I.D. No mechanical pencils or hiliters. Earplugs and a pillow might also be a good idea – from personal experience, those chairs aren’t the most comfortable – but no pillowcases.

Above all, now is the time to put down the flash cards and let your mind relax for a little while. Be confident, get some good rest, and show those bar examiners who’s boss!

Once everything is over and you’ve had a chance to decompress, don’t forget that between Thursday and when you’re sworn in you must stop by the CBA-CLE offices to take the Practicing with Professionalism class. There are several in the coming months – sign up now so you don’t forget: August 29, September 18, October 15, and October 17.

Colorado Court of Appeals: Enforcing a Limitation of Liability Provision After Willful and Wanton Breach of Contract Would Shield Party from Consequences of Such Conduct and Is Contrary to Public Policy

The Colorado Court of Appeals issued its opinion in Core-Mark Midcontinent, Inc. v. Sonitrol Corporation on July 19, 2012.

Breach of Contract—Limitation of Liability—Willful and Wanton—Expert Witness—Non-Party at Fault.

Defendant Sonitrol Corporation appealed the judgment entered against it after a jury trial on the breach of contract claims of plaintiffs, Core-Mark International, Inc. and its wholly owned subsidiary, Core-Mark Midcontinent, Inc. (collectively, Core-Mark); and Core-Mark’s casualty insurers, U.S. Fire Insurance Company and Commonwealth Insurance Company (collectively, Insurers). It also appealed the district court’s award of costs based on that judgment. The judgment as to liability was affirmed, the judgment as to damages was reversed, the costs award was vacated, and the case was remanded for a new trial on damages.

Sonitrol and Core-Mark contracted to have Sonitrol install and monitor a burglar alarm system at one of Core-Mark’s warehouses. Sonitrol failed to detect or to respond to a burglary at the warehouse. One of the burglars, David Ottersberg, started a fire in the warehouse that effectively destroyed the building and its contents. Sonitrol contended that a division of the Court of Appeals erred in Sonitrol Iby ruling that a limitation of liability provision like that here is not enforceable where a party has committed a willful and wanton breach of contract [United States Fire Ins. Co. v. Sonitrol Mgmt. Corp., 192 P.3d 543 (Colo.App. 2008)]. A limitation of liability provision generally is enforceable because it represents the parties’ bargained-for agreement regarding allocation of risks and costs in the event of a breach or other failure of the contemplated transaction. Because of the egregiously wrongful nature of a willful and wanton breach of contract, however, enforcing a limitation of liability provision to shield a party from the consequences of such conduct is deemed to be contrary to public policy. Therefore, the division in Sonitrol I correctly ruled on this issue.

Sonitrol further contended that the district court erred on remand by refusing to allow Sonitrol’s expert witnesses to testify. Sonitrol could have foreseen that if it failed to detect a break-in at the warehouse, a burglar could start a fire. However, the jury should have been able to consider Sonitrol’s proffered expert testimony relating to whether Sonitrol could have foreseen that the fire set by Ottersberg would prove so calamitous due to the alleged code violations. Further, the proffered testimony supported Sonitrol’s theory that its conduct was not the cause of all the damages Core-Mark claimed. Becausethe experts’ testimony was relevant and admissible on the issue of damages and the error was not harmless, the district court abused its discretion by excluding Sonitrol’s experts’ testimony.

Sonitrol finally contended that the district court erred by ruling that it could not designate Ottersberg as a nonparty at fault. CRS § 13-21-111.5(3) permits apportionment of liability only to a nonparty at fault in a tort action. Therefore, the district court did not err in ruling that Sonitrol could not designate Ottersberg as a nonparty at fault under CRS § 13-21-111.5 in this breach of contract action.

Summary and full case available here.

Colorado Court of Appeals: Careless Driving Is Not a Lesser-Included Offense of Vehicular Assault

The Colorado Court of Appeals issued its opinion in People v. Zweygardt on July 19, 2012.

Careless Driving Resulting in Death—Negligent Homicide—Vehicular Assault (Reckless)—Jury Instructions—Lesser-Included Offense—Merging Convictions.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of two careless driving resulting in death counts, one negligent homicide count, and three vehicular assault (reckless) counts. The judgment was affirmed.

While driving a pickup truck, defendant was speeding, failed to stop for a stop sign, and hit a Dodge Durango occupied by Y.S. and her two children, D.S. and V.S. Y.S. was air-lifted to a hospital and later died. D.S. was pronounced dead at the scene. V.S. suffered severe bodily injuries. Defendant and the passenger in his truck, K.T., also suffered severe bodily injuries. It was undisputed that defendant was not under the influence of alcohol or drugs when the collision occurred.

Defendant contended that the court erred in refusing his request to submit careless driving resulting in bodily injury as a lesser-included offense of vehicular assault (reckless) in the jury instructions. However, vehicular assault (reckless) does not include all of the essential elements of a careless driving offense. Therefore, careless driving is not a lesser-included offense of vehicular assault (reckless), and the trial court did not err in refusing to provide defendant’s requested instruction.

Defendant also contended that he cannot have simultaneously been reckless, criminally negligent, and careless—the culpable mental states required for his convictions—in the course of a single accident. Because no element of one offense negates an element of another, defendant’s convictions are not legally inconsistent.

Defendant further contended that his careless driving and criminally negligent homicide convictions concerning D.S. should merge because defendant “cannot be convicted of negligently killing him and carelessly killing him.” Unlike careless driving, however, criminally negligent homicide does not contain a driving element. Accordingly, careless driving is not a lesser-included offense of criminally negligent homicide. Further, criminally negligent homicide requires a more culpable mental state than careless driving. Therefore, criminally negligent homicide is not a lesser-included offense of careless driving and defendant’s convictions for criminally negligent homicide and careless driving do not merge.

Summary and full case available here.

Colorado Court of Appeals: Prohibitions on Sexual Contact and Possessing Pornography Reasonably Related to Rehabilitation and Purposes of Probation

The Colorado Court of Appeals issued its opinion in People v. Lientz on July 19, 2012.

Probation—Revocation—Sexual Exploitation of a Child—Sexual Assault—Unconstitutional—Due Process—Aggravated Sentencing.

Defendant appealed the district court’s order revoking his probation and the sentences imposed. The order was affirmed, the sentences were vacated, and the case was remanded.

Defendant pleaded guilty in Case No. 01CR1323 to two counts of sexual exploitation of a child and one count of sexual assault on a child by one in a position of trust. Defendant also pleaded guilty in Case No. 01CR1348 to sexual exploitation of a child. Defendant’s probation was revoked for failing to comply with the requirements of his probation, and the court sentenced defendant to two concurrent indeterminate terms of fifteen years to life imprisonment in the custody of the Department of Corrections (DOC).

Defendant contended that the district court committed plain error in failing to conclude at the probation revocation hearing that two of the probation conditions he violated—the conditions prohibiting sexual contact without prior approval and possessing pornography—are not statutorily or constitutionally authorized. By possessing pornography and engaging in sexual relationships plainly relate to sex, defendant committed sex crimes, and the testimony of defendant’s treatment provider and probation officer supported these conditions. Accordingly, the district court did not commit error by failing to conclude that the two challenged probation conditions were not reasonably related to defendant’s rehabilitation and the purposes of probation under CRS § 18-1.3-204(2)(a)(XV). Further, defendant failed to assert any facts to support his claim that the challenged conditions violated his constitutional rights to liberty, privacy, and freedom of association, nor did he present any argument to show that the prohibition of possession of pornography was unconstitutionally overbroad. Finally, the probation requirements prohibiting “sexual contact” and “possession of pornography” were not unconstitutionally vague.

Defendant also contended that the district court violated his right to due process by not stating the reasons for revoking his probation or citing the evidence on which the court relied. However, the court specifically cited the evidence it relied on—the testimony of defendant’s probation officer and his treatment provider. Although lacking specificity, the court’s findings were sufficient under these circumstances because the evidence was uncontroverted. Accordingly, the court did not violate defendant’s right to due process.

Defendant further argued, the People conceded, and the Court of Appeals agreed that the sentences must be vacated and the case remanded for resentencing because the district court imposed aggravated sentences without making the necessary findings under CRS § 18-1.3-401(6) and (7). Therefore, the sentences were vacated and the case was remanded to the court to determine whether aggravated sentencing was appropriate.

Summary and full case available here.

Colorado Court of Appeals: No Abuse of Discretion in Denying Request for Expert to Testify Via Videoconferencing

The Colorado Court of Appeals issued its opinion in People v. Casias on July 19, 2012.

First-Degree Murder of a Child—Expert Testimony—Videoconferencing—Other Acts Evidence.

Defendant appealed the judgments of conviction entered on jury verdicts finding him guilty of first-degree murder (causing the death of a child under the age of 12 by one in a position of trust) and knowing or reckless child abuse resulting in death. The judgments were affirmed.

Defendant’s girlfriend left defendant at home with their 7-week-old baby, J.C., who became unresponsive in defendant’s care and died. It was determined that before her death, J.C. had sustained fractures to her skull and rib, hemorrhages in both her retinas, severe swelling of her brain, and bruising on her forehead.

Defendant contended that the trial court erred when it precluded a defense expert from testifying live via videoconferencing equipment. Despite the late endorsement, the court permitted defendant’s expert to testify in person, and the court did not abuse its discretion in denying defendant’s request for the expert to testify via videoconferencing.

Defendant also contended that the trial court erroneously admitted evidence that he had, on two occasions, mistreated his daughter A.C. The acts against A.C., however, did not result in serious injury or death to A.C. Because of the dissimilarities between the prior acts against A.C. and the alleged acts against J.C., the prior acts against A.C. were not relevant to prove the culpable mental state element of child abuse resulting in death. Consequently the trial court abused its discretion in admitting them for this purpose. Defendant, however, failed to demonstrate prejudicial error. Therefore, the judgments of conviction were affirmed.

Summary and full case available here.

Colorado Court of Appeals: Complicitor Liability Does Not Apply to Strict Liability Crime of Vehicular Assault Because Crime Does Not Require Culpable Mental State

The Colorado Court of Appeals issued its opinion in People v. Childress on July 19, 2012.

Child Abuse—Serious Bodily Injury—Vehicular Assault (DUI)—Complicitor Liability—Bill of Particulars—Unanimity Instruction—Sentencing—Crim.P. 25.

Defendant appealed his judgment of conviction entered on a jury verdict finding him guilty of child abuse resulting in serious bodily injury, vehicular assault (driving under the influence (DUI)), driving while impaired by alcohol, reckless endangerment, reckless driving, and two counts of contributing to the delinquency of a minor. He also appealed the sentence imposed. The judgment was affirmed in part, vacated in part, and reversed in part, and the case was remanded.

After consuming alcohol at a party, defendant drove his 3-year-old son, K.C., his 17-year-old son, B.L., and B.L.’s 19-year-old girlfriend, H.T., to defendant’s house in Aurora. They then decided to return to the party. B.L. drove, defendant did not restrain K.C., and they were involved in an accident where K.C. sustained severe injuries.

Defendant contended on appeal that his vehicular assault conviction must be vacated because there cannot be complicitor liability for vehicular assault (DUI). The Court of Appeals held, as a matter of first impression in Colorado, that complicitor liability does not apply to the strict liability crime of vehicular assault (DUI) because the crime does not require a culpable mental state. Therefore, defendant’s conviction for vehicular assault (DUI) was vacated.

Defendant also contended that his conviction for child abuse must be reversed because the trial court failed to require a bill of particulars and failed to require the prosecution to elect which act of child abuse supported his conviction, or, in the alternative, failed to give a unanimity instruction. The prosecution presented evidence that defendant took K.C. to a party where underage drinking and drug use was occurring, forced K.C. to drink alcohol, placed K.C. in a dryer and closed the door, took K.C. out in the cold without proper clothing, drove a vehicle while impaired with K.C. as an unrestrained passenger, and allowed B.L. to drive a vehicle while impaired with K.C. as an unrestrained passenger. Because the prosecution presented several acts that could form the basis of child abuse under CRS § 18-6-401(1)(a), the jury instructions given here did not ensure that the jury’s verdict was unanimous. Therefore, defendant’s conviction for child abuse was reversed.

Defendant further argued that his sentences must be vacated because the judge who conducted his trial was not the same judge who sentenced him. Because the record does not indicate the reason for the substitution, the case was remanded for an explanation pursuant to Crim.P. 25.

Summary and full case available here.

Tenth Circuit: Certificate of Appealability Denied Except to Amend Motion to Add Claims that Counsel Was Ineffective for Failing to Challenge Calculation of Criminal History

The Tenth Circuit Court of Appeals published its opinion in United States v. Roberts on Friday, July 20, 2012.

The Tenth Circuit granted Petitioner a certificate of appealability (COA) on one issue, and denied it regarding all other issues. Petitioner sought a COA so he could appeal the district court’s denial of the motion to vacate, set aside, or correct sentence after being convicted of being a felon in possession of a firearm. The judgment of conviction was affirmed by the Tenth Circuit in 2011 but later raised four claims of ineffective assistance of trial counsel. The district court denied relief on all four claims.

Petitioner cannot appeal the denial of his motion until he first obtains a COA from the Tenth Circuit. “To be entitled to a COA, [Petitioner] must make ‘a substantial showing of the denial of a constitutional right.’ To make the requisite showing, he must demonstrate ‘that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.’ . . . Although [Petitioner] need not demonstrate his appeal will succeed to be entitled to a COA, he must ‘prove something more than the absence of frivolity or the existence of mere good faith.’ In his COA application and appellate brief, [Petitioner] challenges the district court’s disposition of his four claims and also argues the court abused its discretion by refusing to permit him to amend his § 2255 motion.”

The Court concluded that Petitioner “is not entitled to a COA on any claim except the one relating to the district court’s refusal to permit him to amend his § 2255 motion to add claims his trial and appellate counsel were ineffective for failing to challenge the calculation of his criminal history. The district court’s resolution of the remaining claims on which [Petitioner] seeks a COA is not reasonably subject to debate and the other issues he seeks to raise on appeal are not adequate to deserve further proceedings.”

Tenth Circuit: Unpublished Opinions, 7/20/12

On Friday, July 20, 2012, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Whitmore v. Jones

Republic Underwriters Ins. Co. v. Moore

Sky Harbor Air Serv., Inc. v. Reams

United States v. Wormley

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.