August 24, 2019

Archives for August 2012

Tenth Circuit: Unpublished Opinions, 8/30/12

On Thursday, August 30, 2012, the Tenth Circuit Court of Appeals issued no published opinions and three unpublished opinions.

Hassoun v. Holder, Jr.

United States v. Perry

Pinson v. Berkebile

No case summaries are provided for unpublished opinions.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

Tenth Circuit: Failure to Swear in Jury Not Plain Error

The Tenth Circuit published its opinion in United States v. Turrietta on August 29, 2012.

Turrietta’s attorney knew the jury was not sworn in but deliberately failed to object until after the verdict convicting his client was in and the jury had been excused. The failure to contemporaneously object meant the court analyzed the unsworn jury issue for plain error. The court did not decide whether failure to give the oath violated the defendant’s Sixth Amendment right to a jury trial as alleged because even if it did, it was not plain error. There is “no binding authority, whether in the form of a constitutional provision, statute, rule, or judicial decision, addressing whether the Sixth Amendment right to trial by jury necessarily requires the jury be sworn.” Therefore, failure to give the oath could not be an “obvious” error.

Tenth Circuit: Leave of Absence as ADA Reasonable Accommodation Has Limits

The Tenth Circuit published its opinion in Robert v. Board of County Commissioners on August 29, 2012.

Catherine Robert was terminated from her offender supervision officer position after being out on FMLA leave for surgery. She sued the county, its commissioners, and her supervisor for FMLA leave retaliation, ADA discrimination, breach of contract, and violation of due process rights. Summary judgment was granted on all claims in favor of all defendants and the Tenth Circuit affirmed.

At the time of her termination, the plaintiff was unable to perform an essential function of her job: offender site visits. A few weeks after her FMLA leave expired, she was still unable to walk unassisted. The Tenth Circuit stated that a leave of absence can be a reasonable accommodation under the ADA, but an open-ended leave may not be reasonable. “The employee must provide the employer an estimated date when she can resume her essential duties.” A second limitation on leaves is duration. “A leave request must assure an employer that an employee can perform the essential functions of her position in the ‘near future.’” The court did not define a reasonable duration , but did reference an Eighth Circuit case that held six months to be unreasonable. The court mentioned the small size of the plaintiff’s department and the strain her inability to perform site visits and other duties put on her co-workers.

The Tenth Circuit held Robert’s prima facie FMLA retaliation claim had been overcome by the employer’s legitimate reason for her termination: she failed to return to work with a required release at the end of her FMLA leave. Robert’s other claims failed because public employees in Kansas are at-will.

Tenth Circuit: Unpublished Opinions, 8/29/12

On Wednesday, August 29, 2012, the Tenth Circuit Court of Appeals issued three published opinions and five unpublished opinions.

United States v. Bell

United States v. De Lucio-Olvera

United States v. Herget

Ramsey v. Citibank

Tilley v. Maier

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

Colorado Court of Appeals: Announcement Sheet, 8/30/12

On Thursday, the Colorado Court of Appeals issued eight published opinions and thirty-one unpublished opinions.


People v. Doubleday

In re the Parental Responsibilities of D.T., a Child, and Concerning Lavattiata

Hanson v. Colorado Department of Revenue

Stulp v. Schuman

Progressive Casualty Insurance Company v. Moore

Colorado Off-Highway Vehicle Coalition v. Colorado Board of Parks and Outdoor Recreation

Colorado Common Cause v. Gessler

Communications Workers of America 7717 v. Industrial Claim Appeals Office

Summaries of published cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Ruth Acheson Appointed as New Mineral County Court Judge

On Thursday, August 30, 2012, Governor John Hickenlooper appointed Ruth Acheson to serve as a county court judge in the Twelfth Judicial District, which serves Mineral County. Acheson will fill the vacancy created by the retirement of the Honorable F. Stennard Lentz, effective January 8, 2013.

Acheson currently is in private practice for the Law Office of Ruth M. Acheson, a position she has held since 2004. Her practice consists exclusively of child protective issues. Prior to starting her own firm, Acheson worked as a public defender in the Twelfth Judicial District for nearly twenty years.

Acheson earned her bachelor’s degree from the University of Colorado and her law degree from Indiana University Maurer School of Law.

Tenth Circuit: Student’s Restrictive Desk Not a Violation of Equal Protection, the Fourth Amendment, or the Fourteenth Amendment

The Tenth Circuit issued its opinion in Ebonie S. v. Pueblo School Dist. 60 on August 28, 2012.

This appeal required the Tenth Circuit to decide whether the use of a particular desk in special education classrooms is permissible under the United States Constitution. The desks in question wrap around the student on the front and the sides and have a securing bar that  runs behind the student’s chair. A student can only remove herself by sliding under or crawling over the desk’s surface when the bar is in place. In a kindergarten special education classroom in Pueblo, Colorado, Ebonie S., a young girl with multiple disabilities, was often required to sit in this type of desk. Ebonie’s mother, Mary S., filed suit on her behalf  contending that the use of the  desk violated the Fourth Amendment, the Due Process Clause, and the Equal Protection Clause. The district court granted summary judgment to defendants on the constitutional claims. Plaintiff appealed the grants of summary judgment, and the Tenth Circuit affirmed.

The Court noted that, although students do not shed their constitutional rights at the schoolhouse gate, federal courts have long recognized that government action impermissible in other spheres may be proper in the school setting. The Court further stated that the rights of students in the public schools are not automatically coextensive with the rights of adults in other settings. The Court also stated that some in-school disciplinary measures that restrict a student’s movement present only a de minimis level of imposition with which the Constitution is not concerned.

In light of this precedent and the record, the Court concluded that the desk’s limitation on Ebonie’s movement did not significantly exceed that inherent in every-day, compulsory school attendance. Accordingly, it held that Ebonie failed to demonstrate a cognizable seizure under the Fourth Amendment.

Plaintiff also contended that the desk violated Ebonie’s Fourteenth Amendment rights by restricting her liberty without due process. In light of its conclusion that the restrictions placed on Ebonie did not substantially exceed those inherent in compulsory education, the Court concluded that Ebonie’s liberty interest in freedom from bodily restraint was not implicated.

Finally, Plaintiff made an Equal Protection claim contending that the desk infringed on Ebonie’s fundamental right to be free from bodily restraint. Since Plaintiff cited no case holding that an in-school limitation of movement, especially one that was not significantly more restrictive than those imposed on all students, implicates this fundamental right, it was unwilling to subject every teacher’s order that limits the freedom of a student to strict constitutional scrutiny. AFFIRMED.

Tenth Circuit: Court Denied Defendant’s Claims that His Statements Were Involuntary and that He Received Ineffective Assistance of Counsel

The Tenth Circuit published its opinion in Davis v. Workman on August 28, 2012.

An Oklahoma jury convicted Defendant Davis of the first degree murder and rape of Josephine “Jody” Sanford. After unsuccessfully appealing to the Oklahoma Court of Criminal Appeals (OCCA),  and pursuing postconviction relief in state court, Defendant unsuccessfully sought relief under 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. The district court denied a certificate of appealability (COA) but the Tenth Circuit granted a COA on three issues: (1) whether Defendant’s statements to police officers while he was hospitalized were knowing, intelligent, and voluntary; (2) whether his counsel was ineffective in failing to present scientific evidence that he was impaired while making those statements; and (3) whether Defendant’s trial and appellate counsel were ineffective for failing to present evidence and argue that his hospital statements were coerced by the officers’ refusing to allow him to receive morphine for his pain until they had completed their questioning.

The Court’s review in a § 2254 proceeding is highly deferential.

(1) Defendant contended that his morphine medication kept him from being fully aware of the rights being abandoned during the second hospital interview. Statements to the police during a custodial interrogation are inadmissible if the defendant did not waive his Miranda rights knowingly and voluntarily. What Defendant presented on appeal failed to overcome the deference owed to the OCCA decision. The expert report merely stated that there was a possibility of impairment from the medication. The Tenth Circuit held that the state court did not unreasonably determine the facts or unreasonably apply clearly established federal law in concluding that Defendant knowingly and intelligently waived his rights.

(2) Defendant argued his counsel was ineffective in failing to present scientific evidence that he was impaired while making statements in the hospital. To succeed on an ineffectiveness-of-counsel claim, Defendant must show: that counsel’s representation fell below an objective standard of reasonableness, rendering his or her performance deficient, and that the deficiency prejudiced the defense through errors so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. To demonstrate prejudice, a defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the jury would have had a reasonable doubt respecting guilt.  The Tenth Circuit held that Defendant did not make the necessary showing that the OCCA “unreasonably concluded that [he] was not prejudiced” by counsel’s failure to present at trial the additional evidence of impairment.

(3) Finally, Defendant contends that his trial and appellate counsel were ineffective for failing to present evidence and argue that his hospital statements were coerced by the officers’ refusing to allow him to receive morphine for his pain until they had completed their questioning. For Defendant to prevail on his claim of ineffective assistance of counsel, he must establish that any competent attorney would have raised the morphine coercion claim and that he was prejudiced by the failure of his attorneys to do so. However, the Court found the evidence that Defendant felt coerced by the withholding of morphine very weak, if not nonexistent. Accordingly, this claim was also denied.

Tenth Circuit: Sentence Vacated Because Predicate Convictions Did Not Qualify for ACCA’s Enhanced Sentencing Provisions

The Tenth Circuit published its opinion in United States v. Hoyle on August 28, 2012.

Defendant-Appellant Hoyle appealed his conviction for being a felon in possession of a firearm, and also appealed his sentence under the Armed Career Criminal Act (“ACCA”) to 262 months’ imprisonment. In the conviction challenge, Mr. Hoyle contended that the government offered insufficient evidence that he possessed a firearm, and that the charged possession affected interstate commerce. The Tenth Circuit rejected Mr. Hoyle’s arguments and affirmed his conviction.

In the sentencing challenge, Mr. Hoyle argued that two of the three prior convictions relied upon by the district court (both were Kansas state law convictions) do not qualify as predicate convictions for the ACCA’s enhanced sentencing provisions. Specifically, Mr. Hoyle argued that the two Kansas convictions are not such qualifying  predicates because the convictions no longer disqualify him from possessing firearms as a matter of state law. The Court agreed that Mr. Hoyle’s firearm possession rights were restored by operation of state law, thus precluding either of the two state convictions from qualifying as ACCA predicates. The Tenth Circuit therefore vacated Mr. Hoyle’s sentence, and remanded to the district court for resentencing.

Tenth Circuit: Importance of Preserving Your Best Arguments in the Proper Administrative Forum

The Tenth Circuit published its opinion in Public Service Company of New Mexico v. National Labor Relations Board on August 28, 2012.

Robert Madrid worked for Public Service Company of New Mexico (PNM), collecting overdue bills for the electric utility. Angered by a particularly obstinate customer and without his supervisor’s permission, Mr. Madrid drove to the customer’s home and disconnected the gas line that was not provided by PNM, but another utility. PNM fired Mr. Madrid.  Mr. Madrid’s union filed a grievance on his behalf contesting his dismissal. The union argued that Mr. Madrid’s firing violated its collective bargaining agreement with the company. The union hypothesized that Mr. Madrid may have treated more harshly than other employees guilty of similar things.

The union sent PNM a discovery request demanding documents showing whether and to what extent PNM had disciplined other employees who, like Mr. Madrid, violated the company’s ethics policy or state law.

PNM provided documents disclosing disciplinary actions taken against union employees, but it refused to provide information about discipline meted out on non-union workers.  The company argued that information about non-union employees was irrelevant. PNM eventually handed over the requested documents. However, because of its many months of delay, the Board found that PNM had engaged in an unfair labor practice.  The Board ordered PNM to post a notice informing employees of their rights under the law, PNM’s violation, and the company’s promise to do better going forward.

PNM now petitions the Tenth Circuit for review of the Board’s decision and the Board cross-petitions asking us to enforce its order.  The only question the company raises on appeal is whether the disciplinary information about non-union employees was relevant to the union’s processing of Mr. Madrid’s grievance.

The most significant relevance objections PNM seeks to press in the Tenth Circuit never made their way into the proceedings before the Board. And under 29 U.S.C. § 160(e),  “No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.”

The Tenth Circuit divided PNM’s appeal into two parts: the set of objections it preserved by raising them with the Board, and the set it did not.

Taking the first group first, the Court agreed to hear PNM’s claims that (1) information about the discipline of non-union employees is irrelevant because non-union employees aren’t “similarly situated” to union employees, (2) the union was obliged to timely explain the relevance of its information; and (3) the union’s request was motivated by an improper purpose.

Regarding PNM’s first objection, because the rules serving as the basis for Mr. Madrid’s termination applied to union and non-union employees equally, the documents were held to be relevant. In response to the second objection, the Court found the record contained substantial evidence that the union did timely apprise PNM of the basis for its request. In response to PNM’s third objection, the Court held that PNM did not carry its burden to show affirmatively that the Board’s findings are ones no reasonable mind could accept.

The Court held it had no authority to hear the remainder of PNM’s objections because PNM never raised them with the Board as required by 29 U.S.C. § 160(e). Accordingly, PNM’s petition for review was denied, and the Board’s cross-petition for enforcement of its order was granted.

Tenth Circuit: Unpublished Opinions, 8/28/12

On Tuesday, August 28, 2012, the Tenth Circuit Court of Appeals issued four published opinions and three unpublished opinions.

Lucero v. Sandia Corporation

United States v. Rivers

Berry v. State of Oklahoma

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

Revised Adoption, Appeals, Civil Court, and Juvenile Forms Issued by Colorado State Judicial

The Colorado State Judicial Branch has continued to revise forms through July and August. The most recently revised forms include forms from the adoption, appeals, county civil, district civil, and juvenile categories. Practitioners should begin using the revised forms immediately.

Most forms are available in Adobe Acrobat (PDF) and Microsoft Word formats; many are also available as Word and Excel templates. Download the new forms from State Judicial’s individual forms pages, or below.


  • JDF 501 – “Petition for Adoption” (Revised 7/12)
  • JDF 502 – “Petition for Stepparent Adoption” (Revised 7/12)
  • JDF 503 – “Petition for Custodial Adoption” (Revised 7/12)
  • JDF 505 – “Petition for Kinship Adoption” (Revised 7/12)


  • JDF 638 – “Complaint for Review of Administrative Action of the Colorado Department of Corrections” (Revised 8/12)
  • JDF 235 – “Notice of Record Certified to County Court – E-470 Case” (Revised 7/12)


  • JDF 421 – “Petition for Change of Name of Minor Child” (Revised 7/12)


  • JDF 620 – “Instructions for Filing a Response to a Rule 120 Notice” (Revised 7/12)


  • JDF 542 –  “D&N Motion for Special Action” (Revised 7/12)
  • JDF 543 – “Order Regarding D&N Motion for Special Action” (Revised 7/12)
  • JDF 544 – “D&N Report of Special Action” (Revised 7/12)

All of State Judicial’s forms may be found here.