April 22, 2019

Archives for January 7, 2015

Nicholas Catanzarite Appointed to Grand County Court

nickOn Tuesday, January 6, 2015, Lieutenant Governor Joe Garcia announced the appointment of Nicholas Catanzarite to the Grand County Court bench in the Fourteenth Judicial District. Catanzarite will fill a vacancy created by the non-retention of Hon. Ben McClelland in the 2014 mid-term election. The appointment is effective January 13, 2015

Catanzarite is currently an attorney at Peters Mair Wilcox in Winter Park, where he primarily practices criminal defense with an emphasis on alcohol and drug offenses. He has worked at Peters Mair Wilcox since being admitted to the Colorado bar in 2012. Prior to law school, Catanzarite was a member of the U.S. Disabled Ski Team for eight years. He is a three-time paralympian, and was awarded the Willy Schaeffler Scholarship for a disabled scholar-athlete to attend DU from 2007-2011. During law school, Catanzarite worked at DU’s renowned civil rights legal clinic as a student attorney.

For more information about the appointment, click here.

Tenth Circuit: Insurance Exclusions for Broadcasting Applied to Dish Network’s Business

The Tenth Circuit Court of Appeals issued its opinion in Dish Network Corp. v. Arrowood Indemnity Co. on Tuesday, November 25, 2014.

Between 2001 and 2004, Dish Network purchased primary and excess commercial general liability insurance policy from five insurers: Arrowood Indemnity Company; Travelers Insurance Company of Illinois; XL Insurance of America, Inc.; National Union Fire Insurance Company of Pittsburgh, PA; and Arch Specialty Insurance Company. In 2007, Dish was a defendant in a patent infringement suit brought by Ronald A. Katz Technology Licensing, L.P. (RAKTL). Dish requested its five insurers to defend it in the patent infringement action, but they declined. Dish brought suit against the insurers, seeking a judgment that they had a duty to defend and also alleging breach of contract and the duty of good faith and fair dealing. The district court granted summary judgment to the insurers, but on appeal, the Tenth Circuit remanded for further determination of the issues (DISH Network Corp. v. Arch Spec. Ins. Co., 659 F.3d 1010 (10th Cir. 2011) (DISH I)). On remand, the insurers again moved for summary judgment but on different grounds. The district court again granted summary judgment, and Dish appealed.

Dish’s first argument on appeal was that the district court violated the law of the case and exceeded the scope of its jurisdiction by allowing the insurers to present new arguments on remand. The Tenth Circuit evaluated the law of the case doctrine and its prior decision, and determined that the district court was not precluded from allowing additional arguments on remand. The district court properly looked to the Tenth Circuit’s mandate for restrictions on appeal, and exercised its discretion accordingly. The Tenth Circuit did not decide that the insurers had a duty to defend Dish in DISH I. Rather, the Tenth Circuit noted that the district court did not decide several issues regarding the duty to defend. It did not preclude the court from resolving additional duty-to-defend issues on remand.

In its second, third, and fourth points on appeal, Dish challenged the district court’s grant of summary judgment to the insurers. The district court concluded that the policies’ business exclusions for “broadcasting” and “telecasting” precluded coverage. Dish argued that its business did not fall under these terms because Dish provides service only to specific subscribers, not the public at large. The Tenth Circuit looked to the plain meaning of “broadcasting” and “telecasting” and found the definitions to encompass Dish’s business activity. Dish’s attempt to draw a distinction between subscription broadcasting and public broadcasting made no sense in the business exclusion sense, and the Tenth Circuit found that the terms in the policy language encompassed Dish’s business activity. The Tenth Circuit found that coverage for Dish’s business activity was unavailable under the policies at issue.

Next, the Tenth Circuit turned its attention to Dish’s umbrella policies provided by National, Arch, and XL. Because the Tenth Circuit had found that coverage was unavailable under the primary policies, the umbrella policies were not implicated and summary judgment to these three insurers was appropriate. Dish conceded that summary judgment in favor of Arch was appropriate, and the district court noted that even if the National and XL policies were available, the coverage would have been excluded because they contained the same language regarding advertising injuries when engaged in the business of broadcasting.

The district court’s grant of summary judgment was affirmed as to all insurers.

Tenth Circuit: Death Row Inmate Cannot Show Ineffective Assistance for Failure to Call Witness

The Tenth Circuit Court of Appeals issued its opinion in Jones v. Trammell on Friday, December 5, 2014.

On July 28, 1999, Paul Howell was fatally shot in his Suburban in his parents’ driveway in Oklahoma City. Two days later, police found Howell’s Suburban, canvassed the neighborhood where it was found, spoke to various people, and eventually investigated Julius Jones as the suspect in the killing and robbery. Police also investigated Christopher Jordan as the co-conspirator. Police obtained a warrant to search Jones’ parents’ house, where they found the gun used to shoot Howell wrapped in the bandanna worn during the robbery hidden in a hole in the ceiling above Jones’ room. Police found the weapon’s magazine hidden inside the door chime housing.

Jones and Jordan were charged conjointly with conspiracy to commit a felony and with the murder of Howell. Jones was also charged with possession of a firearm by a convicted felon. Jordan pleaded guilty and agreed to testify against Jones as part of his plea agreement. After a jury trial, Jones was convicted on all three charges. He was sentenced to death on the murder charge, 25 years’ imprisonment on the conspiracy charge, and 15 years’ imprisonment on the weapon charge, to run concurrently.

Jones filed a direct appeal with the Oklahoma Court of Criminal Appeals (OCCA) asserting 19 propositions of error, including an ineffective assistance of counsel claim based on his trial counsel’s failure to call Emmanuel Littlejohn as a witness. Littlejohn was Jordan’s cellmate, to whom Jordan had confided that Jones was not involved in the murder and robbery and that Jordan had committed the crimes. Jones’s trial counsel, David McKenzie, in his affidavit, stated he had personally interviewed Littlejohn and spoken to Littlejohn’s attorneys, and had decided not to call him as a witness due to concerns about his credibility. The OCCA affirmed Jones’s convictions and sentences, and expressly rejected his ineffective assistance claim. Jones filed a petition for rehearing and motion to recall the mandate. The OCCA granted the rehearing petition but ultimately concluded there was no merit to Jones’s issues on rehearing and denied the mandate motion. The U.S. Supreme Court denied certiorari.

Jones filed an original application for post-conviction relief with the OCCA while his direct appeal was still pending. Proposition One alleged various instances of ineffective assistance of counsel, including allegations that another inmate also overheard Jordan claiming responsibility for the robbery and murder and alleging ineffective assistance for his counsel’s failure to discover this witness. The OCCA denied Jones’s petition for post-conviction relief and expressly rejected Jones’s argument about the other inmate. Jones then filed a petition for federal habeas relief, again asserting an ineffective assistance of counsel claim based on his counsel’s failure to explore the other inmate’s corroborating testimony. The district court denied his petition and refused to issue a COA. The Tenth Circuit subsequently issued a COA on the issue of whether trial counsel provided ineffective assistance by failing to investigate Littlejohn’s claim.

The Tenth Circuit evaluated Jones’s ineffective assistance claim based on the standard set forth in the U.S. Supreme Court decision in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, the defendant must show that (1) counsel committed serious errors such that the legal representation fell below an objective standard of reasonableness [the performance prong], and (2) there is a reasonable probability that but for counsel’s errors the result of the proceeding would have been different [the prejudice prong]. Jones conceded that the OCCA’s resolution of the ineffective assistance claim he raised on direct appeal “was likely reasonable.” Jones instead asserted that McKenzie’s failure to seek corroboration of Littlejohn’s proposed testimony was error.

The Tenth Circuit rejected Jones’s arguments, finding them based on the erroneous premise that the OCCA’s resolution rested on Strickland‘s performance prong. The Tenth Circuit instead discerned that the OCCA examined the proffered testimony and decided it would not alter the outcome of the proceedings, therefore implicating the prejudice prong. This effectively disposed of Jones’s arguments on appeal, and the Tenth Circuit affirmed the district court’s denial of Jones’s habeas petition.

Tenth Circuit: Unpublished Opinions, 1/6/2015

On Tuesday, January 6, 2015, the Tenth Circuit Court of Appeals issued one published opinion and seven unpublished opinions.

United States v. Dahl

Fogle v. Gonzales

United States v. Moore

Brainerd v. Schlumberger Technology Corp.

Diebold Enterprises Security Systems, Inc. v. Low Voltage Wiring, Ltd.

Bryant v. Sagamore Insurance Co.

United States v. Sackett

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.