Appellate Law & Practice

This blog is devoted to appellate law and will provide case summaries and links to articles on appellate advocacy. Please send your news and views to Appellate [at] gmail [dot] com. We also welcome new contributors. Email us if you are interested.

Monday, November 22, 2004

CA2 (10.22.04)

On Friday, I composed a lengthy post about the three then-newly released Second Circuit opinions. Unfortunately, Blogger promptly ate my post, so all you get now is the quick and dirty version. You're not missing much.

In Gill v. Pidlypchak, the court reversed the dismissal of a prisoner's First Amendment retaliation claim. The district court had dismissed finding that the alleged adverse action did not have an actual "chilling" effect on his First Amendment rights because he had filed four more lawsuits and at least thirty-five grievances. The CA2 reversed, holding that Gill adequately alleged retaliatory behavior "that would deter a prisoner of ordinary firmness from vindicating his or her constitutional rights through the grievance process and the courts." Chief District Judge Scullin concurred.

Next, in Doe v. Menefee, the CA2 affirmed the denial of a habeas petition as time-barred. Judge Pooler dissented, arguing that Doe had made a credible showing of actual innocence. (The district court had made the same determination, but found that the showing of actual innocence was not a basis on which to excuse the lateness of petitioner's filing).

Third, in Dobson v. Hartford Financial Services Group, the court affirmed in party and reversed in part a grant of summary judgment on plaintiff's ERISA claims. Sorry, I just don't have the strength to go through this one again.

Finally, in United States v. Richard Williams (no relation to Serena and Venus), the court affirmed the district court's refusal to permit Williams to present defenses of necessity and innocent possession to his gun possession charges. The court also affirmed the refusal to give a two level sentencing adjustment for acceptance of responsibility.

ALSO: Updating a decision I orginally blogged about here, an Alabama jury deadlocked on Friday causing a mistrial in a suit brought by the state's pension fund in the aftermath of the Worldcom scandal and bankruptcy. Readers may recall that the Alabama trial was able to go forward when the CA2 reversed Judge Cote's injunction under the All Writs Act.

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