ORDER This matter is before the court to direct that our original decision dated December 14, 2010 be reissued as a published opinion. Specifically, the clerk is directed to reissue the decision for publication nunc pro tunc to the original filing date. In addition, we note that in reissuing the opinion, we have added two footnotes: a new footnote 2 and footnote 7. The decision remains the same in all other respects. BRISCOE, Chief Judge. Plaintiff Jeffrey Matthews, an Oklahoma state...
HOLMES, Circuit Judge. This appeal asks us to explore the relationship between an Indian tribe and the economic entities created by the tribe, and to determine how close that relationship must be in order for those entities to share in the tribe's sovereign immunity. Plaintiff Breakthrough Management Group, Inc. ("BMG"), a provider of business management training and consulting services, filed suit in the United States District Court for the District of Colorado in August 2006. BMG alleged...
O'BRIEN, Circuit Judge. In 1978, the Wyoming Supreme Court abrogated sovereign immunity for counties, municipal corporations, school districts, and other subdivisions of the government. Oroz v. Bd. of Cnty. Comm'rs of Cnty. of Carbon, 575 P.2d 1155 , 1158 (Wyo. 1978). In response, the Wyoming legislature enacted the Wyoming Governmental Claims Act (WGCA), Wyo. Stat. Ann. 1-39-101 to 121, which became effective on July 1, 1979. See Scott v. Sch. Dist. No. 6, 815 F.Supp. 424 , 426 (D....
TYMKOVICH, Circuit Judge. In this immigration appeal, we are asked to determine whether a decision under 8 U.S.C. 1155 to revoke a petition for immigrant status is discretionary. If so, the decision is unreviewable in district court, because 8 U.S.C. 1252(a)(2)(B)(ii) strips courts of the jurisdiction to review certain discretionary decisions. 1 Like the parties, the district court believed that this was a question of first impression in this circuit; it predicted we would follow those...
HOLMES, Circuit Judge. Defendant-Appellant Paul Andrew Larson was convicted of manufacturing or attempting to manufacture methamphetamine in violation of 21 U.S.C. 841(a)(1) and possessing precursor chemicals with the intent to manufacture methamphetamine in violation of 21 U.S.C. 841(c). On appeal, Mr. Larson argues, inter alia, that his right to a speedy trial under the Speedy Trial Act, 18 U.S.C. 3161-3174, and the Sixth Amendment was violated. Exercising jurisdiction under 28 U.S....
ORDER This matter is before the court on defendants/appellees' Petition For Rehearing With Suggestion For Rehearing En Banc. Also before the court is the Utah Highway Patrol Association's Petition For Rehearing En Banc. We also have responses to both petitions from the plaintiffs/appellants. Upon consideration, the requests for panel rehearing are granted in part. Specifically, the original panel opinion is amended at line 12 of page 29 [616 F.3d at 1161] replacing the word "universally"...
ORDER This matter is before the court on non-party Renee Dittrich's Petition To Redact Personally Identifying Information From Previously Published Opinion. In her motion, Ms. Dittrich asks the court to withdraw the opinion filed in this matter originally on March 9, 2001, and to replace it with a redacted version which deletes her name. She also asks for other related relief. Upon consideration, the motion is granted in part. The clerk is directed to withdraw the prior opinion. A new...
HARTZ, Circuit Judge. Danny Manzanares appeals the refusal of the district court to set aside a judgment dismissing his civil-rights claim against the City of Albuquerque. Mr. Manzanares's claim against the City was based on alleged misconduct by Albuquerque police officer Sean Higdon. The district court dismissed the claim after judgment was entered in favor of Higdon in a separate suit by Mr. Manzanares against Higdon. Later, however, we reversed that judgment; and on retrial Mr. Manzanares...
BRISCOE, Chief Judge. Plaintiff Jeffrey Matthews, an Oklahoma state prisoner sentenced to death by lethal injection, appeals from the district court's denial of his motion for a preliminary injunction of the execution. Exercising jurisdiction pursuant to 28 U.S.C. 1292(a)(1), we affirm. * I Matthews was convicted in Oklahoma state court of first degree murder and sentenced to death. See Matthews v. Workman, 577 F.3d 1175 , 1178-79 (10th Cir.2009) (outlining factual and state procedural...
HARTZ, Circuit Judge. Contending that he was improperly transferred and constructively discharged, former Deputy Sheriff David Lauck sued Campbell County, the Campbell County Sheriff's Office (CCSO), and Campbell County Sheriff William Pownall (collectively, Defendants). He brought a state-law breach-of-contract claim and civil-rights claims under 42 U.S.C. 1983 alleging a denial of procedural due process and retaliation for speech protected by the First Amendment. 1 The United States...
BRISCOE, Chief Judge. This appeal presents a single issue, whether the district court erred in granting defendant James Reese's motion to dismiss an indictment which charged Reese with three counts of possessing firearms while subject to a domestic protection order, in violation of 18 U.S.C. 922(g)(8). Reese successfully raised an as-applied challenge to the indictment on the grounds that 922(g)(8) violated his Second Amendment right to keep and bear arms. The United States now appeals....
TYMKOVICH, Circuit Judge. This appeal arises from an 18-year rail pricing dispute between the Burlington Northern and Santa Fe Railway Company (BNSF) and the Public Service Company of Oklahoma (PSO). The question we must consider is whether the district court erred in confirming an arbitration board's decision despite BNSF's claims that the board misconstrued the parties' agreement and exceeded its authority by deciding a non-arbitrable issue. We AFFIRM. The arbitration clause in the...
ORDER DENYING CERTIFICATE OF APPEALABILITY * JEROME A. HOLMES, Circuit Judge. Jacinto Hernandez, a federal prisoner proceeding pro se, 1 appeals from the district court's denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. 2255. The district court denied Mr. Hernandez's application for a certificate of appealability ("COA"), and he now seeks a COA from this court. Exercising jurisdiction pursuant to 28 U.S.C. 1291 and 2253(a), we DENY Mr. Hernandez's...
ORDER DENYING CERTIFICATE OF APPEALABILITY MICHAEL R. MURPHY, Circuit Judge. Derek Williams, a federal prisoner, seeks to appeal the district court's denial of his 28 U.S.C. 2255 motion to vacate, set aside, or correct his sentence. The matter is before this court on Williams's request for a certificate of appealability ("COA"). 28 U.S.C. 2253(c)(1)(B) (providing no appeal may be taken from a "final order in a proceeding under section 2255" unless the movant first obtains a COA)....
ORDER DENYING CERTIFICATE OF APPEALABILITY MONROE G. McKAY, Circuit Judge. Petitioner, a Colorado state prisoner, seeks a certificate of appealability to appeal the district court's denial of his 28 U.S.C. 2254 habeas petition. After a jury trial, Petitioner was convicted on rape charges and sentenced to a lengthy term of imprisonment. Following unsuccessful efforts to challenge his conviction and sentence in the state courts, he filed his federal habeas petition, which raised twenty-four...
McKAY, Circuit Judge. In 1983, Plaintiff David Bryson was convicted of a rape and kidnapping he did not commit. At his trial, a forensic chemist employed by the Oklahoma City Police Department, Joyce Gilchrist, testified the hair and semen found at the scene of the crime were consistent with samples taken from Plaintiff. Plaintiff was incarcerated for seventeen years before his conviction was vacated based on exculpatory DNA test results, and it took another three and a half years before the...
BRISCOE, Chief Judge. Plaintiff-Appellant US Airways, Inc. ("US Airways") filed this action in the United States District Court for the District of New Mexico seeking to enjoin Defendants-Appellees New Mexico state officials ("New Mexico") from regulating, pursuant to the New Mexico Liquor Control Act ("NMLCA"), N.M. Stat. 60-3A-1 et seq., the alcoholic beverage service that airlines provide to passengers on flights. The district court concluded that federal law does not preempt the NMLCA...
LUCERO, Circuit Judge. Peter Helmut Becker appeals his sentence for receipt and possession of child pornography in violation of 18 U.S.C. 2252(a)(2) and (a)(4)(B). He argues that the district court erred in finding that his earlier Illinois conviction for solicitation of a minor qualified as "relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct of a minor" under 18 U.S.C. 2252(b)(1) and (2). Exercising jurisdiction under 18 U.S.C. 3742(a) and 28 U.S.C. 1291, we...
LUCERO, Circuit Judge. This case is before us on direct appeal of a felony criminal conviction and sentence. It arises from a poorly drafted indictment and a botched plea agreement. Pursuant to that agreement, Douglas Frownfelter pled guilty to a single misdemeanor count of theft of government funds in violation of 18 U.S.C. 641. Unfortunately, the United States mischaracterized this misdemeanor count as a felony and Frownfelter initially accepted this mischaracterization. Frownfelter...
ORDER This matter is before the court on Appellant's Petition For Panel Rehearing And Rehearing En Banc. Panel rehearing is granted for the limited purpose of correcting the decision filed originally on October 26, 2010. The revised opinion, filed nunc pro tunc to the original filing date, is attached. The request for panel rehearing is otherwise denied. The petition for rehearing en banc was transmitted to all of the judges of the court who are in regular active service. As no member of...
