Archives for posts with tag: ninja

This 2009 Habeas petition was denied in a strange story that involves a woman convicting in conspiring with mentally ill Renaissance Fair attendees to kill her father with a ninja sword.

Clara Jane Schwartz, Petitioner,
v
Gene M. Johnson, Respondent.

1:09cv98 (GBL/JFA)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA,
ALEXANDRIA DIVISION

Decided by August 3, 2009 by United States District Judge Gerald Bruce Lee.

Memorandum Opinion and Order

THIS MATTER is before the Court on Petitioner Clara Jane Schwartz’s Petition for Writ of Habeas Corpus for Prisoner in State Custody, pursuant to 28 U.S.C. § 2254. This case concerns the constitutionality of Ms. Schwartz’s conviction in the Virginia Circuit Court for Loudoun County for murder, conspiracy to commit murder, and two counts of solicitation to commit the murder of her father, Dr. Robert Schwartz. The issues before the Court are whether Ms. Schwartz was deprived of her 6th Amendment right to effective assistance of counsel at trial based on her defense counsel’s: 1) failure to timely and properly object to the introduction into evidence of Mr. Hulbert’s written confession and other inculpatory statements (claim A); and 2) failure to request jury instructions on the lesser included offenses of second degree murder and manslaughter and failure to argue alternative defenses based on the facts presented (claim B). Ms. Schwartz requests an evidentiary hearing to resolve the factual dispute as to whether trial counsel’s performance was informed and reasonable. The Court denies Ms. Schwartz request for an evidentiary hearing because there are no factual disputes to resolve. The Court finds that Ms. Schwartz has not demonstrated that the Supreme Court of Virginia applied the Strickland standard unreasonably or based its decision on an unreasonable determination of the facts because this Court has reviewed the records and determined that the court’s analysis is reasonable on both prongs.

I. BACKGROUND

On February 19, 2003, Ms. Schwartz was convicted in the Circuit Court of Loudoun County of murder, conspiracy, and two counts of solicitation to commit murder and sentenced to forty-eight years of imprisonment

In 2001, Ms. Schwartz attended James Madison University as a sophomore. (Trial Tr. 224.) Ms. Schwartz lived in Loudoun County with her father, Dr. Robert Schwartz prior to going to college. (Trial Tr. 204-05.) The Commonwealth presented testimony from Ms. Schwartz friends, Mr. Patrick House and Ms. Kate Inglis, that Ms. Schwartz hated her father, Dr. Schwartz, told her that her father tried to poison her, that she wished he were dead, that he tried to drown her in a pool, that he attempted to molest and kill her, and that she stood to inherit hundred of thousands of dollars upon his death. (Trial Tr. 224, 306-08, 313, 333, 421, 424 430, 498, 553, 714.) In August 2001, Ms. Schwartz began dating Mr. House, and made statements to Mr. House about her desire for him to kill her father. (Trial Tr. 311, 322, 417-18, 427-30.) Ms. Schwartz gave Mr. House a book containing information about poisoning and her collection of journals chronicling the abuse she endured from her father over the years. (Trial Tr. 421, 427.) Mr. House testified that Ms. Schwartz and he had multiple conversations about when he would kill Ms. Schwartz’s father. (Trial Tr. 430-32.)

In September 2001, Ms. Schwartz, Mr. House, Ms. Inglis, and Mr. Michael Pfohl met Mr. Kyle Hulbert at a Renaissance Fair in Maryland. (Trial Tr. 322-23.) Mr. Hulbert was carrying a two-foot sword and dressed in a cat costume. (Trial Tr. 323.) Ms. Schwartz and her friends became friends with Mr. Hulbert. Ms. Schwartz told Mr. Hulbert that her father had abused her and continued to abuse her. (Trial Tr. 286-87.) Ms. Schwartz told Mr. Hulbert that she and her father were planning on going to the Virgin Islands and her father was going to make sure she never came back. (Trial Tr. 288.)

In November 2001 Mr. Hulbert, Ms. Inglis, and Mr. Pfohl visited Ms. Schwartz at college where she further told them how her father abused and poisoned her. (Trial Tr. 332-33.) Ms. Schwartz showed Mr. Hulbert her journals, picking out specific pages for him to read. (Trial Tr. 332-33.) Ms. Schwartz told her friends that she would inherit a substantial amount of money from her father when he died, that she was afraid her father would cut her out of the will, and that she wanted to take a semester off from school, but that her father opposed it. (Trial Tr. 313, 424-27.) At the end of the weekend visit, Ms. Schwartz said to Ms. Inglis, “maybe he [Mr. Hulbert] can help me with my father,” and commented that, if her father died while she was in college, she would take a semester off. (Trial Tr. 350.)

After that visit, Mr. Hulbert and Ms. Schwartz began to exchange instant messages and to speak on the telephone almost daily. (Trial Tr. 710.) Ms. Schwartz arranged for Ms. Inglis to drop off Mr. Hulbert to camp out in the woods surrounding the Schwartz family home during Thanksgiving weekend in 2001. (Trial Tr. 338.) The next day, Mr. Hulbert visited the Schwartz’s residence and introduced himself to Dr. Schwartz and Ms. Schwartz sister Michelle Schwartz. (Trial Tr. 227.) Mr. Hulbert wore a long black trench coat and showed them his sword. (Trial Tr. 226-28.) Soon after that visit, Mr. Hulbert requested that Ms. Schwartz send him $ 60 for gas, a “do-rag”, or head covering, and gloves so that he would not leave any hairs or evidence at the scene. (Trial Tr. 487.) Ms. Schwartz sent Mr. Hulbert the $ 60 check via overnight delivery. (Trial Tr. 340-41, 687-99.) On December 7, 2001, Mr. Hulbert, Ms. Inglis, and Mr. Pfohl used the check to open a bank account for Mr. Hulbert at First Virginia Bank. (Trial Tr. 340-41, 686-87.) On December 8, 2001, Mr. Pfohl and Ms. Inglis gave Mr. Hulbert a ride back to the area near Dr. Schwartz’s home near the same location where they had previously camped. (Trial Tr. 288, 343.) Mr. Hulbert had his sword strapped to his side. (Tr. Tr. 344.) As Mr. Hulbert began to walk in the direction of Dr. Schwartz’s home, he pulled his sword out of its sheath. (Trial Tr. 343.) Mr. Hulbert stabbed Dr. Schwartz over 30 times with the sword. (Trial Tr. 680-81.) When Mr. Hulbert returned to the car he told Mr. Pfohl and Ms. Inglis that he ran him [Dr. Schwartz] through with his sword. (Trial Tr. 345.) On December 9, 2001, Mr. Hulbert called Ms. Schwartz, and told her that he had killed her father. (Trial Tr. 351.) The next day a neighbor found the victim’s body. (Trial Tr. 207-08.) That evening, Loudoun County Investigator Greg Locke traveled to James Madison University to notify Ms. Schwartz and her sister Michelle of their father’s death. (Trial Tr. 470.) Ms. Schwartz provided investigator Locke with information about Mr. Hulbert, Mr. Pfohl, and Ms. Inglis. (Trial Tr. 475-76.) On December 11, 2001, Mr. Hulbert was arrested. (Trial Tr. 300, 302.) At the time of his arrest Mr. Hulbert was carrying a three-page typewritten document that Ms. Schwartz had prepared detailing Dr. Schwartz’s alleged abuse of her. (Trial Tr. 204-05 299, 303, Commonwealth Ex. 35.) Authorities found Mr. Hulbert’s sword at the home of Ms. Inglis and Mr. Pfohl. (Trial Tr. 293-94.) On December 12, 2001, Ms. Schwartz told investigators that she knew Mr. Hulbert was going to kill her father. (Trial Tr. 482-83.) The next day, investigators searched her dorm room and found several journals that were identical to the ones found on Mr. Hulbert at the time of his arrest. (Trial Tr. 504-05, 628, 632-33, 641.) On February 1, 2002, Ms. Schwartz was arrested for the murder of Dr. Schwartz. (Trial Tr. 720.) After her arrest, Ms. Schwartz admitted to fellow inmate Tammie Fitts that her friend Mr. Hulbert had killed her father with a ninja sword. (Trial Tr. 720-22.) Ms. Schwartz also told Ms. Fitts that the plan was for Mr. Hulbert to take the blame for the murder because he was mentally ill. (Trial Tr. 722-23.)

Pre-trial, on June 28, 2002, the Commonwealth filed a motion seeking a ruling on the admissibility of Mr. Hulbert’s written confession. The state habeas court noted that counsel filed a 12-page, “very detailed” and “scholarly” memorandum opposing the Commonwealth’s use of Mr. Hulbert’s written confession. (Tr. Mar. 14, 2008 at 83, 86.) At a hearing on July 10, 2002, defense counsel withdrew their objection to the admission of the statement to allow the admission of the full unredacted confession pursuant to a stipulation with the Commonwealth personally signed by Ms. Schwartz. (Mot. Hr’g Jul. 10, 2002 at 6.) Ms. Schwartz stipulated to the admission of the written confession despite the condition that Mr. Hulbert would not testify and be subject to cross-examination at trial. (Trial Tr. 282-83.) The court noted that the Commonwealth had not satisfied Lilly v. Virginia, which stands for the proposition that a nontestifying accomplice offering statements against the penal interest of the defendant must be allowed to be confronted by the defendant pursuant to the confrontation clause of the 6th Amendment, but there was no objection to the admission of the written confession. (Id.) Mr. Hulbert’s written confession was admitted at trial. (Id.) At a hearing on July 24, 2002, counsel advised the trial court that the defense needed mental health records for Mr. Hulbert to attempt to demonstrate that Mr. Hulbert misunderstood Ms. Schwartz. (Tr. Hr’g Jul. 24, 2002 at 14.) Defense counsel sought to demonstrate Mr. Hulbert’s actions as those of a psychotic individual throughout the trial. (Trial Tr. 193-96, 775-800, 801-43, 842-49.) The court instructed the jury in Instruction 14A that if the jury had a reasonable doubt that Mr. Hulbert had the “mental capacity to understand the nature and consequences of any agreement to commit a crime at the time of the agreement,” the jury must acquit Ms. Schwartz of the conspiracy. (Jury Instruction 14A.) Throughout the closing argument, defense counsel argued extensively about Mr. Hulbert’s mental illness. (Trial Tr. 974, 980-83, 990-92.) On February 19, 2003, Ms. Schwartz was convicted in the Circuit Court of Loudoun County for murder, conspiracy, and two counts of solicitation to commit murder and sentenced to forty-eight years of imprisonment. Ms. Schwartz’s direct appeals were denied. The Virginia Court of Appeals denied her appeal on April 19, 2005. Schwartz v. Johnson, 45 Va. App. 407; 611 S.E.2d 631; 2005 Va. App. LEXIS 156, R. No. 0577-03-4 (Va. Ct. App. Apr. 19, 2005.) The Virginia Supreme Court denied Ms. Schwartz’s appeal on October 6, 2005. Schwartz v. Johnson, R. No. 051072 (Va. Oct. 6, 2005). On October 6, 2006, Ms. Schwartz filed a petition for a writ of habeas corpus in the Circuit Court for Loudoun County challenging her conviction two grounds. Schwartz v. Johnson, R. No. 42813 (Oct. 6, 2005). Specifically, Ms. Schwartz alleged that: (1) she was deprived of her 6th Amendment right to effective assistance of counsel at trial because her defense counsel failed to timely and properly object to the admission into evidence Mr. Hulbert’s written confession and other inculpatory statements; and (2) because her defense counsel failed to request jury instructions on the lesser included offenses of second degree murder and manslaughter and failed to argue alternative defenses based on the facts presented.

On March 14, 2008, a habeas corpus motions hearing was held. At the conclusion of the hearing, the court ruled that the habeas petition should be denied. The order of dismissal was entered April 23, 2008. Ms. Schwartz appealed to the Virginia Supreme Court, which denied the petition for appeal by order dated November 3, 2008. Schwartz v. Johnson, R. No. 081416, 2008 Va. LEXIS 132 (Va. Nov. 3, 2008).

***

III. CONCLUSION

The Court dismisses Ms. Schwartz’s Federal Habeas Petition for Writ of Habeas Corpus for Prisoner in State Custody because the state court’s denial of her claims was not contrary to, or an unreasonable application of, clearly established federal law, and was not based on an unreasonable determination of the facts. Ms. Schwartz has failed to demonstrate that her trial counsel was ineffective under the Strickland standard and the Virginia Circuit Court of Loudoun County did not apply the standard unreasonably nor did it base its decision on an unreasonable determination of the facts. Defense counsel’s trial tactics cannot form a basis for a habeas petition. There is no constitutional violation of Ms. Schwartz’s rights in the Virginia Circuit Court of Loudoun [*23] County to give rise to a writ of petition of habeas corpus in this Court.

For the foregoing reasons, it is hereby

ORDERED that the Petitioner Ms. Clara Jane Schwartz’s Motion for Petition for Writ of Habeas Corpus For Prisoner in State Custody pursuant to 28 U.S.C. § 2254 is DENIED.

The Clerk is directed to forward a copy of this Order to counsel.

Entered this 3rd of August, 2009

/s/
Gerald Bruce Lee
United States District Judge
Alexandria, Virginia

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The following 2009 case is about the microwave ceramics industry but cites to the “ninja” of Hasbro v Child’s Play – see NinjaLaw #7.


John Chabria, et al., Plaintiffs,
-v-
EDO Western Corporation, Defendant.

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Case No. 2:06-CV-00543

Filed – March 30, 2009

Opinion by Magistrate Judge Abel and signed by District Court Judge George C. Smith

OPINION AND ORDER

Plaintiffs John Chabria (“Chabria”), Zenix, Inc. (“Zenix”), and Zenix Ltd. (collectively “Plaintiffs”), have brought this action seeking payment of approximately $ 1,164,000 in unpaid royalties. On February 20, 2007, this Court granted in part and denied in part EDO Western Corporation’s (“EDO”) Motion to Dismiss Plaintiffs’ Amended Complaint (Doc. 25). EDO now moves for summary judgment dismissing all remaining claims (Doc. 47). For the reasons that follow the Court GRANTS Defendant EDO’s Motion for Summary Judgment.

I. FACTUAL BACKGROUND

This litigation was commenced by Plaintiffs in 2006 to recover $ 1,164,000 of unpaid royalties Plaintiffs claim they are owed under the Asset Purchase Agreement (“APA”). On February 20, 2007, this Court granted in part and denied in part Defendant EDO’s Motion to Dismiss Plaintiffs’ Amended Complaint, holding, inter alia, that Plaintiffs had sufficiently alleged EDO’s failure to use its best efforts when performing under the APA, EDO’s breach of the implied covenant of good faith and fair dealing and EDO’s fraudulent inducement of Plaintiffs to enter into the APA (Doc. 25). EDO has now moved for summary judgment, contending that Plaintiffs’ claim for breach of an implied contractual obligation to reasonable efforts must fail because no such obligation should be implied in this case, and even if such an obligation is implied, EDO fulfilled the obligation by making extensive efforts to sell the Zenix line and by acting in good faith at all times in operation of the business. EDO further contends that it is entitled to summary judgment on Plaintiffs’ fraudulent inducement claim for the following reasons: (1) it is barred by the statute of limitations; (2) the alleged misrepresentations all relate to the performance of the APA and cannot give rise to a separate cause of action for fraud; (3) Plaintiffs’ reliance on the alleged misrepresentations were not reasonable; and (4) the alleged misrepresentations were all statements of future intent, which Plaintiffs cannot establish were false when made.

A. Plaintiff Chabria’s Background in the Microwave Ceramics Industry

In or around 1964, Plaintiff Chabria started Xtalonix, a microwave ceramics business, in Columbus, Ohio. He sold the business to Harshaw Chemical in 1966, but stayed on as manager. The business changed hands a number of times, and Chabria eventually repurchased it in the early 1980s. In April 1996, Xtalonix attempted to expand and moved its operations to Maryland, transferring most of the equipment previously located in Columbus. The attempted expansion failed because Xtalonix “racked up debt by spending money faster than it could bring it in . . . .” (Chabria Depo. at 200:3-19). To avoid bankruptcy, Xtalonix was forced to enter into receivership. Trak Ceramics purchased the assets of Xtalonix’s business in 1997 for $ 1,760,000.

and

The facts of Hasbro v. Child’s Play, supra, are analogous in that the defendant in Hasbro also failed to take all of the steps it had originally anticipated when it entered into the agreement at issue. Hasbro obtained an exclusive license to manufacture and sell Child’s Play’s line of ninja action figures. During negotiations, Hasbro represented that it anticipated spending $ 2-5 million on television advertising. 1991 U.S. Dist. LEXIS 10794, 1991 WL 156282 at *2. Notwithstanding Hasbro’s significant efforts, it was unable to sell the action figures at levels it had anticipated and ultimately determined that the number of action figures ordered by its customers did not warrant television advertising. Hasbro therefore abandoned its plan to launch a television advertising campaign. 1991 U.S. Dist. LEXIS 10794, [WL] at *3-4. Child’s Play sued and Hasbro moved for summary judgment. The Hasbro court, in its opinion granting summary judgment, took note of Hasbro’s description of its efforts to exploit the line, and observed that Child’s Play had failed to come forward in response with any evidence that such efforts were insufficient. 1991 U.S. Dist. LEXIS 10794, [WL] at *5. The Hasbro court also noted that if a best efforts duty were to be implied, “it, of course, would not have required Hasbro slavishly to devote its efforts to marketing the Line.” 1991 U.S. Dist. LEXIS 10794, [WL] at *6.

In the instant case, Defendant EDO purchased and operated the Zenix product line for 3.5 years, investing in excess of $ 3 million after purchasing. The evidence shows that the Zenix product line continued to lose money and sales were not as expected. As the Hasbro court noted, implication of a best efforts duty does not require slavish devotion to the marketing of the line, especially in light of the continued and unanticipated monetary losses and low sales. Reasonable efforts does not require every possible effort, to the detriment of one’s own interests or finances. See e.g., Scott-Macon Securities, Inc. v. Zoltek Companies, 2005 U.S. Dist. LEXIS 9034, 2005 WL 1138476, *14 (S.D.N.Y. 2005) (under a reasonable efforts clause “a party is entitled to give ‘reasonable consideration to its own interests’ in determining an appropriate course of action to reach the desired result”), aff’d in relevant part, vacated in part, and reversed in part, 2007 U.S. App. LEXIS 23356, 2007 WL 2914873 (2d Cir. 2007). See also Johns v. Rexam , 2005 WL 1308319, at *10 (M.D. Ga. 2005) (“[T]he implied covenant of good faith does not require a party to a contract to exert the maximum possible effort. Indeed, a party can in good faith exert no effort at all, if it can show that a business decision to exert no effort was reasonable under the circumstances.”). Accordingly, this Court, like the Hasbro court, holds that Defendant EDO’s failure to implement Phase III of its pre-acquisition plan does not constitute evidence creating a material question of fact with respect to the issue of whether Defendant EDO took reasonable efforts to market the Zenix product line.

Therefore

In conclusion, the Court finds that Defendant EDO has presented evidence that they used reasonable efforts to market the Zenix Product. Plaintiffs unsupported allegations and hindsight complaints about EDO’s operation of the Zenix business fail to raise triable issues of fact in response to EDO’s showing. Thus, the undisputed facts establish that the question of whether Defendant EDO used reasonable efforts is appropriately resolved in Defendant EDO’s favor on summary judgment.

And also, as regards “Fraud in the Inducement Claim (Count Four)”:

Accordingly, this Court finds that Plaintiffs’ fraud in the inducement claim is time-barred, and Plaintiffs have failed to meet their burden of proving that the alleged fraud was not discovered and could not have been discovered until within two years of the commencement of the lawsuit. Therefore, the Court grants Defendant EDO’s motion for summary judgment with respect to Plaintiffs’ Count Four Fraud in the Inducement claim.

As an alternative basis for summary judgment on Plaintiffs’ fraud in the inducement claim, Defendant EDO argues that the claim should be dismissed because it is duplicative of Plaintiffs’ breach of contract claim and because Plaintiffs have adduced no evidence from which a jury could reasonably find that EDO fraudulently induced Plaintiffs to enter into the APA. Having determined that Plaintiffs’ claims are barred by the applicable statute of limitations, however, the Court finds it unnecessary to address Defendant’s alternative arguments.

V. CONCLUSION

For all of the foregoing reasons, the Court GRANTS Defendant EDO’s Motion for Summary Judgment (Doc. 47).

The Clerk shall remove Document 47 from the Court’s pending motions list.

The Clerk shall remove this case from the Court’s pending cases list.

IT IS SO ORDERED.

/s/ George C. Smith
GEORGE C. SMITH, JUDGE

This opinion is about discovery in an infringement case involving POWERWHEELS, Dora the Explorer, Spider-Man, Strawberry Shortcake and Ninja – under the ‘Lil Quad and PowerQuad marks.

dora explorer powerquad spider man powerquad

MATTEL, INC.,
and FISHER-PRICE, INC., Plaintiffs,
v.
RAND INTERNATIONAL LEISURE PRODUCTS, LTD., Defendant.

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
06CV807A
2008 U.S. Dist. LEXIS 89439

Decided November 4, 2008, Opinion by: Honorable Hugh B. Scott, United States Magistrate Judge:

This is a trademark and copyright infringement and common law unfair competition action regarding toy ride-on quad vehicles. The plaintiffs claim trade dress infringement and copyright infringement of their “‘LIL QUAD” battery powered ride-on quad vehicles under their POWERWHEELS(R) brand, bearing the Nickelodeon channel characters Dora the Explorer and Diego. Plaintiffs allege that defendant’s “POWER QUAD” bearing the indicia of Marvel Comics’ Spider-Man infringes on their ‘LIL QUAD design and claims that defendant has been selling these infringing ‘LIL QUAD toys since 2006. (See Docket No. 29, Pls. Memo. at 2; see generally Docket No. 1, Compl.)

On October 30, 2007, plaintiffs served their Interrogatories and requests for production (id. at 3; Docket No. 29, Kane Decl. P 2, Exs. A (Interrogatories), B (requests for production)). After over three months (including repeated requests for a response), defendant served plaintiff with its discovery responses (Docket No. 29, Pls. Memo. at 3; Docket No. 29, Kane Decl. PP 3-4, 5, Exs. C, D, E (Interrogatory responses), F (document production responses)). On February 15, 2008, plaintiffs wrote to defendant about the deficiencies in defendant’s production, outlining several non-responsive Interrogatory responses and categories of documents not produced (id.; Docket No. 29, Kane Decl. P 6, Ex. G).

Defendant basically responded with information about the Spider-Man POWER QUAD. Plaintiffs allege that defendant infringes on their LIL QUAD mark with other toys (for example POWER QUAD toys with Strawberry Shortcake, Ninja, and Marvel Heroes trade dress) and defendant thus needs to supplement its production as to these other toys (see Docket No. 29, Kane Decl., Ex. G, at 1-3). Interrogatory Number 8 sought defendant to identify which part of the LIL QUAD design was functional or otherwise not protectable by copyrights, but defendant objected that it was premature since it had not examined plaintiffs’ products (Docket No. 29, Kane Decl., Ex. A, Interrog. No. 8; Docket No. 29, Kane Decl., Ex. G at 3-4). Plaintiffs sought documents regarding defendant’s distribution of the POWER QUAD toys, the costs to produce, documents regarding adverting and marketing of these toys, and communications with retailers about advertising and about this action (Docket No. 29, Kane Decl., Ex. G, at 4-5).

Plaintiff’s motions are granted in part and denied in part. The granted motions are about packaging materials and access to employees responsible for packaging materials.

This is a case of a police raid. Summary judgment is granted on some counts but other counts survive. The police SWAT team is described as ninja-clad and using flash bombs.

FELICIA MARTINEZ, et al., Plaintiffs,
v.
TRACEY McCORD, et al., Defendants.

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
Case No. 1:06-cv-636-WKW [wo]
2008 U.S. Dist. LEXIS 37881

Opinion by: US District Court Judge W. Keith Watkins, decided May 8, 2008:

This case arises out of searches of two mobile homes for methamphetamine, currency, and drug paraphernalia under a Houston County, Alabama search warrant dated January 17, 2006. (Doc. # 84-3.) One of the mobile homes was occupied by Plaintiffs Felicia Martinez (“Martinez”) and her two minor children.

Juvenal is the estranged husband of Martinez.

Methamphetamine, currency, drug paraphernalia, and a handgun were seized at 81 Pitts Drive, and Juvenal Martinez was arrested.

But at the other address:

Martinez and her minor children, ages five and seven, were watching television at 7:00 p.m. when the Daleville Police Tactical Team, also known as the Special Weapons and Tactics (“SWAT”) Team, made an explosive entry into her home, located at 43 Pitts Drive, and secured the premises for the drug task force to conduct the search. (Martinez Decl. P 1; McCord Decl. at 3.) During the initial entry to the home, a “flash-bomb” or other explosive device was thrown through the window, exploding in front of one of the children watching television. (Martinez Decl. P 2.) Officers with masks, assault garb, and drawn weapons entered the mobile home by breaking down a door. (Id. P 4.) Weapons were pointed at Martinez and her minor children, and they were required to lie on the floor face-down and were not permitted to move. (Id. P 5.) Other officers, also unidentified, made a coordinated and simultaneous entry into the other mobile home located nearby [footnotes omitted]

The case here is particularly about the liability for Officers’ McCord [the commander of the Houston County narcotics unit] and Williamson;

At the time of entry into Martinez’s home, McCord was on duty watching the perimeter of the entry at 81 Pitts Drive. (Id.) At that same time, Williamson was waiting in a vehicle down the road. (Williamson Aff. P 9.) After the premises of the mobile homes were secured, Williamson entered the plaintiffs’ residence and searched the kitchen, bedroom, and the laundry room for items pursuant to the warrant, (Williamson Aff. PP 10-12), and McCord entered the residence at 81 Pitts Drive where he spent over two hours searching for evidence and interviewing the individuals found inside. (McCord Decl. at 4-5.) Methamphetamine, currency, drug paraphernalia, and a handgun were seized at 81 Pitts Drive, and Juvenal Martinez was arrested.

McCord then walked the short distance to 43 Pitts Drive. (McCord Decl. at 5.) Although McCord describes his entry of the plaintiffs’ home as merely a “quick walk through” that lasted five to ten minutes, (McCord Decl. at 5), Martinez alleges that McCord and other officers involved in the search “look[ed] in every drawer in every room of her house,” “tore the front off [her] VCR,” and “caused damage to [her] car during the search.” (Martinez Decl. P 7.) Martinez also claims McCord told her that she was going to jail. (Id. P 18.) The actions of McCord and other officers “extremely distressed” Martinez and caused her to worry “that there was something in the explosive device that caused [her children] to sleep.” (Id.)

On July 18, 2006, the plaintiffs filed this action against multiple defendants, some of whom have already been dismissed as parties. In their most recent complaint, the plaintiffs allege eleven counts against McCord and Williamson for unlawful entry, unlawful search and seizure, excessive force under 42 U.S.C. § 1983, conspiracy to violate her civil rights under 42 U.S.C. § 1985, failure to prevent the violation of her civil rights under 42 U.S.C. § 1986, and six state tort claims. [footnotes omitted]

The Court decides,

due to the lack of discovery, Rule 56(f) prevents the court from reaching a judgment on the motion for summary judgment at this time with respect to Williamson for three of the tort claims.

But,

Despite Rule 56(f), there are two tort claims against Williamson that fail as a matter of law, and further discovery on these claims would be pointless. Count Seven alleges the tort of assault and battery. (Third Am. Compl. PP 95-98.) The complaint states that “the defendants touched Ms. Martinez in rudeness, in anger, or in a hostile manner, by touching her person and pointing a firearm at her head.” (Id. P 95.) Despite lumping all defendants into this claim, earlier in the complaint the plaintiffs admit that Williamson was not part of the initial, violent entry of their home during which time the alleged assault occurred and firearms were drawn. (Id. PP 20-21.) The complaint states that “[f]ollowing the assault on Plaintiffs’ (sic) and their home, the Ninja-clad officers left, to be replaced by . . . Williamson and other, presently unknown, officers.” (Id.) It is clear the assault and battery claim is directed at the officers who initially entered the plaintiffs’ home and not the officers who subsequently searched the home. Because the plaintiffs acknowledge Williamson was not one of the initial officers, and they do not allege that he ever touched the plaintiffs, the assault and battery claim against him fails.

Count Nine asserts a claim for intentional infliction of emotional distress (i.e., outrage) against Williamson. However, in Alabama, the tort of outrage is only recognized in three areas: “(1) wrongful conduct within the context of family burials; (2) an insurance agent’s coercing an insured into settling an insurance claim; and (3) egregious sexual harassment.” Stabler v. City of Mobile, 844 So. 2d 555, 560 (Ala. 2002). None of these situations is remotely applicable to the situation at hand, and thus the plaintiffs have not alleged a viable claim of outrage. Therefore, Williamson’s summary judgment motion is due to be granted as to both Count Seven (assault and battery) and Count Nine (outrage).

Those dismisses, other claims survived, including alleged “violations of various constitutional rights under 42 U.S.C. § 1983: unlawful entry in violation of the Fourth and Fourteenth Amendments, unlawful search and seizure in violation of the Fourth and Fourteenth Amendments, and excessive force in violation of the Fourth Amendment.” To be decided another day (presumably by settlement negotiations).

This case relates back to NinjaLaw post “Dungeons and Dragons Ninja Assassin insanity defense” about co-perpetrator Mark Edward Thompson. Mr. Thompson was sentenced to multiple life sentences but Mr. Meyer has been sentenced to death.

JEFFREY KARL MEYER, Petitioner-Appellant,
v.
GERALD J. BRANKER, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 06-26; 506 F.3d 358
September 25, 2007, Argued
November 13, 2007, Decided

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Judge Wilkinson wrote the opinion, in which Judge Niemeyer and Judge Shedd joined:

Nearly twenty years ago, Jeffrey Karl Meyer pled guilty to two counts of first degree murder for fatally stabbing an elderly couple during the commission of a robbery. Since then, three separate capital juries have sentenced him to death, and the North Carolina Supreme Court has twice vacated his sentence on direct appeal due to irregularities in the sentencing proceedings. Throughout this time, Meyer’s guilt has never been in doubt, and he has never argued that he did not commit the crimes in question.

Meyer now challenges his third capital sentence, raising claims relating to the effectiveness of his counsel, his awareness of the consequences of his plea, and the sentencing court’s refusal to admit potentially mitigating evidence. These claims have been heard and rejected by the same state courts that twice vacated Meyer’s earlier death sentences. We have reviewed Meyer’s claims with care, and we affirm the district court’s dismissal of Meyer’s federal habeas petition.

Summarizing the evidence:

On December 1, 1986, Jeffrey Karl Meyer and Mark Thompson broke into a home owned by Paul and Janie Kutz. At the time, Meyer and Thompson were heavily armed and dressed in the clothing of “ninja” warriors: “oriental assassins from feudal times, highly trained in martial arts and stealth.” State v. Meyer, 330 N.C. 738, 741, 412 S.E.2d 339, 341 (1992). Meyer and Thompson, soldiers stationed at Fort Bragg, North Carolina, had been planning to rob the elderly Kutzs for some time.

Upon entering the house, Meyer and Thompson encountered the sixty-eight year-old Mr. Kutz. Meyer initially shot Mr. Kutz with a blow gun, a martial arts weapon that launches sharp darts from a hollow tube. After Mr. Kutz continued to advance, Meyer stabbed him with a butterfly knife. Meyer and Thompson proceeded to stab Mr. Kutz above the left eye, above the right collar bone, across the neck, twice in the upper left chest, in the rib cage, above the left elbow, four times in the back of his chest, and to the left and right of his spine. In addition, defensive wounds were found on Mr. Kutz’s left hand, demonstrating an attempt to fend off an attacker. Testimony at trial indicates that Mr. Kutz may have remained alive and conscious for between thirty seconds and five minutes after the stab wounds were inflicted.

Meyer and Thompson then proceeded to stab and kill the sixty-two year-old Mrs. Kutz with butterfly knives. Mrs. Kutz, who was found in a bedroom down the hallway from Mr. Kutz, was stabbed approximately twenty-five times. She also displayed defensive wounds on her hands. Due to the fact the autopsy found Mrs. Kutz’s lungs markedly expanded with trapped air and blood, it is likely that Mrs. Kutz remained alive after receiving the stab wounds.

Overwhelming evidence linked Meyer and Thompson to the crimes. First, in the early morning hours after the killing, a military police officer, Robert Provalenko, intercepted Meyer and Thompson, dressed in “ninja” pants and boots, as they drove through a restricted area of Fort Bragg. In their car, Officer Provalenko found jewelry, a TV, and credit cards that were later found to be stolen from the Kutzs’ house, as well as a significant arsenal of weaponry, including butterfly knives, nunchucks, and a blowgun.

Second, forensic evidence placed Meyer and Thompson at the scene of the crime. A police investigation found footprints consistent with ninja boots in the dirt around the house, as well as on a dining room chair. Human blood consistent with the type of both victims was present on the butterfly knives recovered by Provalenko, and fibers found on one or both of the knives were consistent with the upholstery of the chair in which Mr. Kutz’s body was found, a blue blanket found with Mrs. Kutz’s body, and the pink nightgown worn by Mrs. Kutz at the time of her death. Fibers from the blanket and sheets in the Kutzs’ bedroom were also found on the “ninja” clothing worn by both Meyer and Thompson on the night of the murders.

Third, Dale Wayne Wyatt, a soldier stationed at Fort Bragg waiting to appear in court on a worthless-check charge, testified that he met Meyer on December 3, 1986 in a holding facility during his detention. According to Wyatt, Meyer confessed to shooting Mr. Kutz with a blowgun and then stabbing him. Meyer also told Wyatt that he had been dressed as a “ninja” at the time of the crime.

On February 2, 1987, Meyer was indicted on one count of burglary, two counts of armed robbery, and two counts of first degree murder. On May 12, 1988, Meyer pled guilty to the robbery and burglary charges. Four days later, Meyer pled guilty to two counts of first degree murder. The trial judge accepted the murder pleas and, in open court, confirmed that Meyer had discussed the charges with counsel, understood what they meant, and knew he would be sentenced to either life imprisonment or death on each count. The pleas were accepted and recorded the next day after the State’s presentation of their factual basis.

AND

At his 1988 sentencing hearing, Meyer introduced testimonial evidence from two psychiatrists. First, Dr. Selwyn Rose testified that Meyer was obsessed with Dungeons and Dragons, a role-playing game set in medieval times, and that this obsession caused “defendant to retreat into a fantasy world of Ninja warriors.” Meyer, 412 S.E.2d at 342. Second, Dr. Thomas E. Radecki testified that Meyer “was so out of touch with reality . . . I don’t think that he really appreciated that he was really killing people. I think that he was living out a game, living out a fantasy . . . . I really don’t think he appreciated really seriously what he was doing. He’s a very sick man . . . .” Id.

This appeals court affirms the district court denial of habeas corpus peitition. Writ of certiorari was denied, and petition for rehearing also denied. Meyer awaits execution in a North Carolina federal prison.

This is a 2007 habeas petition by a convicted spousal abuser, it is denied. A weird quirk of this story is the presence of an unidentified person in ninja clothing.

ROBERT EDWARD PATTERSON, Petitioner,
v.
GENE M. JOHNSON, DIRECTOR OF THE VIRGINIA DEPARTMENT OF CORRECTIONS, Respondent.

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA, ROANOKE DIVISION
Civil Action No. 7:07CV00344
2007 U.S. Dist. LEXIS 65873

Decided September 6, 2007, opinion by District Judge Jackson L. Kiser dismissed the habeas petition:

Petitioner Robert Edward Patterson (“Patterson”), a Virginia Department of Corrections inmate proceeding pro se, brings this action for writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Respondent filed a Motion to Dismiss, pursuant to Rule 5 of the Rules Governing Section 2254 Cases, to which Patterson filed a timely response, making the matter ripe for disposition. Upon careful review of the extensive state court records and the pleadings and exhibits submitted by the parties, I conclude that Respondent’s Motion to Dismiss must be granted.

Tina Patterson (“Tina”) and Patterson married in June of 2000.

On June 5, 2002, Tina obtained a protective order prohibiting Patterson from having any contact with her, including that he not call, write, follow, stalk, or harass her. The order was to remain in effect for two years.

On July 15, 2002, at about 11:00 p.m., Tina returned home after visiting and drinking a beer with a friend. She later heard suspicious noises outside her home. Tina called her friends June Gerholdt (“Gerholdt”) and Gene Barnett (“Barnett”) to report what she had heard. When Tina went outside to investigate the noises, she saw a man in a black “Ninja-looking suit.” Tina turned around, and was struck in the face by Patterson with both his fist and an Igloo cooler. The person in the “Ninja” clothing ran away and disappeared. Patterson continued to strike Tina in the head and mouth, causing her injuries.

Patterson was ultimately convicted in the Circuit Court of Amherst County upon convictions of spousal rape, abduction, and two counts of violating a protective order (Circuit Court Case Nos. CR02011612-01; CR02011612-02; CR02011541 and CR02011590-00). On December 14, 2001, he was sentenced to a total term of thirty years and twenty-four months, with fifteen years suspended.

The facts do not make clear who that person in Ninja clothing was. The defendant claims he has been framed by his (ex)wife, that the sex was consensual and that she’s trying to punish him for claims he brought against her. Other elements of the wife’s story were corroborated by physical evidence at the scene, the jury obviously believed her, and this district court finds no reason to overturn the conviction.

Appeal denied February 2008, writ of cert denied Oct 2008.

This pro se defendant was convicted of robberies and attempted carjacking and was described by witness testimony as wearing a ninja-suit and wielding an AK-47. Here the Court in 2007 denies motion for new trial.

UNITED STATES OF AMERICA
vs.
ANDRE HENRY

CRIMINAL ACTION NO. 06-33-01
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Opinion by Judge Jan E. DuBois, decided August 24, 2007:

On February 22, 2007, a jury convicted defendant Andre Henry of crimes related to eight robberies of fast food restaurants; the straw purchase, possession, and use of assault weapons and other firearms; two armed bank robberies; conspiracy to commit a third armed bank robbery; an attempted carjacking that involved shots fired at a police officer; and solicitation to commit murder of a federal grand jury witness. Currently before the Court is defendant Andre Henry’s pro se Motion for Judgment of Acquittal and Motion for New Trial Pursuant to Fed. Rules of Crim. Proc. 29 and 33 (Document No. 473, filed April 12, 2007). For the reasons that follow, defendant’s Motion for Judgment of Acquittal and Motion for New Trial are denied.

Included in the facts:

one of the victim of the attempted carjacking, Janine McCullers, testified as follows during the trial:

[A]s I’m ready to pull out of the parking space, an individual is in front of my car in all black, like a Ninja-type suit, with a gun pointed at me, standing in front of the car with a gun aimed like this — in front of my car saying something

The court denies defendant’s motion for acquittal, finding sufficient mens rea to meet the elements of the crimes of carjacking. Additionally defendant’s motion for a new trial is also denied.

Recall other instances of “ninja” as a type of clothing (worn by both criminals and law enforcement personnel) .

Another case of police officers in ninja garb. Here in Bell v. City of Topeka, the police execute a search warrant and are accused of unreasonable force. The Court sides with the city, granting summary judgment.

DAVID L. BELL, Plaintiff,
v.
CITY OF TOPEKA, KANSAS, et al., Defendants.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
Case No. 06-4026-JAR
496 F. Supp. 2d 1182

Decided July 9, 2007 by District Court Judge Julie A. Robinson

Plaintiff claims that after he was pulled from the car, officers slapped hand cuffs on him and slammed him face-first into the car, causing plaintiff to suffer a dental injury. Afterwards, plaintiff was beaten on his legs and lower back, and then he fell to the ground on his knees. Officers then picked plaintiff up, carried him a couple of steps, and then dropped him back down, forcing him to lie face down in a puddle of water. Lieutenant Pase saw the officers remove plaintiff from the car, but he did not see plaintiff being taken to the ground because he could only glance over occasionally while tending to his duties. Lieutenant Pase also saw the officers bring plaintiff toward the street where he lay face down on the ground.

Sergeant Erwin stayed with plaintiff while the officers proceeded with the execution of the search warrant. Plaintiff contends that he asked Sergeant Erwin if he could move so that he would not have to be face down in the water, and Sergeant Erwin’s response was, “Shut the fuck up right now before I put my foot on the back of your mother fucking neck and hold you face down in that water until you drown.” After that, plaintiff claims that Sergeant Erwin made comments such as “I ought to shoot you.” After the scene was secured and officer safety was under control, Lieutenant Pase told Sergeant Erwin to pick plaintiff up off of the ground. At that point, officers wanted to search plaintiff, who told them, “the only thing lower than a mother fucking crackhead was the mother fucking Topeka Police Department.” He also told an officer, “Kiss my ass and good luck.” The officers then told plaintiff that they needed to search his car, and they warned him if they cut themselves on the broken glass from his crack pipe that he would be in trouble. Plaintiff laughed and told the officers, “You stupid mother fuckers, you broke the glass–broke the windows of my car. There’s–the car is full of glass.” Throughout the events that evening and in the early morning, plaintiff describes the officers as being dressed in black, “ninja-like clothing” and wearing masks. Plaintiff was then put into a car for transport to the jail. Plaintiff asked the officer who was transporting him to loosen the handcuffs, which the officer did. Plaintiff was at the jail for approximately twenty-six minutes before he was released at about 1:26 a.m.

The Court found the Plaintiff failed to demonstrate that the police department had negligent training or negligent supervision or that there was unreasonable use of (or excessive) force. Therefore the city’s motion for summary judgment was granted.

This 2007 case is an action pursuant to 42 U.S.C.S. § 1983 by a Muslim prisoner in Georgia claiming RLUIPA related First Amendment violations while in prison. Specicially, the plaintiff sought 52 books, some with the word “Ninja” in the title. He also had other issues like wearing his Kufi and having a digital version of the Qur’an. This plaintiff has become something of a jailhouse lawyer filing many actions, but also he is still involved in litigation about related incidents from 1995. The word ninja is mentioned only in this decision involving alleged prison guard violations of first amendment and the plaintiff was released from prison (serving a 10 year sentence) before this 2007 case was decided. But in a strange twist, he is back in prison now facing murder charges related to the original crime. The trial is happening like now (?-see update below-) see links below, but first the 2007 RLUIPA ninja case:

WASEEM DAKER, Plaintiff,
v.
JOE FERRERO, et al., Defendants.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION
CIVIL ACTION NO. 1:03-CV-02481-RWS
475 F. Supp. 2d 1325

Decided, February 26, 2007 by Judge Richard Story:

Plaintiff, proceeding pro se, initiated this civil action in August 2003 against Defendant Joe Philip Ferrero, Acting Commissioner of the Georgia Department of Corrections (“GDC”), and numerous prison officials. In his Fourth Amended Complaint, Plaintiff asserts nineteen claims pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1 et seq., challenging aspects of his confinement in various GDC prison facilities. Specifically, Plaintiff challenges: (i) a requirement that he “stand at attention” in the presence of prison officials; (ii) a restriction on his wearing of a Kufi, a traditional article of Muslim headdress; (iii) a denial of his request to possess a digital device containing the text of the Qur’an; (iv) content-based restrictions on the sending and receiving of prisoner mailings and publications; and (v) the sufficiency of the procedures afforded to inmates and senders of mail when prisoners are denied certain mailings and publications. 1 On October 25, 2005, Plaintiff was released from prison, but he continues to pursue this litigation.

explaining:

In his third and eighth allegations, Plaintiff claims that Defendants denied him approximately 52 books on the basis of content in violation of the First Amendment. These books include: (1) The Catalog of Catalogs VI; (2) Mathematical Cryptology; (3) Applied Cryptography; (4) Using Microsoft Visual InterDev; (5) C++ How to Program; (6) Dubugging C++; (7) Night Movements; (8) Inside Kung-Fu; (9) Complete Karate; (10) Far Beyond Defensive Tactics; (11) SAS Training Manual; (12) The Encyclopedia of Survival Techniques; (13) The SAS Guide to Tracking; (14) Ninja: History and Tradition; (15) Ninja: Power of the Mind; (16) Ninja Mind Control; (16) Bin Laden: The Man Who Declared War on America; (17) Revolution by the Book; Different Loving; (18) How to Survive the IRS; (19) Witchcraft: A Secret History; (20) Practical Electronics; (21) Lip Reading Made Easy; (22) HansWehr Arabic English Dictionary; (23) Que Tal?; (24) C++ from the Ground Up; (25) Visual Basic from the Ground Up; (26) Ditch Medicine; (27) Do it Yourself Medicine; (28) The Mammoth Book of Love and Sensuality; (29) The Joy of Sex; (30) Building Bots; (31) Gonzo Gizmos; (32) Booby Trap Identification and Response Guide; (33) Death Investigator’s Handbook and DEA Investigator’s Manual; (34) Georgia Criminal Trial Practice; (35) Georgia Criminal Trial Practice–Forms; (36) Georgia Handbook on Criminal Evidence; (37) Green’s Georgia Law on Evidence; (38) Criminal Investigation: Basic Perspectives; (39) Law Enforcement Technology 260: Criminal Investigation; (40) U.S. Army Special Forces Medical Handbook; (41) Military Book Club Emergency Medical Procedures; (42) The Tao of Sexuality; (43) Ragnar’s Guide to the Underground Economy; (44) Investing Offshore; (45) Electronic Circuits and Secret of an Old-Fashioned Spy; (46) The Black Science: Ancient and Modern Techniques of Ninja Mind Control; (47) The Kama Sutra; (48) Samurai: The World of the Warrior; (49) Leadership Lessons of the Navy Seals; (50) Experiments in Electronic Devices and Circuits; (51) three Fantagraphics books; and (52) Guide to Getting it On. (See Pl.’s Statement of Material Facts [hereinafter “Pl.’s SMF”] PP 15-59.)

Defendants do not dispute that they denied Plaintiff these books. Rather, Defendants argue that Plaintiff has failed to demonstrate that he followed the proper procedures in requesting the books, and that, in any event, the books were properly denied on procedural grounds or after a review by a publications review panel. Defendants claim they are therefore entitled to qualified immunity, notwithstanding the reasons for the denial of each individual publication.

Go to this Headnote in the case.Regulations affecting the sending of publications to a prisoner are analyzed under the Turner reasonableness standard. Thornburgh, 490 U.S. at 413 (citing Turner, 482 U.S. at 89). Such regulations are valid if they are reasonably related to legitimate penological interests.

also,

As another example, Plaintiff claims that on October 26, 2004, two books, The Ninja and Endurance Techniques, were denied to Plaintiff. He claims that he was initially denied an opportunity to appeal, but after filing a grievance relating to that denial, Plaintiff was ostensibly given an opportunity to appeal. Nevertheless, Plaintiff alleges that Defendant Hilton Hall “refused to impound the publication for review by the [Publications Review Committee].” After Plaintiff filed another grievance relating to the denial of an opportunity to appeal, Defendant Steve Benton rejected the appeal, stating “only if the facility cannot determine admissibility is the publication to be impounded for further review by the PRC.” (See Pl.’s SMF P 46.) Once again, Defendants “dispute these allegations as written,” without providing any argument or citation to evidence in the record. (See Defs.’ SMF P 46.)

This case decision is on motion for Summary Judgment. The Court granted the motion in part and denied in part. For example the Defendant prison guards were granted summary judgment as related to the wearing of the Kufi. But as to the books, the allegation lived on. But ultimately in subsequent appeal, on a motion to vacate, in the same Court, Judge Story wrote on January 8, 2008, Daker v Chatman, 2008 U.S. Dist. LEXIS 1192 :

Plaintiff has demonstrated, that reasonable prison officials could disagree over whether certain of these titles pose legitimate security concerns in a prison environment. But that disagreement entitles Defendants to qualified immunity. Unless no reasonable prison official could conclude that any of these publications present a security risk, then the “considerable deference” owed to officials engaged in the “‘inordinately difficult undertaking’ that is modern prison administration” and the robust legal protection afforded to governmental agents, who must be allowed to “carry out their discretionary duties without the fear of personal liability or harassing litigation,” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002), entitles the denying official to qualified immunity. See Duamutef v. Hollins, 297 F.3d 108, 112 (2d Cir. 2002) (applying “heightened deference” to prison official’s decision to censor publications). For these reasons and for the reasons stated in its Order of August 24, 2007, the Court remains convinced that the denial of these publications was consistent with the protections afforded to prisoners under the First Amendment, see Turner v. Safley, 482 U.S. 78, 85, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), and thus, Plaintiff suffered no constitutional injury. Insofar as Plaintiff moves to vacate this Court’s Order of August 24, 2007, that Motion is DENIED.

Amazingly, this is nowhere near the end of the story. Waseem Daker did get out of prison in 2005 but was re-arrested in 2010 on charges related to the same incidents from 1995. His original imprisonment was related to stalking and assault, and 2010 they arrested him for murder. An order May 9, 2011 by Magistrate Judge E. Clayton Scofield III, in Daker v. Warren, 2011 U.S. Dist. LEXIS 116451, explains,

At the combined probable cause/bond hearing on February 18, [2010] at which Daker was represented by retained counsel, attorney Brian Steel, the trial court heard testimony from Daker’s brother revealing that Daker (who was born in 1977) has family ties to Syria, where his parents were born and raised. The court also heard that Daker has lived in the Atlanta area since 1990; that after his release from state prison in 2005, following ten years of incarceration, until his arrest in January 2010, he worked in the family business as the general manager of a furniture store and lived with his family, who currently reside in a half-million dollar home; and that he has an expired Canadian passport, although it is unclear whether he has dual citizenship in Canada and the United States. (Probable Cause/Bond Hr’g Tr. at 31-41, ECF No. 4-1 at 39-49.) The state argued that Daker’s family has “large assets” and “connections in Syria, where the family’s from” and where Daker has traveled, and that Daker had “connections to Canada” at some point as well: “He has the ability to flee, he has the connections to flee, he’s a risk of flight.” (Id., Hr’g Tr. at 54-55, ECF No. 4-1 at 62-63.) The trial court ruled as follows: “Well, murder is different . . . [addressing Daker’s attorney], in the sense that somebody’s facing a life sentence, so I think that’s a strong motivation for someone to flee, or to think about fleeing. So, today I’m going to deny bond.” (Id., Hr’g Tr. at 55.) Daker filed a state habeas petition, which was denied on June 24, 2010. The Georgia Supreme Court, on November 3, 2010, denied Daker’s application for a certificate of probable cause to appeal that denial. (Pet. ¶ 10.)

And recently, June 25, 2012, Judge Story denied a variety of Daker’s motions in Daker v. Warren, 2012 U.S. Dist. LEXIS 87517, including a motion to reconsider bail, and a motion to recuse both Judge Story and Magistrate Judge Scofield, amongst other pretrial motions. The case remained on the docket the next day, but I can’t tell if it went to trial. It seems Daker first parted with his retained attorney nd was then acting pro se, filing all sorts of motions and then the Court took the unusual step of appointed backup counsel, and Daker seemed to allow that counsel to takeover (?) All this back-and-forth may be an attempted tactic. See article in Marietta Daily Journal “Trial of man accused in gruesome 1995 murder delayed 90 days” and in Atlanta Journal New, Cobb County: “Defendant representing himself in 1995 murder case” – But nothing more recent. Does that mean he hasn’t gone to trial yet or did he take an unreported plea?

waseem daker

— UPDATE —
Murder trial of Waseem Daker to begin in September“, Examiner.com, August 25, by Leigh Egan:

jury selection will begin on September 10th. The trial is set to take place at the Cobb County Superior Court.

Daker, 34, was charged in 2010 with the 1995 murder of Karmen Smith. Smith, a Delta flight attendant, was murdered in her Cobb County home. Only a year after the murder took place, Daker was accused of stalking Smith’s roommate. Subsequently, he was convicted and spent ten years in state prison. Although he remained as an person of interest in Smith’s murder, it wasn’t until 2010 that he was charged, based upon DNA evidence that was found at the scene.

Since then, Daker has attempted represent himself after firing several public and private defenders. Recently, however, he agreed to be represented by the law team of Michael and Jason Treadaway.

— UPDATE 2 — 9/9/2012

Murder trial to begin in Cobb woman’s 1995 strangling” by By Andria Simmons in The Atlanta Journal-Constitution

— UPDATE 3 — 9/14/2012
Defendant represents himself in flight attendant murder case” By Andria Simmons in The Atlanta Journal-Constitution
Stalking victim testifies in Cobb murder trial” By Andria Simmons in The Atlanta Journal-Constitution

The story is also being covered by Kim Issa in The Marietta Daily Journal:
“Opening arguments to begin today in E. Cobb murder trial” by Kim Isaza
Murder suspect was urged to get professional help” by Kim Isaza

and Andrew Spencer at WSBradio
Man charged in 1995 Cobb Co. murder representing himself” by Andrew Spencer as WSBradio
Defendant wants new lawyers in 1995 Cobb murder trial” by Andrew Spencer as WSBradio

— UPDATE 4 – 10/1/2012
“Daker sentenced to life plus 47 years” by Andria Simmons for AJC including a quote from the surviving victim, the son of the murdered woman, himself also assaulted and now currently 22 year’s old.

This 60th NinjaLaw case is the story of Robert Clifton Dameron.

robert clifton dameron

UNITED STATES OF AMERICA,
v.
ROBERT CLIFTON DAMERON, Defendant.

CASE NO. 5:06CR00047
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA, HARRISONBURG DIVISION

2007 U.S. Dist. LEXIS 6610; January 30, 2007, Decided

On January 24, 2007, Dameron plead guilty to “unlawfully, knowingly and intentionally distributing or possessing with intent to distribute, or aiding and abetting in the distribution or possession with intent to distribute, 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, a Schedule II narcotic controlled substance, in violation of Title 21, United States Code, Section 841(a)(1) and (b)(1)(A) and Title 18, United States Code, Section 2.

The recommendation of Magistrate Judge B. Waugh Crigler, January 30, 2007, was that “the court accept the defendant’s plea of guilty to Count One and adjudge him guilty of that offense”. And “sentencing hearing hereby [was] scheduled for May 24, 2007 at 9:30 a.m. before the presiding District Judge in Harrisonburg.”

The defendant was informed that the maximum statutory penalty provided by law for the offense with which he is charged, in the case of Count One, is life imprisonment, a fine of $ 4,000,000, and a period of supervised release. The defendant was further informed that Count One has a mandatory minimum sentence of ten years imprisonment.

The sentence was 120 months (10 years, see this later habeas petition) but his obituary states “Robert Clifton Dameron, 37, of Afton, passed away on Saturday, January 28, 2012.” The obit doesn’t say how he died. It does note “He was preceded in death by his stepfather, Jerry Dameron.” Jerry’s obit from Spetember 15, 2011 states he died, age 61, at a hospital but again no cause of death is stated. This death is particularly relevant because the defendant’s ninja motorcycle was purchased by and registered to the stepfather.

THE GOVERNMENT’S EVIDENCE

The defendant waived his right to have the government’s Factual Summary read in open court and had no objection to the Summary. The Factual Summary having been filed in open court, the evidence presented therein regarding the offense charged is as follows:

On October 26, 2005, a Waynesboro police officer observed a black Ninja motorcycle speeding (55 mph in 35 mph zone). The officer pursued motorcycle with emergency lights flashing. The motorcycle accelerated and attempted to flee. A pursuit ensued. The motorcycle became boxed in by another car at an intersection. The officer ordered the driver (Dameron) off the bike at gun point. The defendant’s drivers licence [sic] was suspended and he was an habitual offender. The defendant said the motorcycle was registered to his father. The police officer notified the defendant that he was under arrest for eluding, reckless driving and being a habitual offender. As the officer examined the motorcycle, he noticed a pouch attached to the gas tank. Visible through a clear plastic window was registration and insurance information. The officer unzipped the pouch to get the information, and saw a drug smoking device containing residue. A further search of pouch revealed 526.64 grams of a substance containing methamphetamine, digital scales, packing material, 29.27 grams of cocaine and 28.8 grams of marijuana. The Officer also recovered $ 2,561.00 on the defendant’s person. The defendant’s stepfather testified before the grand jury that he purchased the motorcycle for the defendant, but kept the motorcycle registered in his (the step-father’s) name, at the defendant’s request. Stephanie Dumont, who lived with the defendant, testified before the Grand Jury that no one, other than the defendant, drove the motorcycle. The defendant’s brother, Scotty Dameron, testified before the Grand Jury that the defendant was the only person to use the motorcycle, except on one occasion. Two additional witnesses testified before the Grand Jury that they had purchased methamphetamine from the defendant in the past year. The methamphetamine was sent to the DEA lab and tested positive for methamphetamine, weighing 526.64 grams.

The defendant was subsequently arrested on May 21, 2006. A Nelson County Sheriff observed the defendant operating his motorcycle (the same motorcycle as on October 26, 2005) in a reckless manner, with the front tire coming off the pavement. The Officer pursued the defendant with his lights flashing. The defendant disappeared into a side street. Dispatch advised the officer that a citizen (a retired State trooper) had called in and said the motorcycle and driver were hiding behind a house near the street. The officer went to the house and found the defendant standing next to the motorcycle. The officer patted the defendant down and asked if there was anything in his pants that would stick or cut him. The defendant said no. The officer then located a hypodermic needle in the defendant’s pocket. Officers also recovered a black pouch strapped to the motorcycle. Inside, the pouch, officers recovered several hypodermic needles and a few grams of a detectable amount of methamphetamine. On the way to jail, the defendant slipped out of his handcuffs, and tried to get out of the patrol car. He was unsuccessful.

FINDINGS OF FACT

Based on the evidence presented at the plea hearing, the undersigned now submits the following formal findings of fact, conclusions and recommendations:

1. The defendant is fully competent and capable of entering an informed plea;

2. The defendant is aware of the nature of the charges and the consequences of his plea;

3. The defendant knowingly and voluntarily entered a plea of guilty to Count One of the Indictment; and

4. The evidence presents an independent basis in fact containing each of the essential elements of the offense to which the defendant is pleading guilty.

He was then sentenced to 120 months and habeas petition denied February 18, 2010. And now he’s dead; just five years after the guilty plea and 10 year sentence. I really wonder how he died, and was he still in federal prison?