666 F.Supp. 91 (1987)
Harlan HAGAN, et al.
v.
Joseph KRAMER, et al.
Civ. A. No. 86-1094.
United States District Court, W.D. Louisiana, Alexandria Division.
June 15, 1987.
*92 Chris J. Roy, Alexandria, La., for Harlan Hagan, et al.
John R. Halliburton, Asst. U.S. Atty., Shreveport, La., for Joseph Kramer, et al.

RULING
LITTLE, District Judge.

RULING
On 9 November 1984 Harlan Hagan was hunting on the Fort Polk Reservation in Leesville, Louisiana when he was accidently shot by Joseph Kramer, a member of the United States Army stationed at Fort Polk. Hagan subsequently filed this suit against the United States under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. for injuries received in the accident. A motion for summary judgment under Fed. R.Civ.P. 56 has been filed by the United States, which the plaintiff has not answered although an extension of time for that purpose was granted plaintiff in early May.
In actions brought under the Federal Tort Claims Act "the United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. The applicable law is determined by the situs of the occurrence. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). An owner of property used for recreational purposes is absolved from liability for injuries sustained on his property in certain specific situations. The panoply is found in La. Rev. Stat. Ann. §§ 9:2791 and 2795.
An owner, lessee, or occupant of premises owes no duty of care to keep such premises safe for entry or use by others for hunting, fishing, camping, hiking, sightseeing or boating or to give warning of any hazardous conditions, use of, structure or activities on such premises to persons entering for such purposes. If such an owner, lessee or occupant give permission to another to enter the premises for such recreational purposes he does not thereby extend any assurance that the premises are safe for such purposes or constitute the person to whom permission is granted one to whom a duty of care is owed, or assume responsibility for or incur liability for any injury to persons or property caused by any act of person to whom permission is granted.
La. Rev. Stat. Ann. § 9:2791(A).
(1) Except for willful or malicious failure to warn against a dangerous condition, use, structure, or activity, an owner of land, except an owner of commercial recreational developments or facilities, who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby:
(a) Extend any assurance that the premises are safe for any purposes.
(b) Constitute such person the legal status of an invitee or licensee to whom a duty of care is owed.
(2) The provisions of this Subsection shall apply to owners of commercial recreational developments or facilities for injury to persons or property arising out of the commercial recreational activity *93 permitted at the recreational development or facility that occurs on land which does not comprise the commercial recreational development or facility and over which the owner has no control when the recreational activity commences, occurs, or terminates on the commercial recreational development or facility.
C. Unless otherwise agreed in writing, the provisions of Subsection B shall be deemed applicable to the duties and liability of an owner of land leased for recreational purposes to the federal government or any state or political subdivision thereof or private persons.
D. Nothing in this Section shall be construed to relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this Section to exercise care in his use of such land and in his activities thereon, or from the legal consequences of failure to employ such care.
E. The limitation of liability provided in this Section shall apply to any lands or waterbottoms owned, leased, or managed by the Department of Wildlife and Fisheries, regardless of the purposes for which the land or waterbottoms are used, and whether they are used for recreational or nonrecreational purposes.
La.Rev.Stat.Ann. § 9:2795(B).
The Louisiana Supreme Court recognized that the avowed purpose of the legislature in enacting the quoted material was "to encourage owners of land to make their land and water areas available to the public for recreational purposes by limiting their liability." Keelen v. State Department of Culture, Recreation and Tourism, 463 So.2d 1287, 1290 (La. 1985). To determine whether a particular entity is entitled to claim immunity, a two-prong inquiry has been distilled from Keelen. First, the property must be rural or semi-rural. This factor looks to the size, naturalness and remoteness of the property. Second, the injury-causing element must be one encountered in the true outdoors. Id. at 1290; Harlan v. Frazier, 635 F.Supp. 718, 721-722 (W.D. La. 1986).
The Fort Polk Military Reservation is located in an unimproved, wooded area. It is open to the public for hunting through an agreement with the Louisiana Department of Wildlife and Fisheries, provided that the hunter secures a Louisiana hunting license and properly utilizes the check-in and check-out procedures. No fee is charged. No evidence submitted in connection with this motion suggests that the Military Reservation is anything but an undeveloped woods. Likewise, being shot by a fellow deer hunter is an injury of the type that is incident to the pursuit of recreation in the true outdoors. The United States is therefore entitled to the immunity provided by La.Rev.Stat.Ann. § 9:2791 and § 2795. See also LaCroix v. State Through Department of Transportation, 477 So.2d 1246 (La.App.3d Cir.1985); Holder v. Louisiana Parks Service, Inc., 493 So.2d 275 (La.App.3d Cir.1986).
The standard for a summary judgment motion is governed by the Supreme Court's opinion in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986):
In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.
The plaintiff has failed to adduce any evidence which would raise an issue of material fact regarding the immune status of the Fort Polk Military Reservation. "Absent evidence, direct, circumstantial, or inferential, that would create a genuine issue of fact ... the motion should be granted." Fontenot v. Upjohn Co., 780 F.2d 1190, 1196 (5th Cir.1986). The summary judgment motion of the United States is *94 GRANTED and the plaintiff's claims DISMISSED.


Opinion issued December 31, 2013

                                     In The

                             Court of Appeals
                                    For The

                          First District of Texas
                           ————————————
                             NO. 01-12-00380-CR
                           ———————————
                      KRISTEN ALEIA SIMPSON, Appellant
                                       V.
                        THE STATE OF TEXAS, Appellee

           On Appeal from the County Criminal Court at Law No. 2
                            Harris County, Texas
                        Trial Court Case No. 1753959

                          DISSENTING OPINION

      A Texas criminal courtroom is to be a sanctuary from interest groups and

agendas. The evidence is what it is and the crimes and offenses are as recited in

the criminal codes.
      The influence of those who may have lobbied for various provisions in those

codes has no place in the courtroom. It falls to the tribunal to assure a fair and

impartial trial of the citizen accused.

      To display behind the trial bench a plaque awarded by one of the most well-

established interest groups in the nation not only fails to keep the interest group at

bay, but also invites others to take notice that, in the judge’s capacity as a public

official, his actions merited the group’s commendation. When that interest group

is Mothers Against Drunk Driving—a group dedicated to the proposition that the

offense for which the accused citizen is being tried in that very courtroom is a very

bad and potentially horrific thing—the sanctuary has been twice defiled: not only

by the agenda of the interest group, but also by the hubris of the judge charged

with the responsibility of assuring a fair and impartial DWI trial.

      That a judge so commended would take pride in such an award is

understandable. But the criminal court judges of Harris County, Texas all have the

benefit of individual private chambers where commendations, books, plaques,

photos, etc. can be displayed. Display of such personal items in what is to be a

hallowed sanctuary of impartial justice bespeaks a fundamental misunderstanding

of the very proprietorship of that public space: it is the people’s courtroom, not an

oversized ante-room of some judge’s chambers.

                                          2
      The majority opinion hints that the display of the MADD award may have

been error but, determining that it did not affect Simpson’s substantial rights,

concludes such error, if any, is harmless. Yet, as noted by the majority, “If . . .

there is a ‘grave doubt’ that the result was free from the substantial influence of the

evidence, then the defendant’s substantial rights were affected.” Burnett v. State,

88 S.W.3d 633, 637 (Tex. Crim. App. 2002). “Grave doubt” is the situation in

which, “in the judge’s mind, the matter is so evenly balanced that he feels himself

in virtual equipoise as to the harmlessness of the error.” Id. at 637–38 (quoting

O’Neal v. McAninch, 513 U.S. 432, 433–36, 115 S. Ct. 992 (1995)). 1

      A plaque of commendation from one of the nation’s most well-established

interest groups on display behind the very bench at which a criminal court judge

presides is an imprimatur of that judge by that interest group. The balance of my

equipoise notwithstanding, because my review of the case leads me to believe that

1
      In O’Neal v. McAninch, the United States Supreme Court opined,

      [W]e consider here the legal rule that governs the special circumstance in
      which record review leaves the conscientious judge in grave doubt about
      the likely effect of an error on the jury’s verdict. (By ‘grave doubt’ we
      mean that, in the judge’s mind, the matter is so evenly balanced that he
      feels himself in virtual equipoise as to the harmlessness of the error.) We
      conclude that the uncertain judge should treat the error, not as if it were
      harmless, but as if it affected the verdict (i.e., as if it had a ‘substantial and
      injurious effect or influence in determining the jury’s verdict’).

      513 U.S. 432, 435, 115 S. Ct. 992 (1995).

                                              3
the display was error and that it had a substantial influence in determining the

jury’s verdict, I respectfully dissent.

                                               Jim Sharp
                                               Justice

Panel consists of Justices Jennings, Sharp, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).

                                           4


                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 18 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS

                            FOR THE NINTH CIRCUIT

LONNIE DAWSON,                                   No. 10-55383

               Petitioner - Appellant,           D.C. No. 5:08-cv-01070-AHS

  v.
                                                 MEMORANDUM *
NORWOOD, Warden,

               Respondent - Appellee.

                    Appeal from the United States District Court
                        for the Central District of California
                   Alicemarie H. Stotler, District Judge, Presiding

                              Submitted July 12, 2011 **

Before:        SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

       Federal prisoner Lonnie Dawson appeals pro se from the district court’s

judgment denying his 28 U.S.C. § 2241 habeas petition. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm the district court.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Dawson challenges the prison disciplinary decision finding him guilty of

using a telephone to further criminal activity and resulting in a 60-day loss of good

time credits. Specifically, Dawson contends that his due process rights were

violated during the disciplinary hearing because the incident report improperly

charged him with violating Code 197 instead of Code 197A and because the

discipline hearing officer’s decision is not supported by some evidence. The

record reflects that Dawson received all process that was due and that some

evidence supports the disciplinary findings. See Wolff v. McDonnell, 418 U.S.

539, 563-67 (1974); see also Superintendent v. Hill, 472 U.S. 445, 455 (1985).

      AFFIRMED.

                                          2                                    10-55383


578 F.3d 655 (2009)
Charles C. MIDDLETON, Sr., Plaintiff-Appellant,
v.
CITY OF CHICAGO, Defendant-Appellee.
No. 08-2806.
United States Court of Appeals, Seventh Circuit.
Argued April 14, 2009.
Decided August 24, 2009.
*656 Denise M. Mercherson (argued), Chicago, IL, for Plaintiff-Appellant.
Christopher S. Norborg (argued), Office of the Corporation Counsel, Chicago, IL, for Defendant-Appellee.
*657 Before KANNE, ROVNER, and WOOD, Circuit Judges.
KANNE, Circuit Judge.
Charles Middleton served in the United States Air Force from 1960 until he was honorably discharged in December 1989. Almost four years later, in 1993, he applied for two positions with the City of Chicago. Despite interviewing for both positions, Middleton received neither. The City informed him in November 1994 that he had not been selected for the first job, and he never heard back about the other.
Nearly thirteen years later, on July 26, 2007, Middleton sued the City, claiming that it refused to hire him because of his military service in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), Pub.L. No. 103-353, 108 Stat. 3149 (codified as amended at 38 U.S.C. § 4301 et seq.). On June 23, 2008, the district court held that Middleton's USERRA claim was barred by the four-year "catch all" statute of limitations provided by 28 U.S.C. § 1658(a), and it granted the City's motion to dismiss his fourth amended complaint. Middleton filed his notice of appeal on July 18.
Approximately three months later, on October 10, 2008, Congress enacted the Veterans' Benefits Improvement Act (VBIA), Pub.L. No. 110-389, 122 Stat. 4145 (codified in scattered sections of 38 U.S.C.). Relevant to this appeal, the VBIA contained a provision stating that no limitations period applies to USERRA claims: "If any person seeks to file a complaint or claim with the Secretary [of Labor], the Merit Systems Protection Board, or a Federal or State court under this chapter alleging a violation of this chapter, there shall be no limit on the period for filing the complaint or claim." VBIA § 311, 38 U.S.C. § 4327(b).
Middleton's appeal raises two issues: (1) whether § 1658's four-year statute of limitations barred his claim; and (2) even if it did, whether the VBIA's recent amendment retroactively revives this lawsuit. We review de novo the district court's order granting a Rule 12(b)(6) motion to dismiss based on the statute of limitations. Dominguez v. Hendley, 545 F.3d 585, 588 (7th Cir.2008). We accept as true all factual allegations in the complaint, see Cole v. U.S. Capital, 389 F.3d 719, 724 (7th Cir.2004), meaning that, for purposes of this appeal, we must assume that the City refused to hire Middleton because of his prior military service. Middleton's complaint does not allege that the City engaged in improper conduct after November 1994, and if the four-year statute of limitations applies and is unaffected by the VBIA, his claim is barred.

I. Applicability of 28 U.S.C. § 1658(a) to USERRA Claims
Middleton first argues that the four-year statute of limitations found in 28 U.S.C. § 1658 did not apply to his USERRA claim against the City. The district court disagreed and held that Middleton's claim was indeed time-barred. We agree with the district court.
On December 1, 1990, Congress enacted § 1658 in response to criticism regarding the lack of a uniform federal statute of limitations. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 377-80, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004). Among other purposes, Congress sought to minimize the federal courts' practice of borrowing statutes of limitations from the states. See id. The result was a "catch all" statute of limitations for federal claims:
Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced *658 later than 4 years after the cause of action accrues.
28 U.S.C. § 1658(a). This text makes clear that any action "arising under" a federal statute enacted after December 1, 1990, is subject to § 1658. See id.; Jones, 541 U.S. at 380, 124 S.Ct. 1836.
Nearly four years later, on October 13, 1994, Congress passed USERRA. The statute did not include an express statute of limitations. Congress's only reference to a limitations period was that "[n]o State statute of limitations shall apply to any proceeding under this chapter." USERRA § 2, 38 U.S.C. § 4323(c)(6) (1994). USERRA did not mention the federal statute of limitations in § 1658, nor did it expressly provide that claims under the new law were exempt from any limitations period altogether.
At first blush, the answer to our question appears fairly straightforward. After all, when interpreting a statute, we must begin with its text and assume "that the ordinary meaning of that language accurately expresses the legislative purpose." Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252, 124 S.Ct. 1756, 158 L.Ed.2d 529 (2004) (quotations omitted). Unless Congress expressed a clear intention to the contrary, a statute's language is conclusive. Lamie v. U.S. Tr., 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) ("It is well established that `when the statute's language is plain, the sole function of the courtsat least where the disposition required by the text is not absurdis to enforce it according to its terms.'" (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000))). Simply applying the language of § 1658(a) to USERRA indicates that the latter was subject to the former: this is a civil action; USERRA is an act of Congress; it was enacted well after § 1658(a); and it did not "otherwise provide" for a different limitations period.
As with many legal issues, however, clear solutions are easily clouded. Middleton offers two arguments in an attempt to salvage his thirteen-year-old USERRA claim. First, he avers that USERRA was not "enacted after" § 1658, as the Supreme Court defined that phrase in Jones, 541 U.S. 369, 124 S.Ct. 1836, 158 L.Ed.2d 645. Second, he claims that USERRA's legislative history and the Department of Labor's interpretation of the law indicate that Congress never meant for a statute of limitations to apply. In the end, the clouds clear, and we find nothing that overcomes the plain meaning of the statutory text.

A. USERRA Created a New Cause of Action
We must first determine whether a cause of action under USERRA "aris[es] under an Act of Congress enacted after" December 1, 1990. 28 U.S.C. § 1658(a). Although Congress passed USERRA in 1994, it was the latest in a series of federal laws seeking to protect the ability of our veterans to obtain employment upon returning to civilian life. According to Middleton, USERRA did not establish a new cause of action in 1994, but instead amended its predecessor statute, commonly referred to as the Veterans' Reemployment Rights Act of 1974 (VRRA). See Pub.L. No. 93-508, § 404(a), 88 Stat. 1578, 1594 (codified at 38 U.S.C. § 2021 et seq.) (recodified at 38 U.S.C. § 4301 et seq. by the Veterans' Benefits Act of 1992, Pub.L. No. 102-568, § 506, 106 Stat. 4320, 4340), amended by USERRA. Because the VRRA predated § 1658, Middleton argues that the federal statute of limitations does not apply.
In Jones, the Supreme Court held that "a cause of action `aris[es] under *659 an Act of Congress enacted' after December 1, 1990and therefore is governed by § 1658's 4-year statute of limitations-if the plaintiff's claim against the defendant was made possible by a post-1990 enactment." 541 U.S. at 382, 124 S.Ct. 1836 (alteration in original). This principle governs even if the new law amended a preexisting law; Congress often creates new causes of action by amending existing statutes, and § 1658(a) is not limited "to entirely new sections of the United States Code." Id. at 381, 124 S.Ct. 1836. "What matters is the substantive effect of an enactmentthe creation of new rights of action and corresponding liabilitiesnot the format in which it appears in the Code." Id. As the Court directed, we must determine "whether the plaintiff has alleged a violation of the relevant statute as it stood prior to December 1, 1990, or whether her claims necessarily depend on a subsequent amendment." Id. at 384, 124 S.Ct. 1836.
To answer that question, we return to the VRRA, which Congress passed in 1974. The VRRA provided veterans with certain rights and protections upon their return to the workforce, and it barred employment discrimination based on a reservist's military service. See Pub.L. No. 93-508, sec. 404, § 2021(a)(B), (b)(3), 88 Stat. 1578, 1595-96 (1974). The only remedy available under the VRRA was injunctive relief and recovery of lost wages and benefits. Id. sec. 404, § 2022.
In 1994, Congress replaced the VRRA with USERRA "to clarify, simplify, and, where necessary, strengthen the existing veterans' employment and reemployment rights provisions." H.R.Rep. No. 103-65(I), at 18 (1993) (emphasis added), as reprinted in 1994 U.S.C.C.A.N. 2449, 2451; see also S.Rep. No. 103-158, at 33 (1993) (noting that USERRA "would restructure, clarify, and improve" the VRRA (emphasis added)). Among other improvements, if an employer engaged in willful discrimination, USERRA permitted a plaintiff to seek liquidated damages, a form of relief unavailable under the VRRA. See USERRA sec. 2, § 4324(c)(1)(A)(iii). With that new provision, Congress converted what had been an equitable claim into a legal one, which brought along the corresponding right to a jury trial. See Maher v. City of Chi., 463 F.Supp.2d 837, 844 (N.D.Ill.2006) (holding that liquidated damages under USERRA are punitive and therefore subject to trial by jury); cf. Calderon v. Witvoet, 999 F.2d 1101, 1109 (7th Cir.1993) (holding that actions seeking liquidated damages under a different statute are "suits at common law" for purposes of the Seventh Amendment's right to a jury trial); Troy v. City of Hampton, 756 F.2d 1000, 1003 (4th Cir.1985) (holding that claims under the VRRA are equitable and a plaintiff is not entitled to a jury trial). Consequently, USERRA established additional rights and liabilities that did not exist under the VRRA.
Middleton refers us to an unpublished district court case, decided before Jones, holding that USERRA claims were not subject to § 1658. See Akhdary v. City of Chattanooga, No. 1:01-CV-106, 2002 WL 32060140 (E.D.Tenn. May 22, 2002). In Akhdary, the district court stated, "Section 1658 applies `only when Congress establishes a new cause of action without reference to preexisting law.' The USERRA does not establish a new cause of action; instead, it amends the preexisting law of the VRRA." Id. at *6 (citations omitted) (quoting Zubi v. AT & T Corp., 219 F.3d 220, 225 (3d Cir.2000)). But that district court's reasoning is incompatible with the test the Supreme Court announced in Jones. As the Court made clear, the important concern is not whether an amendment refers to preexisting law, but the amendment's substantive effect on the rights and liabilities of the parties. 541 U.S. at 381, 124 S.Ct. 1836. *660 After the Court decided Jones, several lower courts, including a district court in our circuit and one in the same district as Akhdary, have found that USERRA is subject to the four-year limitations period in § 1658.[1]See Wagner v. Novartis Pharm. Corp., 565 F.Supp.2d 940, 945 (E.D.Tenn. July 10, 2008) (collecting cases); Nino v. Haynes Int'l, Inc., No. 1:05-cv-0602, 2005 WL 4889258, at *5 (S.D.Ind. Aug.19,2005).
USERRA provided veterans the chance to seek previously unavailable remedies, an amendment that materially altered the VRRA's enforcement provision. The rights to liquidated damages and a jury trial were not available to Middleton under the VRRA, and USERRA created new potential liability for the City. In his operative complaint, Middleton alleged that the City's "violation of USERRA was willful," and he sought all "just and proper" relief. Such relief encompasses the new remedies that Congress provided for veterans in USERRA. Applying the Supreme Court's reasoning in Jones, Middleton's current claim was "made possible by" and "necessarily depend[s]" on USERRA, meaning it arose under a cause of action enacted after § 1658. See 541 U.S. at 382, 384, 124 S.Ct. 1836.

B. Legislative History and Agency Interpretation of USERRA
Perhaps recognizing the difficulty of his textual argument, Middleton also turns to USERRA's legislative history to persuade us that Congress intended that no statute of limitations apply. But the only ambiguity we find concerning USERRA is in its legislative history, not in the statute's actual language. And where a statute's language is clear, we look to the legislative history only to determine whether Congress expressed a clear intention to the contrary of the literal application of that language. See Bowlds v. Gen. Motors Mfg. Div. of the Gen. Motors Corp., 411 F.3d 808, 811 (7th Cir.2005). We find no contrary intention here.
Middleton cites congressional reports to support his argument, which are often of limited use in discerning congressional intent. See Conroy v. Aniskoff, 507 U.S. 511, 518-19, 113 S.Ct. 1562, 123 L.Ed.2d 229 (1993) (Scalia, J., concurring in the judgment). Even so, the reports to which Middleton refers us speak solely to Congress's intention that USERRA not be subject to state statutes of limitations. See H.R.Rep. No. 103-65(I), at 39;[2] S.Rep. No. 103-158, at 70.[3] Congress expressed no desire for USERRA claims to be immune from § 1658(a)'s limitations period. Of course, under USERRA's predecessor, the VRRA, the express provision that no state statute of limitations should apply effectively meant that no statute of limitations appliedthere was no federal statute of limitations until 1990. But USERRA came four years after § 1658, and *661 Congress was well aware that it had recently enacted a catch-all limitations period governing any claim under a subsequent act. We see no clear congressional intent contrary to the statutory language.
Middleton also asks us to adopt the Department of Labor's interpretation of USERRA. The DOL is charged with promulgating rules for administering USERRA, 38 U.S.C. § 4331(a), and its position has been that the law is not subject to § 1658, see USERRA Preamble, 70 Fed. Reg. 75,246, 75,287-88 (Dec. 19, 2005). In the preamble to its final rule (codified at 20 C.F.R. § 1002.311), the DOL noted that it "has long taken the position that no Federal statute of limitations applied to actions under USERRA" but that at least one district court had reached the opposite conclusion. USERRA Preamble, 70 Fed. Reg. at 75,287. After considering comments on the issue, the DOL stated that it would maintain its original position that no statute of limitations applied to USERRA, but it noted that "the issue will ultimately be resolved by the courts." Id. at 75,288. The DOL then offered the following advice:
Until the issue is resolved, potential USERRA plaintiffs would be well advised to file USERRA claims within section 1658's four-year period. Accordingly, the Department has amended section 1002.311 to acknowledge that at least one court has held that 28 U.S.C. 1658 applies to actions under USERRA, and that individuals asserting rights under USERRA should determine whether the issue of the applicability of the Federal four-year statute of limitations has been resolved and, in any event, act promptly to preserve their rights under USERRA.
Id.
We disagree with Middleton's argument that we should defer to the DOL's interpretation. First, we defer to an agency's reasonable interpretation of a statute "only where `Congress has not directly addressed the precise question at issue' through the statutory text." Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 665, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). That Congress did not articulate a statute of limitations in USERRA perhaps suggests some ambiguity, but there is no ambiguity in the limitations provision of § 1658, which applies to any act of Congress enacted after December 1, 1990, unless that law otherwise provides. Congress did not "otherwise provide" in USERRA. Second, in explaining its position in the preamble, the DOL relied heavily on pre-Jones case law and the inconclusive legislative history we have just discussed. See USERRA Preamble, 70 Fed.Reg. at 75,287-88. Third, although the preamble to 20 C.F.R. § 1002.311 states that the DOL believes no statute of limitations applies to USERRA, the rule itself is much less certain: "USERRA does not have a statute of limitations, and it expressly precludes the application of any State statute of limitations." 20 C.F.R. § 1002.311. The DOL is correct that USERRA "does not have" a limitations periodCongress did not include an express statute of limitations within the statute. The DOL's rule then hedges. It explains that at least one court has applied § 1658's four-year statute of limitations, that laches may also apply, that any individual with a USERRA claim should determine whether this issue has been resolved by the courts, and that the individual should act promptly. Id. The DOL's uncertainty on this issue further persuades us to withhold any deference its interpretation might otherwise be due.
Accordingly, USERRA's legislative history and the DOL's interpretation of the *662 law do not convince us that Congress intended to immunize USERRA claims from § 1658.

C. Section 1658 Applies to USERRA
We recognize Congress's desire to protect the employment and reemployment rights of our many veterans. Our country's population owes a great debt to the men and women who have served to protect us. We also acknowledge that USERRA is to be liberally construed. Davis v. Advocate Health Ctr. Patient Care Express, 523 F.3d 681, 683-84 (7th Cir.2008). But we are charged with interpreting the laws that Congress enacts based on the language that it uses. Congress enacted USERRA well after it created the four-year limitations period in § 1658, and we presume that Congress knew that any new federal statute would be subject to such a limitation unless it "otherwise provided by law." Thus, if Congress wanted a different limitations period to apply to USERRAor none at allit needed to say so. And this is precisely what Congress did in 2008, when it passed the Veterans' Benefits Improvement Act, bringing us to our next questionwhether the VBIA applied to Middleton's claim.

II. The Retroactive Application of the VBIA
Middleton's next argument is that even if § 1658 applied to his USERRA claim when he filed it, Congress's recent enactment of the VBIA saves his lawsuit. The district court granted the City's motion to dismiss on June 23, 2008; Middleton filed his notice of appeal on July 18; and the VBIA became effective on October 10. Middleton now claims that Congress enacted the VBIA to clarify that USERRA was never subject to any statute of limitations, and, consequently, the new provision should revive his claim. We disagree.

A. The VBIA's Statutory Language
We turn first to the language of the disputed legislation. The VBIA struck the provision in USERRA that prohibited applying state statutes of limitation, formerly, as amended, at 38 U.S.C. § 4323(i), and replaced it with the following:
If any person seeks to file a complaint or claim with the Secretary [of Labor], the Merit Systems Protection Board, or a Federal or State court under this chapter alleging a violation of this chapter, there shall be no limit on the period for filing the complaint or claim.
Pub.L. No. 110-389, § 311(f)(1), 122 Stat. 4145, 4164 (2008) (codified at 38 U.S.C. § 4327(b)).
As we detailed above, our first stop in interpreting legislation is the language that Congress employed, Engine Mfrs. Ass'n, 541 U.S. at 252, 124 S.Ct. 1756, and it is well established that a court should not apply a newly enacted statutory provision retroactively unless Congress has clearly mandated such an extension, see Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 946-47, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997); Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 619-20 (7th Cir.2007) (discussing the Supreme Court's decision in Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), and the general presumption of "antiretroactivity" in cases where a statute's temporal reach is ambiguous); Bowlds, 411 F.3d at 811; Diaz v. Shallbetter, 984 F.2d 850, 852 (7th Cir.1993) ("There is [a] venerable principle that changes in statutes do not apply to pending cases unless the legislature so commands, explicitly.").
The VBIA says nothing about whether § 4327(b) applies retroactively. In fact, the only hint in the text suggests that it applies prospectively: "If any person seeks to file a complaint or claim ...." Sec. *663 311(f)(1), § 4327(b) (emphasis added). Congress was aware that for § 4327(b) to have retroactive effect, it needed to say so expressly, and the absence of any such express language in the text indicates that Congress chose not to do so.
More importantly, however, is that even if we could interpret § 4327(b) to apply to some USERRA claims filed before October 10, 2008, this would not save Middleton's thirteen-year-old cause of action, which was already time-barred when § 4327(b) took effect. A plaintiff may overcome the general presumption against retroactivity, but doing so is "especially tough" when the amended law extends the time within which a plaintiff must file a lawsuit. Diaz, 984 F.2d at 852.
We typically presume that a newly extended statute of limitations does not revive a previously barred claim. See Vill. of Bellwood v. Dwivedi, 895 F.2d 1521, 1527 (7th Cir.1990) ("In the absence of evidence of a contrary legislative purpose, subsequent extensions of a statutory limitation period will not revive a claim previously barred." (quotations omitted)); cf. Hughes Aircraft Co., 520 U.S. at 950, 117 S.Ct. 1871 (noting that the extension of a statute of limitations after the preexisting period of limitations has expired "impermissibly revives a moribund cause of action").
"Laws enlarging the statute of limitations traditionally are applied prospectively; sometimes courts even hint that legislatures lack the power to revive claims that have become barred by lapse of time." Diaz, 984 F.2d at 852-53 (citing Bradley v. Sch. Bd. of Richmond, 416 U.S. 696, 720, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974)); see also Berman v. Blount Parrish & Co., 525 F.3d 1057, 1058-59 (11th Cir.2008) (refusing to apply an extended limitations period for certain securities fraud cases, added by § 804(a) of the Sarbanes-Oxley Act of 2002, to claims previously time-barred, and collecting cases, including our own in Foss v. Bear, Stearns & Co., 394 F.3d 540, 542 (7th Cir.2005)).
Middleton asks us to apply § 4327(b) to revive a time-barred claim, but he has presented nothing to overcome our presumption against doing so. Congress said nothing about retroactivity, and under the general rule we have just stated, we cannot apply § 4327(b) to his thirteen-year-old USERRA claim. Because Middleton alleged conduct occurring more than four years before Congress enacted the VBIA, we need not decide whether § 4327(b) applies retroactively to a claim that accrued within the four years preceding the VBIA.

B. Whether the VBIA Clarified or Altered Existing Law
To avoid this result, Middleton argues that the VBIA merely clarified, rather than altered, existing law. Such legislation is not typically subject to a presumption against retroactivity and is applied to all cases pending on the date of enactment. See, e.g., ABKCO Music, Inc. v. LaVere, 217 F.3d 684, 689 (9th Cir. 2000) ("Normally, when an amendment is deemed clarifying rather than substantive, it is applied retroactively." (quotations omitted)); Piamba Cortes v. Am. Airlines, Inc., 177 F.3d 1272, 1283 (11th Cir. 1999) ("[C]oncerns about retroactive application are not implicated when an amendment... is deemed to clarify relevant law rather than effect a substantive change in the law."); cf. Clay v. Johnson, 264 F.3d 744, 749 (7th Cir.2001) (noting that an agency rule clarifying an unsettled area of law may be applied to case at hand). A number of factors may indicate whether an amendment is clarifying rather than substantive: whether the enacting body declared that it was clarifying a prior enactment; whether a conflict or ambiguity existed prior to the amendment; and *664 whether the amendment is consistent with a reasonable interpretation of the prior enactment and its legislative history. Piamba Cortes, 177 F.3d at 1283-84; see also Liquilux Gas Corp. v. Martin Gas Sales, 979 F.2d 887, 890 (1st Cir.1992).
We disagree with Middleton that the VBIA was clarifying legislation. As we explained in the first portion of our opinion, § 1658 applied to USERRA, and the text of the two statutes was not ambiguous, leaving nothing for Congress to "clarify." Nor is the VBIA's amendment a reasonable interpretation of USERRA, which was silent on whether § 1658 should apply, or its legislative history, which contained nothing to contradict the clear language of § 1658. Rather than "clarifying" that no statute of limitations applied to USERRA, the 2008 Congress substantively changed the law so that § 1658 would not apply.
We find the text of § 4327(b) to be unambiguous. It does not mention clarification or retroactivity, and we need not turn to the legislative history of the provision. Even if, however, we peeked at that history to determine whether a literal interpretation of the language would contravene Congress's intent, see Bowlds, 411 F.3d at 811, we find nothing to convince us that the VBIA applies to Middleton's claim. First, reliance on a legislature's observations regarding a prior legislature's intent is of marginal utility at best. See Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 117, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980) (noting "the oft-repeated warning that the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one." (quotations omitted)); see also Atchison, Topeka & Santa Fe Ry. Co. v. Blanchette, 628 F.2d 1011, 1014 (7th Cir.1980) ("[T]he views of a later Congress cannot be accorded the weight of contemporary legislative history in a consideration of the intent of an earlier one." (quotations omitted)).
Second, the only indication that perhaps Congress intended to clarify USERRA or that the VBIA should have retroactive effect came in a Senate report:
Subsection 302(f) of the Committee bill would clarify that the original intent of Congress was that USERRA would not be subject to a federal or state statute of limitations period and specifically states that there is no time limit for a person to file a complaint.... The application of a federal statute of limitation period under USERRA is inconsistent with the intent of Congress....
S. Rep. 110-449, at 26 (2008), as reprinted in 2008 U.S.C.C.A.N. 1722, 1748-49. Although Congress used the word "clarify," its act must also comport with other attributes of "clarifying" legislation to avoid being a substantive change in the law. We are hesitant in this case to afford that single word more weight than it deserves. The VBIA's legislative history says nothing regarding retroactivity. That the 2008 Congress believed USERRA to be unconstrained by a statute of limitations from birth is clear, but the 2008 Congress did not state that its amendment should apply to all claims.
Furthermore, Congress did not express any intent to clarify USERRA in the statute itself. We proceed with caution when Congress declares its intent to clarify a law in the legislative history rather than the amendment's text. See Piamba Cortes, 177 F.3d at 1284 ("As a general rule, `[a] mere statement in a conference report of [subsequent] legislation as to what the Committee believes an earlier statute meant is obviously less weighty' than a statement in the amendment itself." (alterations in original) (quoting Consumer Prod. Safety Comm'n, 447 U.S. at 118 n. 13, 100 S.Ct. 2051)). In Brown v. Thompson, *665 the Fourth Circuit held that certain amendments were clarifying, noting that "[m]ost significant to our determination here, Congress formally declared in the titles of the relevant subsections of [the amending act] that the amendments of [the original act] were `clarifying' and `technical,'" and that Congress "expressly provided in [the amending act] that these technical and clarifying amendments be made effective `as if included in the enactment' of the [original act]." 374 F.3d 253, 259 (4th Cir.2004). The VBIA contains no such language.
Indeed, as the City points out, Congress has considered similar amendments that would have expressly provided for retroactive application of the VBIA. See, e.g., S. 3432, 110th Cong. § 7 (as introduced by Sens. Casey, Kennedy, and Obama, Aug. 1, 2008) (specifically entitled "Clarification that USERRA Has No Statute of Limitations," and stating that the amendment shall apply "to all actions or complaints filed under [USERRA] that are pending on or after the date of the enactment of this Act"). Congress knew how to make the VBIA retroactive, and it chose not to do so.
Without guidance from Congress regarding the effect of the VBIA on pending claims, there is nothing to overcome both the natural meaning of § 4327(b)'s text and our general presumption that an amendment to a statute of limitations should not apply retroactively. The VBIA does not apply to Middleton's claim.

III. Conclusion
Congress enacted USERRA nearly four years after enacting § 1658, and it did not include in USERRA a statute of limitations or a provision that no limitations period should apply. Accordingly, USERRA is subject to § 1658. Congress, recognizing that USERRA did not discuss the federal statute of limitations, passed the VBIA to provide expressly that no statute of limitations shall apply. The legislature, however, stopped short of bestowing retroactive effect upon the new law, and we decline to extend it without a clear directive. Therefore, we AFFIRM the district court's decision granting the City's motion to dismiss.
NOTES
[1]  We have not previously determined whether § 1658's four-year statute of limitations applies to USERRA claims. In two cases involving a similar issue, we applied the equitable doctrine of laches to USERRA claims. See Maher v. City of Chi., 547 F.3d 817, 821-23 (7th Cir.2008); Miller v. City of Indianapolis, 281 F.3d 648, 653-54 (7th Cir.2002). In both Maher and Miller, the court did not raise or mention the applicability of § 1658(a).
[2]  "[The applicable provision] would reaffirm... that no State statute of limitation shall apply to any action under this chapter. It is also intended that state statutes of limitations not be used even by analogy." H.R.Rep. No. 103-65(I), at 39 (emphases added).
[3]  "[The applicable provision] would provide... that no State statute of limitations would apply to any proceeding under [USERRA].... [T]he Committee believes that ... State statutes of limitations should not be used even for guidance in determining what is undue delay." S.Rep. No. 103-158, at 70 (emphases added).


MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                FILED
regarded as precedent or cited before any                                  Nov 06 2019, 9:27 am

court except for the purpose of establishing                                      CLERK
                                                                            Indiana Supreme Court
the defense of res judicata, collateral                                        Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
John Andrew Goodridge                                   Curtis T. Hill, Jr.
Evansville, Indiana                                     Attorney General of Indiana

                                                        Caroline G. Templeton
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana

                                          IN THE
    COURT OF APPEALS OF INDIANA

Charles James Popp,                                     November 6, 2019
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        19A-PC-324
        v.                                              Appeal from the Vanderburgh
                                                        Superior Court
State of Indiana,                                       The Honorable Mary Margaret
Appellee-Respondent.                                    Lloyd, Judge
                                                        Trial Court Cause No.
                                                        82D03-1307-PC-5

Barnes, Senior Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019                     Page 1 of 17
                                      Statement of the Case
[1]   Charles Popp appeals the post-conviction court’s denial of his petition for post-

      conviction relief. We affirm.

                                                    Issue
[2]   Popp raises two issues for our review, which we restate as one: whether the

      post-conviction court erred when it concluded that Popp was not denied the

      effective assistance of trial counsel.

                               Facts and Procedural History
[3]   The underlying facts, as stated in Popp’s direct appeal, are as follows:

              When A.R. was twelve or thirteen, her mother worked with
              Popp’s girlfriend, and eventually the families became friends. At
              some point, Popp gained custody of four of his nieces and
              nephews, and A.R. would come over to babysit them. In
              December of 2009, when A.R. was fourteen, she fell asleep on
              Popp’s couch. Popp came up next to her and put his hand down
              her pants, telling her that it was okay. A.R. ran to the bathroom
              and Popp told her that if she told anyone, he would kill her.
              A.R. continued to go to Popp’s house after this, and the incidents
              continued and escalated, with Popp forcing A.R. to participate in
              oral sex, and attempting intercourse with her, despite her
              screaming for him to stop. A.R. kept a diary specifically of the
              incidents with Popp, and referred to this diary at trial in order to
              recall exactly what Popp did to her on a given date. Eventually,
              around the summer of 2010, A.R. was able to come up with an
              excuse to stop going to Popp’s house. In April of 2011, A.R.
              spoke to a school resource officer and then to a detective about
              Popp. The detective then questioned Popp at the police station

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 2 of 17
        and recorded the interrogation. On April 18, 2011, Popp was
        charged with twenty-one counts stemming from these incidents.

        In August 2011, Popp deposed A.R. It appears that at the
        deposition Popp first learned that A.R. had kept a second diary,
        and Popp claims that there was an unrecorded discussion
        following the deposition in which someone indicated that the
        second diary might be of interest to Popp. The next month Popp
        filed a pretrial discovery motion requesting a copy of the second
        diary. Thereafter, it was learned that the second diary had been
        destroyed. There was conflicting testimony about both when the
        second diary was destroyed, and whether it might have had any
        information regarding the incidents with Popp. A.R.’s youth
        pastor, Hugh Crowe, told a detective that A.R. had destroyed a
        diary during an exercise in which members got rid of something
        from their past, and that the exercise had taken place in the
        summer of 2011. In an affidavit and at trial, Crowe testified that
        the exercise had taken place in March of 2011, and that A.R. had
        told him that the diary contained some information about what
        happened to her in her case. At trial, A.R. referenced the diary
        that she kept of the incidents in order to remember the details of
        each event, and that diary was admitted into evidence. She also
        testified that she kept a separate second diary in which she had
        written about normal daily events like school and sports, but not
        the incidents with Popp. A.R. testified that she had destroyed
        the second diary in October or November of either 2010 or 2011;
        she did not remember which year. In both January and March of
        2012, Popp filed motions to dismiss the case or in the alternative
        to exclude evidence or testimony regarding A.R.’s diary; both
        motions were denied.

        A jury trial was held in March 2012. . . . The jury found Popp
        guilty of sexual misconduct with a minor as a Class C felony,
        nine counts of sexual misconduct with a minor as Class B
        felonies, and intimidation as a Class A misdemeanor; Popp was

Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 3 of 17
                found not guilty on the remaining ten counts. The court
                sentenced Popp to a total of fifty-five years executed.

      Popp v. State, No. 82A01-1205-CR-197 (Ind. Ct. App. Feb. 20, 2013), trans.

      denied.

[4]   On direct appeal, Popp argued that the trial court improperly denied his motion

      to dismiss the case or in the alternative to exclude evidence of A.R.’s second

      diary and improperly replayed for the jury, after deliberations had begun, the

      recording of his police interview. This Court affirmed his convictions in

      February 2013, and the Indiana Supreme Court thereafter denied transfer. See

      id.

[5]   In July 2013, Popp filed his pro se petition for post-conviction relief. At some

      point, counsel appeared for Popp, and a hearing on his post-conviction petition

      was held on August 2, 2017. The court took the matter under advisement and

      allowed the parties to submit further evidence and proposed findings of fact and

      conclusions of law. After numerous extensions of time, the parties filed their

      post-hearing documents, and, on January 11, 2019, the court entered its

      findings of fact and conclusions of law denying Popp’s petition for post-

      conviction relief. This appeal ensued.

                                   Discussion and Decision
[6]   Popp contends the post-conviction court erred by concluding he failed to show

      that his trial counsel’s performance was deficient. He argues that his counsel

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 4 of 17
      was ineffective for failing to obtain and present exculpatory evidence and for

      conceding his guilt in closing argument.

[7]   To the extent the post-conviction court has denied relief, the petitioner appeals

      from a negative judgment and faces the rigorous burden of showing that the

      evidence, as a whole, leads unerringly and unmistakably to a conclusion

      opposite that reached by the post-conviction court. Harris v. State, 762 N.E.2d

      163, 166 (Ind. Ct. App. 2002), trans. denied. A post-conviction court’s findings

      and judgment will be reversed only upon a showing of clear error — that which

      leaves us with a definite and firm conviction that a mistake has been made.

      Kistler v. State, 936 N.E.2d 1258, 1261 (Ind. Ct. App. 2010), trans. denied. In this

      review, findings of fact are accepted unless they are clearly erroneous, and no

      deference is accorded to conclusions of law. Id. The post-conviction court is

      the sole judge of the weight of the evidence and the credibility of witnesses.

      Witt v. State, 938 N.E.2d 1193, 1196 (Ind. Ct. App. 2010), trans. denied.

[8]   To prevail on a claim of ineffective assistance of counsel, a defendant is

      required to establish both (1) that counsel’s performance was deficient and (2)

      that counsel’s deficient performance prejudiced the defendant. Johnson v. State,

      948 N.E.2d 331, 334 (Ind. 2011) (citing Strickland v. Washington, 466 U.S. 668,

      687-96, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). To satisfy the first element,

      the defendant must show that counsel’s representation fell below an objective

      standard of reasonableness and that counsel’s errors were so serious that the

      defendant was denied the counsel guaranteed by the Sixth Amendment. Bethea

      v. State, 983 N.E.2d 1134, 1138 (Ind. 2013). In order to satisfy the second

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 5 of 17
       element, the defendant must show prejudice; that is, a reasonable probability

       that, but for counsel’s errors, the result of the proceeding would have been

       different. Id. at 1139. There is a strong presumption that counsel rendered

       effective assistance and made all significant decisions in the exercise of

       reasonable professional judgment, and the defendant has the burden of

       overcoming this presumption. Harris, 762 N.E.2d at 168-69.

[9]    Popp first claims that his trial counsel was ineffective due to her failure to

       obtain and present exculpatory evidence to the jury. Specifically, Popp, who

       had a penile piercing, asserts that counsel should have photographed him with

       the piercing in place and presented the photos to the jury in order to impeach

       the victim.

[10]   Although photographs of Popp’s piercing were not presented to the jury, the

       existence of the piercing was. In cross-examination of the victim, defense

       counsel asked:

               [Defense counsel]: Back during the time that you testified about .
               ..

               [A.R.]: Oh . . .

               [Defense counsel]: Okay. Did – does [Popp] have any
               piercing[]s?

               [A.R.]: Yes.

               [Defense counsel]: Where?

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 6 of 17
        [A.R.]: He had his tongue pierced.

        [Defense counsel]: His tongue. Alright. Anything else?

        [A.R.]: He might have had ear, but I don’t remember.

        [Defense counsel]: Okay. Anything – anything else?

        [A.R.]: No.

Trial Tr., Ex. Vol. 6, pp. 98-99. Defense counsel also brought up Popp’s

piercings during direct examination of his fiancée:

        [Defense counsel]: Does [Popp] have any piercing[]s? Let me
        rephrase that, I didn’t ask that very good or very well. Back
        during the December 09 through June 2010, that period [of] time,
        did [Popp] have piercing[]s?

        [Fiancée]: Yes.

        [Defense counsel]: What?

        [Fiancée]: Three ear holes and a Prince Albert piercing.

        [Defense counsel]: What is a Prince Albert piercing?

        [Fiancée]: A piercing on the tip of the penis.

        [Defense counsel]: Did he have his tongue – an ear – I call it an
        earring – an earring in his tongue?

Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 7 of 17
               [Fiancée]: Not during that time period.

       Id. at 175.

[11]   In addition, during her closing argument, defense counsel highlighted the issue:

               I have to point out what I would say is fairly obvious. She –
               when I asked [A.R.] about piercing[]s and she said [Popp] had a
               tongue piercing and maybe some in his ears and then from
               [Popp’s fiancée] we find out that he has what’s known as Prince
               Albert piercing, which is where he has a piercing at the tip of his
               penis. I submit to you that’s something that’s going to be fairly
               obvious. If – if [A.R.] is [sic] allegations are as she states. That’s
               not something you’re going to not notice.

       Id. at 229. In its rebuttal, the State did not attempt to refute the existence of the

       piercing but rather claimed that its existence did not matter:

               And – and hinging on this obscenity of – of piercing the penis
               and I – I remember when the testimony came and I saw some of
               the men up there, I mean you literally winced when you heard
               that description. And, yeah, so did I. But what does that have to
               do with anything. Because if yeah he admitted to some of them
               [offenses] and she wants you to find him guilty of some of them,
               what difference does it make, if he had it in or didn’t have it in.
               It makes no difference. It makes no difference at all.

       Id. at 234.

[12]   Finally, for purposes of post-conviction relief, Popp deposed his trial counsel.

       In her deposition, she testified that the manner in which she dealt with Popp’s

       piercing was a matter of strategy. She had practiced law for thirty-two years,

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 8 of 17
during which time she had served as a public defender and a magistrate. As a

defense attorney, Popp’s trial counsel had handled a minimum of fifty high

level sex offense cases. When asked about dealing with the issue of Popp’s

piercing, she testified:

        [Trial counsel]: We discussed it. We had trial testimony.

        [PCR Counsel]: Now, in reviewing –

        [Trial counsel]: I asked the complaining witness about it, both in
        deposition and at trial, and she didn’t know what I was talking
        about. So we used part of that in argument that this is obviously
        – had he penetrated her, had he engaged in the activities that
        she’s complaining of, she would have noticed this. There’s no
        way, shape or form she would have not noticed this.

        [PCR counsel]: In that regard, did you use any visual –

        [Trial counsel]: No.

        [PCR counsel]: -- depiction?

        [Trial counsel]: No.

        *****

        [Trial counsel]: And it was uncontested that he had that
        piercing.

        *****

Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 9 of 17
        [Trial counsel]: My belief, it was not necessary to go into detail
        because it came out in testimony and it was uncontested. So why
        I – my fear was I’m going to alienate everybody I’ve got on my
        side in this jury. I’m not going to do that.

        [PCR counsel]: How would you alienate?

        [Trial counsel]: By offending them, by berating a point that had
        already been proven. Once I prove a point, move on. I’ve
        proven it; let’s go. [The prosecutor] even brought it up during his
        closing argument, talking about the disgusting piercing and the
        fact that yes, he had the piercing. It’s been proven. It’s
        disgusting. Thank God we didn’t – something, you know, like
        thank God they didn’t bring it out or whatever. So it was an
        uncontested issue, so there was no need.

        *****

        [Trial counsel]: I just – I stand by how I handled that issue.

        [PCR counsel]: Okay.

        [Trial counsel]: Because it did nothing – in my view, my
        strategy, it didn’t do anything to take away what he admitted to
        in the statement. It may – the fact that we proved it went to
        [A.R.’s] credibility. So that helped get the not guilties and the
        lesser includeds on the things that we ultimately were able to be
        successful on.

Appellant’s App. Vol. V, pp. 170-71, 172-74. In addition, Popp’s trial counsel

testified that “the jury really, really didn’t like” the detective that worked on

Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 10 of 17
       Popp’s case. Id. at 175. Moreover, counsel testified that the jury liked her but

       “didn’t like the prosecutors at all.” Appellant’s App. Vol. II, p. 68.

[13]   “Counsel is given significant deference in choosing a strategy which, at the time

       and under the circumstances, he or she deems best.” Wrinkles v. State, 749

       N.E.2d 1179, 1191 (Ind. 2001). The evidence here clearly shows that even if

       counsel had taken pictures of Popp’s piercing, she would not have used them at

       trial because evidence of the existence of the piercing was presented to the jury

       and that evidence was uncontradicted; defense counsel specifically pointed to

       the existence of the piercing as a basis for questioning the credibility of A.R.;

       counsel testified that, having practiced law for several decades in the

       community, she determined that explicit details and/or photos of the piercing

       had the potential to offend the jury so she made the tactical decision not to go

       into great detail in describing the piercing and/or to introduce photos of the

       piercing; and counsel did not want to alienate a jury she perceived to be friendly

       to the defense. See, e.g., id. at 1190-91 (finding that counsel were not ineffective

       for not presenting an insanity defense based on defendant’s methamphetamine

       addiction because counsel presented evidence of defendant’s addiction and its

       role in offenses and counsel believed it would be more harmful than helpful and

       would “put an additional layer of bad” on defendant). We cannot say the post-

       conviction court erred in concluding that Popp’s trial counsel was not

       ineffective.

[14]   For his second claim of ineffective assistance of trial counsel, Popp asserts that

       his counsel conceded his guilt in closing argument. Particularly, he refers to

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 11 of 17
       counsel’s comments regarding the offenses he admitted committing in his

       videotaped interrogation.

[15]   Popp was charged with twenty-one counts stemming from his alleged actions

       with A.R., two of which were Class A felonies and the bulk of which were

       Class B felonies. As part of their investigation of these offenses, the police

       conducted a videotaped interrogation of Popp, in which he admitted to some of

       the charged offenses. At trial, the video was admitted into evidence and viewed

       by the jury.

[16]   Popp does not specify in his brief the portion of counsel’s closing with which he

       claims error; however, in closing counsel stated:

               I have to say this, I have to – I have to, because I want to
               maintain my credibility with you. I’m not suggesting and I’m
               not arguing that the State’s burden wasn’t met in some of the
               instances. Why else would I have gone through all of the counts
               and told you what I think the evidence was. But what I’m urging
               you to do is this, as a collective unit and as individual[s], I’m
               asking you to determine if you are satisfied beyond a reasonable
               doubt that each and every element was proven in each and every
               count separately, considering the evidence you heard and
               observed.

               *****

               And, I’m going to ask you to find [Popp] guilty only of those
               things that you are convinced that ha[ve] been proven beyond a
               reasonable doubt, considering all of the evidence. And of those
               things[] you are not convinced of, then I ask you to find him not
               guilty.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 12 of 17
       Trial Tr., Ex. Vol. 6, p. 228, 230-31.

[17]   In her deposition testimony for purposes of Popp’s post-conviction claim, trial

       counsel testified:

               [PCR counsel]: So your trial strategy was –

               [Trial counsel]: Didn’t happen, not guilty.

               [PCR counsel]: Actual innocence?

               [Trial counsel]: Yeah.

               [PCR counsel]: At any time during the trial, did you modify that
               strategy?

               [Trial counsel]: During closing argument, what I did was – we
               were able to – during testimony, during the evi [sic] -- during the
               evidentiary part of the trial, through cross examination as well as
               witnesses, we were able to put forward evidence that on dates
               alleged, these acts could not have happened. So it was not
               through testimony of Mr. Popp. It was through other witnesses.
               Whether it was cross examination or direct defense witnesses, we
               were able to show that on certain dates [sic] could not have
               happened because of X, Y, and Z. And I spent a lot of time then
               – because the counts, the 21 counts were not in sequential order.
               There were dates floating every which way. So it was very
               difficult for us – both the state, I would think, the Court, I – and I
               knew for the jury to keep track of what dates did things belong in.
               So then during closing argument I actually had taken all of the
               dates and put them in sequential order. And so in my argument
               – in closing argument, I said, okay, here is [sic] counts – like, for
               example, Counts I and IV, these are the dates for them. They
               belong together. If you’ll remember, witnesses testified X, Y, and
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 13 of 17
        Z, so we know that couldn’t have happened because of this. And
        so what ultimately ended up was some of the dates were dates
        that coincided with the videotaped statement and that we were
        unable to bring forward, through cross examination or other
        witnesses, anything to contradict those.

        So my argument in closing was she’s not believable because of
        yada, yada, yada, that witnesses have shown us these couldn’t
        have happened because of this, which leaves us with this handful
        of counts yada, yada, yada and dates. So if you’re – if you find
        that those are his statements, his words are believable, we ask
        you to find him guilty only of those things that they’ve proven
        and that he admitted to.

        [PCR counsel]: Did you have a discussion with Mr. Popp
        regarding that strategy in closing argument prior to?

        [Trial counsel]: I think I did, yeah.

        [PCR counsel]: Did he agree to it?

        [Trial counsel]: Oh, no.

        [PCR counsel]: What was his position?

        [Trial counsel]: That’s not me on the video. I didn’t say those
        things.

        [PCR counsel]: That’s not him on the video?

        [Trial counsel]: Correct.

        [PCR counsel]: Wow. How did you deal with that?

Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 14 of 17
        [Trial counsel]: I said Mr. Popp, it is you. It’s you talking. I
        don’t know what else to say. And he maintained that was not
        him saying those words. He could not have said those words.
        That was not him.

Appellant’s App. Vol. V, pp. 164-68. Trial counsel also explained:

        [Trial counsel]: [Popp] never thought that it was him talking in
        the video.

        [PCR counsel]: How did that [a]ffect your trial strategy? Or did
        it?

        [Trial counsel]: Uh, I don’t think it did affect it. My main trial
        strategy was going after the girl.

        [PCR counsel]: Um, was it part of your strategy to try and get
        not guilty on certain counts and then accept –

        [Trial counsel]: My strategy going into it was to try and get not
        guilty on everything.

        *****

        [Trial counsel]: [A]s a lawyer we also have credibility so in order
        to get [the jury] to understand, I’m not feeding them a line of bull
        you can’t convict him on that stuff because we’ve shown you that
        it couldn’t have happened, but you have to decide about these
        other things.

        *****

Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 15 of 17
               [PCR counsel]: Do you think your closing argument was
               consistent with your trial strategy?

               [Trial counsel]: Yeah.

               [PCR counsel]: Do you think at any point you ever abandoned
               your trial strategy of “he didn’t do it, it didn’t happen?”

               [Trial counsel]: I don’t know if you abandon it or try to dance
               around it.

               *****

               [Trial counsel]: [Y]ou dance around so again you don’t lose
               credibility because of it.

       Appellant’s App. Vol. II, p. 73, 67, 76.

[18]   Undoubtedly, counsel was in a difficult position of reconciling her trial strategy

       of maintaining Popp’s innocence with preserving the credibility she had

       established with the jury. Consequently, rather than ignore Popp’s statement

       and risk diminishing her credibility with the jury, counsel acknowledged it,

       stating, “Let’s talk about [Popp]’s statement for a minute. You know, we’ve

       got to talk about that.” Trial Tr., Ex. Vol. 6, p. 225. She then painstakingly set

       about minimizing the damage Popp’s statement caused by asking the jury to

       determine whether the statement was improperly obtained by the police—

       specifically mentioning “trickery” and “deceit”—and, if so, not to consider it;

       explaining to the jury that a guilty verdict may not be rendered solely upon a

       defendant’s confession; and asking the jury to consider whether it was satisfied
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 16 of 17
       beyond a reasonable doubt that each and every element was proven on each

       and every separate count, while specifically pointing out inconsistencies in

       A.R.’s testimony. Id. at 226.

[19]   The evidence does not show that Popp’s trial counsel conceded his guilt.

       Rather, she made a strategic decision to acknowledge Popp’s statement in a

       manner that not only preserved her credibility with the jury but also attempted

       to persuade the jury to consider Popp’s innocence, in spite of his statement,

       especially concerning the offenses to which he did not confess. In straddling

       this fine line, counsel reminded the jury of the State’s onerous burden, urged it

       to hold the State accountable on each and every element, and attacked the

       credibility of the victim. This strategy appears to have been successful because

       Popp was found guilty on only eleven of twenty-one charged offenses. We

       cannot say the post-conviction court erred in concluding that Popp’s trial

       counsel was not ineffective.

                                                Conclusion
[20]   For the reasons stated, we conclude that Popp has failed to satisfy his burden of

       showing that the evidence leads unerringly and unmistakably to a conclusion

       opposite that reached by the post-conviction court.

[21]   Affirmed.

       Najam, J., and Riley, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-324 | November 6, 2019   Page 17 of 17


62 F.3d 1421
NOTICE:  Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.Keith T. HARSTAD;  Diane N. Harstad, doing business asHarstad Companies, Appellants,v.EGAN & SONS COMPANY, Appellee.Keith T. Harstad;  Diane N. Harstad, doing business asHarstad Companies, Appellants,v.Marcel Eibensteiner, Appellee.
Nos. 94-3195MN, 94-3196MN
United States Court of Appeals,Eighth Circuit.
Submitted:  May 17, 1995Filed:  Aug. 7, 1995

Appeals from the United States District Court for the District of Minnesota.
Before FAGG, Circuit Judge, WOOD* and JOHN R. GIBSON, Senior Circuit Judges
PER CURIAM.

1
Keith T. Harstad and Diane N. Harstad, doing business as Harstad Companies (Harstads), appeal the district court's adverse order granting summary judgment.  Having reviewed the record, we conclude the Harstads' arguments are foreclosed by this court's holding that the Harstads lack standing to pursue post-confirmation adversary proceedings to avoid and recover claimed preferential transfers.  Harstad v. First American Bank, 39 F.3d 898 (8th Cir.1994).  We thus affirm the district court.  See 8th Cir.  R. 47B.

*
 The Honorable Harlington Wood, Jr., Senior United States Circuit Judge for the Seventh Circuit, sitting by designation


200 P.3d 146 (2008)
345 Or. 460
CARVER
v.
HILL.
No. (S056586).
Supreme Court of Oregon.
December 10, 2008.
Petition for review denied.
De Muniz, C.J., and Walters, J., would allow.


169 Ga. App. 896 (1984)
315 S.E.2d 437
CITIZENS BANK, VIENNA
v.
BOWEN et al.
66848.
Court of Appeals of Georgia.
Decided January 31, 1984.
Rehearing Denied February 22, 1984.
John C. Pridgen, Verlin L. Jones, Jr., for appellant.
James W. Hurt, Thomas H. Hyman, for appellees.
SOGNIER, Judge.
Citizens Bank, Vienna, Georgia (the Bank) sued Lamar Bowen, Jr. and his father, D. L. Bowen, on four promissory notes executed by Lamar and guaranteed by D. L. Bowen. The Bowens had obtained the Bank's permission to voluntarily liquidate farm equipment that secured the various notes each had executed in favor of the Bank. The sales proceeds from D. L. Bowen's collateral were sufficient to pay his notes, but Lamar Bowen's equipment did not sell for an amount sufficient to satisfy his notes. The Bank brought the instant action to recover the deficiency. D. L. Bowen defended on the ground that his signature on the guaranties held by the Bank was obtained by fraud. The trial court directed a verdict in favor of the Bank against Lamar Bowen for the amount of the deficiency. The jury returned a verdict in favor of D. L. Bowen and the Bank appeals.
1. Appellant contends that the trial court erred by admitting into evidence testimony of oral statements between the parties made prior to or contemporaneously with the signing of the guaranties of payment, which statements attempted to vary the terms of the written documents. Appellees contend that the purpose of the statements was not to contradict the terms of the written agreements but to show that the agreements were void because D. L. Bowen's signature on the guaranties was obtained by fraud. Hinson v. Hinson, 221 Ga. 291, 294 (2) (144 SE2d 381) (1965); Johnson v. Sherrer, 197 Ga. 392, 403 (8) (29 SE2d 581) (1944). Appellant argues, however, that appellees are precluded from their defense of fraud by the "read or perish" rule that "[o]ne having the capacity and opportunity to read a written contract cannot afterwards set up fraud in the procurement of his signature to the instrument. [Cits.]" Craft v. Drake, 244 Ga. 406, 408 (260 SE2d ___) (1979). Appellees argue that D. L. Bowen's admitted failure to read the guaranty instruments was excused by certain exceptions to the "read or perish" rule.
The Bank had permitted Lamar and D. L. Bowen to finance equipment purchases by using jointly owned farm equipment as collateral. This practice was criticized by FDIC bank examiners and the Bank asked the Bowens to come in in order to obtain cross-endorsements on their respective notes. The Bank also wanted D. L. Bowen to endorse Lamar Bowen's loans because Lamar's collateral was insufficient. The need for cross signatures was initially explained to the Bowens by a Bank employee, Middlebrooks, but they refused his request to sign the guaranties and asked to see Wiley, whom they knew. Wiley explained that the cross-signing was needed *897 because the Bank was having problems with the FDIC. The Bowens then signed the guaranties.
D. L. Bowen testified at trial that "[f]or some reason or other," he did not see the heading, "Guaranty of Payment," on the documents he signed, surmising that the heading had been covered by an attachment dealing with credit life insurance, or that the papers had been doubled over. "[Wiley] was handing them to me and he was in a hurry and all that and I didn't see the [heading] there, I didn't know  thought I was signing an agreement giving him the right to dispose of the equipment in case something happened [to me]. I didn't know I was signing [a] guaranty. . . . [H]e got me tricked into signing and I signed because I trusted him. . . . I wouldn't sign with Mr. Middlebrooks, but I would for Mr. Wiley."
"Where one who can read signs a contract without apprising himself of its contents, otherwise than by accepting representations made by the opposite party, with whom there exists no fiduciary or confidential relation, he can not defend an action based on it. . . unless it should appear that at the time he signed it some such emergency existed as would excuse his failure to read it, or that his failure to read it was brought about by some misleading artifice or device perpetrated by the opposite party, amounting to actual fraud such as would reasonably prevent him from reading it. [Cits.]" Morrison v. Roberts, 195 Ga. 45 (1) (23 SE2d 164) (1942). "Fraud which would relieve a party who can read must be fraud which prevents him from reading. [Cits.]" Ansley v. Forest Services, 135 Ga. App. 745, 748 (218 SE2d 914) (1975).
We have searched the record and found no evidence showing that D. L. Bowen was prevented from reading the documents he signed. While Bowen testified that the documents were covered up so that he could not see the words, "Guaranty of Payment," he testified repeatedly and consistently that he could have read the documents if he had so requested. Further, he stated that he could have moved any attachments covering up the documents in order to read what was beneath them, but did not do so. Even if Wiley was in a hurry to have the documents signed, there is nothing to show that this presented such an emergency as to prevent Bowen from reading the papers he signed. See Lewis v. Foy, 189 Ga. 596, 599 (6 SE2d 788) (1940); Morgan v. Denton, 28 Ga. App. 88 (110 SE 328) (1921). Nor did Bowen's desire not to cause "too much trouble" by taking the time to read the document excuse his failure to do so. Stoddard Mfg. Co. v. Adams, 122 Ga. 802, 803 (50 SE 915) (1905).
While fraud and reasonable diligence are normally questions for the jury, Maxey-Bosshardt Lumber Co. v. Maxwell, 127 Ga. App. 429, *898 431 (193 SE2d 885) (1972), absent any evidence showing D. L. Bowen was prevented from reading the contract by emergency, artifice or trick of appellant, we must hold as a matter of law that there was no fraud. See B. E. Robuck, Inc. v. Walker, 212 Ga. 621 (94 SE2d 696) (1956); Lewis v. Foy, supra; Chicago Bldg. &c. Co. v. Summerour, 101 Ga. 820, 821 (1) (29 SE 291) (1987); Robi v. Goldstein, 100 Ga. App. 606 (112 SE2d 165) (1959); Williamson v. Read Phosphate Co., 40 Ga. App. 219, 221 (2) (149 SE 175) (1929); Ward v. Colt Co., 28 Ga. App. 24 (2) (109 SE 921) (1921).
Further, there was insufficient evidence to authorize the jury to find that D. L. Bowen and Wiley shared a confidential relationship which would excuse Bowen's failure to read what he signed on the basis of Wiley's representations. That Bowen reposed trust and confidence in Wiley does not create a confidential relationship. Dover v. Burns, 186 Ga. 19, 26 (196 SE 785) (1938). "In the majority of business dealings, opposite parties have trust and confidence in each other's integrity, but there is no confidential relationship by this alone." Id. The contracts between D. L. Bowen and Wiley prior to the day the guaranties were signed were limited: Wiley had spoken once at the Bowens' church, had known the Bowens for a number of years, and had done business with them on several occasions while Wiley was employed at a tractor company. These facts "do not evidence a relationship where one party is in a position to `exercise a controlling influence over the will, conduct, and interest of another.' " Davis v. Carpenter, 247 Ga. 156, 157 (274 SE2d 567) (1981). See C. & S. Nat. Bank v. Arnold, 240 Ga. 200, 201 (240 SE2d 3) (1977); Boatman v. Citizens &c. Nat. Bank, 155 Ga. App. 848, 850 (273 SE2d 190) (1980); Limoli v. First Ga. Bank, 147 Ga. App. 755, 757-758 (250 SE2d 155) (1978).
Absent a confidential relationship or such fraud as prevented D. L. Bowen from reading the guaranty instruments he signed, appellees may not rely or act upon any misrepresentations as to the contents of those instruments. Robi, supra; Bateman v. Small, 24 Ga. App. 244, 246-247 (100 SE 573) (1919). The trial court erred in admitting parol evidence of contemporaneous statements of the parties. OCGA § 24-6-1 (Code Ann. § 38-501).
2. For the reasons discussed in Division 1 above, the trial court erred by instructing the jury on the question of a confidential relationship between D. L. Bowen and the Bank. See Davis, supra.
3. Appellant contends that the trial court erred by instructing the jury that "when a payment is made by a debtor to a creditor holding several notes given by the debtor to the creditor, the debtor has the right to direct the note to which payments should be applied, and the creditor is obligated to follow this direction." See OCGA § *899 13-4-42 (Code Ann. § 20-1006).
The evidence showed that following the voluntary liquidation of the collateral, and after realizing that his father had executed guaranties on four of his notes, Lamar Bowen directed the Bank to apply his sales proceeds to those notes first, but the Bank refused. Appellant contends that the application of such payments was controlled by a provision in the contract: "Any proceeds of any disposition of Collateral may be applied by the Holder to the payment of expenses in connection with the Collateral, including reasonable attorney's fees and legal expenses, and any balance of such proceeds may be applied by the Holder toward the payment of such of the Liabilities, and in such order of application, as the Holder may from time to time elect." (Emphasis supplied.)
Where the parties have made an agreement respecting the application of payments, it must be observed. Redfearn v. Citizens &c. Nat. Bank, 122 Ga. App. 282, 286 (2) (176 SE2d 627) (1970). OCGA § 13-4-42 (Code Ann. § 20-1006) was therefore inapplicable to the disposition of the sales proceeds and the trial court erred in instructing the jury as to its provisions.
Judgment reversed. Quillian, P. J., and Pope, J., concur.