        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                           Assigned on Briefs July 12, 2016

               KELVIN TOWNSEL v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                          No. 1400042 Chris Craft, Judge
                     ___________________________________

              No. W2015-01641-CCA-R3-PC - Filed October 21, 2016
                    ___________________________________

The Petitioner, Kelvin Townsel, appeals the denial of his petition for post-conviction
relief in which he challenged his guilty plea to second degree murder and the resulting
thirty-year sentence. On appeal, the Petitioner contends that he was denied his right to
the effective assistance of counsel and that his guilty plea was not entered knowingly and
voluntarily. We affirm the post-conviction court‟s denial of relief.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E.
GLENN and ROBERT W. WEDEMEYER, JJ., joined.

Monica A. Timmerman, Memphis, Tennessee, for the appellant, Kelvin Townsel.

Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Amy P. Weirich, District Attorney General; and Chris Lareau, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                       OPINION

                    FACTUAL AND PROCEDURAL HISTORY

       The Petitioner was indicted for first degree murder after police uncovered
evidence linking him to the scene of the homicide of the victim, Timothy Nolen. The
Petitioner pled guilty to second degree murder and, pursuant to the plea agreement,
received a sentence of thirty years in confinement to be served at one hundred percent.
                             Guilty Plea Submission Hearing

       The relevant facts underlying the Petitioner‟s conviction, as recited by the State at
the guilty plea hearing, are as follows:

       [O]n August 16, 2013, Timothy Nolen was found shot to death outside of
       his car in Shelby County, Tennessee. Police happened upon the shooting as
       it happened. Evidence was found that pointed the evidence to Mr.
       Nolen.… Mr. Townsel was found in the area[] or picked up in the area by a
       friend who … could put Mr. Townsel in the area[.] [O]ther evidence
       pointed to Mr. Townsel[,] Mr. Townsel was picked up by police[,] and Mr.
       Townsel gave a statement admitting to shooting Mr. Nolen.

        The Petitioner affirmed that he understood the plea agreement; that, by accepting
the plea, he was waiving his right to plead not guilty, his right to a jury trial, his right to
confront witnesses, his right to present a defense, his right to subpoena witnesses, and his
right to testify; that he understood the crimes with which he was charged and their
potential punishment; that he understood that he could appeal a potential conviction by
trial and could not appeal his guilty plea conviction; and that he wished to waive his right
to continue to trial and wanted instead to plead guilty. Upon finding that the Petitioner‟s
decision to plead guilty was knowing, voluntary, and intelligent, the trial court accepted
the plea.

                                 Post-Conviction Hearing

        The Petitioner testified that the trial court appointed the Shelby County Public
Defender‟s Office to represent him. The Petitioner said his original counsel discussed
both the possibility of a trial and a plea agreement for a twenty-year sentence. His
original counsel, however, withdrew upon being elected as a judge and was replaced by
trial counsel.

       The Petitioner testified that trial counsel met with him four to five times over the
course of sixteen months. He said that, although trial counsel reviewed discovery
materials with him, trial counsel did not “break [the discovery packet] down” “piece by
piece.” The Petitioner said he did not fully understand the “discovery packet [or] the
evidence that the State had against [him].” He testified that trial counsel informed him
that the State would present a witness who was at the crime scene and his own
incriminating statement at trial.

       The Petitioner maintained that he believed that he would receive a twenty-year
sentence in exchange for pleading guilty. He acknowledged that he would be required to
                                             -2-
serve one hundred percent of his sentence. He testified that he signed a judgment stating
he received a thirty-year sentence as a Range I offender. He asserted that after he
obtained the judgment while he was incarcerated, he learned that the standard range
option was “scratched out” and that the multiple offender status was circled. The record
confirms that the Petitioner‟s guilty plea judgment form appears as the Petitioner
describes regarding the altered Range classification and contains a signature above the
space designated “Defendant/Defendant‟s Counsel/Signature (optional).” At the plea
hearing, the Petitioner acknowledged he understood he was pleading guilty as a Range II
offender to thirty years‟ imprisonment.

       The Petitioner testified that at the time of his guilty plea, he was on various
medications for “post-traumatic stress syndrome,” anxiety, and bipolar disorder, which he
continues to take. He said he was not able to discuss the plea or the facts surrounding his
plea with trial counsel before signing the plea agreement.

       On cross-examination, the Petitioner clarified that he believed he was to receive a
Range I sentence of fifteen to twenty-five years. He acknowledged that he was
previously convicted of two unrelated homicides. He did not contest that he shot the
victim.

        Although trial counsel testified that he met with the Petitioner “several times,”
trial counsel could not recall how many times he met with the Petitioner before the guilty
plea was entered. He said other members of the public defender‟s office, including
investigators, had met with the Petitioner “several times.” Trial counsel also testified that
the Petitioner was informed of his right to go to trial and that the Petitioner ultimately
decided to plead guilty to second degree murder as a lesser-included offense of first
degree murder with a thirty-year sentence in light of the State‟s proof.

       Trial counsel testified that he specifically remembered reviewing the evidence
against the Petitioner with him because he had to get the Petitioner reading glasses so he
could read the discovery packet. Trial counsel believed that the Petitioner was able to
appreciate the extent of the evidence against him. Although trial counsel could not
remember whether he specifically discussed with the Petitioner any issues related to
mental health, he testified that, as with all of his clients, the Petitioner had his medical
records reviewed by a mitigation specialist. Trial counsel did not believe that a mental
health defense was a viable defense at the time of the plea. He further testified that, to his
knowledge, the Petitioner‟s mental health and prescription medications did not interfere
with the Petitioner‟s understanding of his guilty plea at the plea hearing.

       Trial counsel said that he spoke with the Petitioner about the State‟s concern
regarding their identification evidence. He told the Petitioner that the issue relating to
                                             -3-
identification caused the State to begin discussing the possibility of seeking a second
degree murder conviction or plea, rather than first degree murder. Trial counsel
explained that he told the Petitioner about the potential for a fifteen percent reduction in a
sentence for good behavior. Trial counsel testified that he discussed with the Petitioner
that a second degree murder conviction is served at one hundred percent, regardless of
range classification.

        The post-conviction court denied the Petitioner relief, finding that the Petitioner
received effective assistance of counsel and that his plea was knowingly, intelligently,
freely, and voluntarily entered.

                                        ANALYSIS

       On appeal, the Petitioner argues that he received ineffective assistance of counsel
when trial counsel failed (1) to disclose alleged exculpatory evidence to the Petitioner
and (2) to review strategies to employ using the alleged exculpatory evidence. The
Petitioner argues that due to these errors, along with “misinformation,”
“miscomprehension,” and “ignorance,” his guilty plea was not knowingly and voluntarily
entered. The State responds that the Petitioner received the effective assistance of
counsel and that the Petitioner‟s plea was voluntary and intelligent.

       To obtain post-conviction relief, the Petitioner bears the burden of proving the
allegations of fact in the petition by clear and convincing evidence. T.C.A. § 40-30-
110(f). The findings of fact made by a post-conviction court are conclusive on appeal
unless the evidence preponderates against them. Ward v. State, 315 S.W.3d 461, 465
(Tenn. 2010). Whether a guilty plea was knowing and voluntary and whether the
Petitioner received the ineffective assistance of counsel are mixed questions of fact and
law. Id.; Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006). Legal issues and mixed
issues of fact and law are reviewed de novo without any presumption of correctness.
 Vaughn, 202 S.W.3d at 115.

                         I.     Ineffective Assistance of Counsel

       The Post-Conviction Procedure Act provides relief when a conviction or sentence
is “void or voidable because of the abridgment of any right guaranteed by the
Constitution of Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103.
Both the Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee the right to counsel, and the denial of the effective
assistance of counsel is a proper ground for post-conviction relief. Vaughn, 202 S.W.3d
at 115-16. The right to counsel “encompasses the right to „reasonably effective‟
assistance, that is, assistance „within the range of competence demanded of attorneys in
                                             -4-
criminal cases.‟” Pylant v. State, 263 S.W.3d 854, 868 (Tenn. 2008) (quoting Strickland
v. Washington, 466 U.S. 668, 687 (1984)).

       To show that relief is warranted on a claim of ineffective assistance of counsel, the
Petitioner must establish both that counsel‟s performance was deficient and that the
deficiency prejudiced the defense. Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007).
Failure to show either deficiency or prejudice precludes relief. Felts v. State, 354 S.W.3d
266, 277 (Tenn. 2011). Deficiency can be shown by proving that counsel‟s acts or
omissions were so serious that they fell outside an objective standard of reasonableness
under prevailing professional norms. Vaughn, 202 S.W.3d at 116. “Upon our review of
counsel‟s performance, „we must make every effort to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel‟s conduct, and to evaluate the
conduct from the perspective of counsel at that time.‟” Finch, 226 S.W.3d at
316 (quoting Howell v. State, 185 S.W.3d 319, 326 (Tenn. 2006)).

        To show prejudice, the Petitioner must show a reasonable probability that, but for
counsel‟s errors, the results of the proceeding would have been different. Vaughn, 202
S.W.3d at 116. “„A reasonable probability is a probability sufficient to undermine
confidence in the outcome.‟” State v. Honeycutt, 54 S.W.3d 762, 768 (Tenn.
2001) (quoting Strickland, 466 U.S. at 694). When a Petitioner challenges his guilty plea
on the basis of ineffective assistance of counsel, the Petitioner must prove deficient
performance and that “„there is a reasonable probability that, but for counsel‟s errors, he
would not have pled guilty and would have insisted on going to trial.‟” Grindstaff v.
State, 297 S.W.3d 208, 216-17 (Tenn. 2009) (quoting Hill v. Lockhart, 474 U.S. 52, 59
(1985)).

        The Petitioner argues that trial counsel failed to disclose additional exculpatory
evidence to him and failed to explain the extent of the State‟s proof. The post-conviction
court found that the Petitioner did not present any proof to substantiate this claim. We
agree. The Petitioner failed to identify in his brief and during the evidentiary hearing the
exculpatory evidence with which he maintains that trial counsel failed to provide him.
The testimony of trial counsel, which was credited by the post-conviction court,
established that the Petitioner was informed of the evidence, exculpatory and inculpatory,
that was known prior to the plea agreement. Trial counsel was aware of issues with the
State‟s identification evidence, which trial counsel testified was used as leverage to have
the State consider a second degree murder plea bargain. The Petitioner has failed to show
that trial counsel acted deficiently in communicating with him regarding the case or that
he suffered any prejudice.

                                            -5-
                               II.    Voluntariness of Plea

        The Petitioner argues that because of trial counsel‟s deficiencies his plea was not
knowingly and voluntarily entered and that he would not have entered his guilty plea had
he received effective assistance of counsel. A guilty plea is only valid if it is voluntarily,
understandingly, and knowingly entered. Howell, 185 S.W.3d at 330. “In determining
whether a guilty plea was knowingly and voluntarily entered, the standard, of course, is
„whether the plea represents a voluntary and intelligent choice among the alternative
courses of action open to the defendant.‟” Grindstaff, 297 S.W.3d at 218 (quoting Jaco v.
State, 120 S.W.3d 828, 831 (Tenn. 2003)). Prior to accepting a guilty plea, the trial court
must conduct an inquiry into the defendant‟s understanding of the proceedings to ensure
the plea is knowing and voluntary. Id. at 218 & n. 11. Factors to be considered in
evaluating the voluntariness of a plea include:

       (1) the defendant‟s relative intelligence; (2) the defendant‟s familiarity with
       criminal proceedings; (3) the competency of counsel and the defendant‟s
       opportunity to confer with counsel about alternatives; (4) the advice of
       counsel and the trial court about the charges and the penalty to be imposed;
       and (5) the defendant‟s reasons for pleading guilty, including the desire to
       avoid a greater penalty in a jury trial.

Id. at 218 (quoting Howell, 185 S.W.3d at 330-31).

        The transcript of the plea hearing shows that the trial court conducted a thorough
examination of the Petitioner to ensure that the Petitioner understood the rights he was
waiving in entering the plea. The testimony of trial counsel, which was credited by the
post-conviction court, established that the Petitioner was informed regarding the
discovery packet and sentencing. Although the Petitioner testified that he thought he was
pleading to a twenty-year sentence, trial counsel testified that the Petitioner accepted a
plea agreement with a thirty-year sentence and that the Petitioner was aware that a second
degree murder conviction was served at one hundred percent, regardless of range
classification. The post-conviction court credited trial counsel‟s testimony that the
Petitioner was aware that the sentence was for thirty years‟ imprisonment. The plea
hearing transcript also reflects that the Petitioner acknowledged his understanding of the
length of the sentence. Insofar as he claims that medication or mental health issues
rendered his plea involuntary and unknowing, the post-conviction court found that neither
the Petitioner‟s understanding of the guilty plea itself nor his understanding of the guilty
plea submission hearing was affected by his use of psychiatric drugs or mental illness.

      In this case, the Petitioner testified during the guilty plea hearing voir dire
examination that he held a college degree. He was familiar with criminal proceedings,
                                             -6-
having pled guilty to two prior homicides. Trial counsel conferred with the Petitioner
throughout the case, discussed alternatives, and was prepared to proceed to trial. Trial
counsel informed the Petitioner of the potential sentences he could receive from a jury
trial conviction. The evidence against the Petitioner was a strong inducement to plead
guilty to avoid a greater penalty. Accordingly, we conclude that the plea was knowing
and voluntary.

                                    CONCLUSION

         Based on the foregoing analysis, we affirm the judgment of the post-conviction
court.

                                            ____________________________________
                                           JOHN EVERETT WILLIAMS, JUDGE

                                           -7-


                                                                                Opinions of the United
2008 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

11-20-2008

Massaquoi v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2417

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NOT-PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                      No. 07-2417

                                  TAI MASSAQUOI,

                                                     Petitioner
                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES.

                               _____________________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                             (Agency No. A97-669-440)
                    Immigration Judge: Honorable Robert P. Owens
                                        ____
                              ____________________

                                Argued October 21, 2008

      Before: SMITH, COWEN, Circuit Judges, and THOMPSON, District Judge *

                               (Filed: November 20, 2008)

Benjamin D. Yerger (Argued)
126 East Chestnut Street
Lancaster, PA 17602
      Counsel for Petitioner

      *
         The Honorable Anne E. Thompson, Senior United States District Judge for the
District Court of New Jersey, sitting by designation.

                                           1
Edward J. Duffy
Jeffrey L. Menkin (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044
       Counsel for Respondent
                              _______________________

                                      OPINION
                               _______________________

Thompson, District Judge.

       Tai Massaquoi, a native and citizen of Liberia, petitions to review a decision from

the Board of Immigration Appeals (“BIA”) ordering his removal to Liberia. The BIA, in

so doing, reversed a ruling of the Immigration Judge (“IJ”) to grant Massaquoi asylum.

Massaquoi contends that if he is removed, he will be persecuted due to his mental illness.

The Government argues Massaquoi has not sufficiently established his grounds for

asylum. This Court has jurisdiction pursuant to 8 U.S.C. § 1252. For the reasons stated

below, we will deny the Petition for Review.

       Massaquoi, 28, entered the United States on July 29, 1983. At entry, he was three

years-old. He was admitted on a visitor’s visa and never left. In 1997, Massaquoi was in

a car accident which left him with permanent brain damage, and subsequently doctors

diagnosed him with mental illness. His symptoms include auditory and visual

hallucinations, disorganized thought process, lack of concentration, and bizarre behavior.

                                             2
In June 2004, Massaquoi was convicted of indecent assault. Six weeks later, he was

convicted of theft, receiving stolen property and retail theft.

       In May 2006, the Government charged Massaquoi with removability on account of

his overstaying his visa and his crimes of moral turpitude, pursuant to his 2004

convictions. Massaquoi conceded removability, and, with the assistance of counsel,

sought asylum, withholding of removal, and relief under the Convention Against Torture

(“CAT”). Massaquoi originally based his claims for relief on his membership in a

particular social group–the severely and obviously mentally ill–as well as his religion.

But, after speaking with counsel, Massaquoi narrowed his claim to his membership in a

particular social group–namely, the mentally ill.

       In May 2006, IJ Robert P. Owens heard testimony from Massaquoi and an expert

witness, Dr. Emmanuel Dolo. Dr. Dolo testified about the scarcity of mental health care

in Liberia as well as public perceptions associated with the mentally ill, and the

conditions awaiting Massaquoi in Liberia, should Massaquoi return. Citing Massaquoi’s

condition, Dr. Dolo testified that Massaquoi would have difficulty proceeding through the

airport. Dr. Dolo testified that Massaquoi would have his clothes and money taken and

that he would act out if his medical illness were to go untreated. Dolo stated he believed

Massaquoi would face persecution from Liberians who would misconstrue his behavior

as intentional or associated with witchcraft and would shun, stone or beat Massaquoi.

       The IJ found Massaquoi and Dr. Dolo credible but ultimately denied Massaquoi’s

                                               3
application for asylum and withholding of removal. The IJ concluded that Massaquoi had

not established it was more likely than not that each of Dr. Dolo’s predictions would

come true, citing In re J-F-F-, 23 I&N Dec. 912 (A.G. 2006). Applying In re J-F-F-, the

IJ denied withholding. The IJ also denied CAT relief, reasoning that although there is

only one certified psychiatrist in Liberia and no mental health clinics or other care for the

mentally ill, Liberia’s inability to provide mental health care because of limited resources

does not constitute torture. Massaquoi appealed to the BIA.

       The BIA held that the IJ had applied the wrong burden of proof in deciding

Massaquoi’s asylum claim and adjudicating whether persecution was too speculative

under In re J-F-F-. The BIA indicated that the correct standard in deciding Massaquoi’s

claim was not whether it was more likely than not that Massaquoi would face persecution,

but rather if Massaquoi had a well-founded fear of persecution if he were removed to

Liberia. The BIA remanded the matter back to the IJ.

       On remand, Massaquoi’s claim was heard once again by IJ Owens. He determined

Dr. Dolo’s predictions “could constitute persecution” and, accordingly, that Massaquoi

would suffer persecution on account of his mental illness. IJ Owens highlighted the

stigma or taboo of mental illness in Liberia because of its association with witchcraft; he

also noted the lack of mental health care available in Liberia and Massaquoi’s lack of

family there. Accordingly, the IJ concluded Massaquoi had presented a well-founded fear

of persecution and granted asylum, but did not rule on Massaquoi’s claims regarding

                                              4
withholding of removal or his claims under CAT. The Government appealed to the BIA.

       On appeal, the BIA reversed the IJ once more, concluding Massaquoi had not

submitted any evidence that the government of Liberia had a policy of state action against

the mentally ill. The BIA concluded that the potential for persecution based on Dr.

Dolo’s predictions was too speculative to establish a well-founded fear of persecution.

The BIA vacated the IJ’s grant of asylum, determined Massaquoi had failed to meet the

standards for withholding of removal and CAT relief, and ordered Massaquoi removed to

Liberia. Massaquoi now petitions this Court for review.

       To qualify as a “refugee” who may receive asylum, an alien must establish that he

is unable or unwilling to return to his or her country of nationality “because of

persecution or a well-founded fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.” INS v. Elias-Zacarias, 502

U.S. 478, 481 (1992) (citation omitted). The persecution alleged must be at the hands of

“the government or forces the government is either unable or unwilling to control.” Gao

v. Ashcroft, 299 F.3d 266, 272 (3d. Cir. 2002) (citation omitted).

       The BIA and this Court have interpreted “persecution” to include conduct or

conditions “so severe that they constitute a threat to life or freedom.” Fatin v. INS, 12

F.3d 1233, 1240 (3d Cir. 1993). Thus, “persecution does not encompass all treatment that

our society regards as unfair, unjust, or even unlawful or unconstitutional.” Id. at 1240.

The petitioner has to do more than merely string together a collection of suppositions. In

                                              5
re J-F-F-, 23 I&N Dec. 912 (A.G. 2006).

       Here, Massaquoi contends that because he suffers from mental illness, he is a

member of a group that warrants protection. He next alleges that his removal to Liberia

would subject him to harm on account of this illness. To support his claim, Massaquoi

relies heavily on the testimony of Dr. Dolo. Dr. Dolo opined that if Massaquoi were

removed to Liberia, upon arrival at the airport, he would likely have difficulty moving

through the country. Dr. Dolo further stated Massaquoi would have his clothes and

money taken and would likely be persecuted because native Liberians would misconstrue

his mental illness for witchcraft. Finally, the lack of adequate mental health treatment

centers would provide no assistance in rehabilitating Massaquoi.

       Applying In re J-F-F- to the instant matter, this Court concludes Massaquoi has

not established his claim for asylum with the specificity and certainty required of him.

Massaquoi has merely offered Dr. Dolo, whose testimony as to the harm awaiting

Massaquoi at the airport in Liberia is tenuous, speculative and uncorroborated. Neither

Massaquoi nor Dr. Dolo have presented any solid evidence that would substantiate the

claims of future persecution, allowing a reasonable factfinder to conclude that Massaquoi

had a well-founded fear of persecution.

       Moreover, Massaquoi has not presented any evidence that suggests authorities in

Liberia are unable or unwilling to control any harm that may befall Massaquoi, as

articulated in Gao. Gao, 299 F.3d at 272. Massaquoi presented no evidence that Liberia

                                             6
has a policy of state action directed against the mentally ill. Rather, he relies on the

possible fear of future harm at the hands of private actors, not under the control of the

government, as the basis of his asylum application.

       For Massaquoi to be successful in his claim, he must meet the showing outlined in

In re J-F-F-, and establish that his fear of persecution was well-founded. The evidence in

this record does not support Massaquoi’s assertion that he has satisfied this requirement.

Accordingly, we will deny the Petition for Review.

                                              7


                                           No. 05-583

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2006 MT 260N

STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

GABRIEL ROY CHEATAM,
a/k/a GABRIEL ROY SHELL and
GABRIEL ROY SNELL,

              Defendant and Appellant.

APPEAL FROM:         The District Court of the Twelfth Judicial District,
                     In and For the County of Hill, Cause DC 04-115,
                     Honorable David G. Rice, Presiding Judge

COUNSEL OF RECORD:

              For Appellant:

                     Randy H. Randolph, Attorney at Law, Havre, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Joslyn M. Hunt,
                     Assistant Attorney General, Helena, Montana

                     Cyndee L. Peterson, County Attorney, Havre, Montana

                                                        Submitted on Briefs: July 26, 2006

                                                                   Decided: October 10, 2006

Filed:

                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and shall be reported by case title, Supreme Court cause number and result to the

State Reporter Publishing Company and West Group in the quarterly table of noncitable

cases issued by this Court.

¶2     Appellant Gabriel Roy Cheatam (Cheatam) appeals from the judgment of the

Twelfth Judicial District Court, Hill County. We affirm.

¶3     This action arises out of Cheatam’s driving under the influence (DUI) arrest on

August 14, 2004. Cheatam was also charged with threats in official matters, a felony, in

violation of § 45-7-102(1)(a)(iii), MCA, for allegedly threatening harm to Havre Police

Officer Aaron Wittmer (Officer Wittmer), with the purpose of influencing him to violate

his duties as a police officer, during the course of the DUI investigation. Cheatam pled

not guilty to the charge. On February 1, 2005, Cheatam filed a motion to dismiss,

arguing that the State had not alleged facts sufficient to charge him with the felony

violation pursuant to § 45-7-102, MCA. The District Court denied the motion. On

March 29, 2005, a jury found Cheatam guilty of the offense of threats in official matters

in violation of § 45-7-102(1)(a)(iii), MCA. The District Court sentenced Cheatam to

Montana State Prison for five years, crediting him for 154 days previously served and

                                        2
designating him a persistent felony offender. As such, he was committed to Montana

State Prison for an additional five years. Cheatam filed a timely notice of appeal.

¶4     Cheatam argues that the District Court erred in denying his motion to dismiss, that

the verdict was not supported by sufficient evidence, and that the District Court erred in

denying his proposed jury instruction regarding disorderly conduct as a lesser included

offense. We review a district court’s grant or denial of a motion to dismiss de novo.

State v. Mallak, 2005 MT 49, ¶ 13, 326 Mont. 165, ¶ 13, 109 P.3d 209, ¶ 13. “Our

standard of review is plenary, and we determine whether a district court’s conclusion is

correct.” Mallak, ¶ 13. “We review the sufficiency of evidence to support a verdict to

determine whether, after reviewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” State v. Debus, 2002 MT 307, ¶ 15, 313 Mont. 57, ¶ 15, 59

P.3d 1154, ¶ 15. We review jury instructions in a criminal case as a whole to determine

whether they fully and fairly present the law to the jury. State v. Earl, 2003 MT 158, ¶

22, 316 Mont. 263, ¶ 22, 71 P.3d 1201, ¶ 22.

¶5     It is appropriate to decide this case pursuant to our Order of February 11, 2003,

amending Section 1.3 of our 1996 Internal Operating Rules and providing for

memorandum opinions. It is manifest on the face of the briefs and the record before us

that the appeal is without merit because the findings of fact are supported by substantial

evidence, the legal issues are clearly controlled by settled Montana law which the District

Court correctly interpreted, and there was clearly no abuse of discretion by the District

                                         3
Court. From a review of the statutory elements of the crime, the offense was properly

charged, the jury was properly instructed, and disorderly conduct is not a lesser-included

offense thereof.

¶6     We affirm the judgment of the District Court.

                                                /S/ JIM RICE

We concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS

                                        4


520 F.Supp. 212 (1981)
SOUTHERN INVESTORS II and Southern Investors Management Co., Inc.
v.
COMMUTER AIRCRAFT CORPORATION.
Civ.A.No. 81-364-B.
United States District Court, M. D. Louisiana.
August 18, 1981.
*213 Phillip W. Preis, Baton Rouge, La., for plaintiffs.
*214 H. Evans, Scobee, Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, La., David A. Lee, Isicson, Steinmetz & Lee, Washington, D. C., for defendant.
POLOZOLA, District Judge.
Plaintiffs, Southern Investors II (Southern) and Southern Investors Management Company, Inc. (SIMCO), have filed this diversity action seeking damages for breach of contract by the defendant, Commuter Aircraft Corporation, (CAC). Southern is a Louisiana partnership while SIMCO is a Louisiana corporation. Defendant, CAC, is a Maryland corporation having its principal place of business in Ohio but also does business in California. Plaintiffs claim that CAC requested Paine, Webber, Jackson and Curtis, an investment banking group for CAC, to seek a lender for a working capital loan to assist CAC in the development, manufacture and marketing of a commuter aircraft. Initially, CAC had applied with the United States Department of Commerce, Economic Development Administration (EDA), for financial assistance in the form of a guarantee of the working capital loan. Southern and SIMCO, acting upon the request of the investment banking group as potential lenders for the working capital loan, then met several times with EDA and CAC representatives to negotiate the loan and guarantee agreement. The EDA thereafter agreed to provide a ninety percent (90%) guarantee of the working capital loan. On October 29, 1980, Southern made a commitment to purchase a thirty-eight million dollar ($38,000,000) loan to be made to CAC, with SIMCO as lead service lender. On November 3, 1980, CAC executed and returned the commitment agreement to the plaintiffs. One condition of the commitment agreement provided for the payment of one-half (½) of one percent (1%) of the principal loan amount commitment fee to SIMCO within ninety (90) days of the execution of the agreement. In this case plaintiffs contend the commitment fee of one hundred ninety thousand dollars ($190,000) was not paid within the ninety day period and has not been tendered as of the date of the institution of this suit.
This matter is now before the Court on the motion of the defendant, CAC, to dismiss the complaint pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure for failure to establish personal jurisdiction. In the alternative the defendant seeks to transfer this action to the United States District Court for the District of Columbia or to the United States District Court for the District of Maryland. Plaintiffs have filed an opposition to this motion. Defendant contends that it has not had sufficient contacts with the state of Louisiana for the Court to constitutionally exercise personal jurisdiction over it under the facts of this case. Defendant further contends that the only possible contacts it had with the plaintiffs were telephone conversations with the plaintiffs, both within and outside the state of Louisiana, and personal negotiations with the plaintiffs outside the state.
Plaintiffs contend that this Court has personal jurisdiction over the defendant, CAC, because the defendant transacted business in the state of Louisiana within the intent and meaning of the Louisiana Long-Arm Statute, La.R.S. 13:3201. The plaintiffs assert four grounds in support of this contention:
1) CAC sought out the plaintiffs for a loan in connection with the manufacture of a commuter aircraft, thereby availing itself of the protection and benefits of Louisiana law.
2) The commitment agreement was prepared by Southern in Louisiana and it provided for numerous obligations to be undertaken by Southern in Louisiana.
3) The commitment agreement provides for a continuing relationship between the defendant and the plaintiffs as a result of the contractual agreement.
4) Substantial services would have been provided by the plaintiffs to the defendant had the contract not been breached.
In determining whether CAC is subject to the in personam jurisdiction of this Louisiana *215 federal court, the Court must follow the two-step analysis set forth by the Fifth Circuit Court of Appeals in Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228 (5 Cir. 1973). See also Standard Fittings Co. v. Sapag, S.A., 625 F.2d 630 (5 Cir. 1980), rehearing en banc denied, 631 F.2d 732 (5 Cir. 1980), cert. denied, ___ U.S. ___, 101 S.Ct. 1981, 68 L.Ed.2d 299 (1981). Thus, the Court must first determine whether the defendant is amenable to service under the Louisiana Long-Arm Statute. Louisiana law controls this determination. Standard Fittings Co. v. Sapag S.A., supra; Jetco Electronic Industries, Inc. v. Gardiner, supra; Barrett v. Browning Arms Co., 433 F.2d 141 (5 Cir. 1970); Tetco Metal Products, Inc. v. Langham, 387 F.2d 721 (5 Cir. 1968). If the requirements of the Louisiana statute are satisfied, then federal law must be applied to determine whether assertion of jurisdiction over the defendant comports with due process. Standard Fittings Co. v. Sapag, S.A., supra; Jetco Electronic Industries, Inc. v. Gardiner, supra; Barrett v. Browning Arms Co., supra; Tetco Metal Products, Inc. v. Langham, supra; Arrowsmith v. United Press International, 320 F.2d 219 (2 Cir. 1963).
The plaintiffs seek to invoke the provisions of La.R.S. 13:3201 et seq. to obtain jurisdiction over the "person" of the defendant. The statute provides in part:
"A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident's
(a) transacting any business in this state; ..." R.S. 13:3201(a).
The comments of the Louisiana State Law Institute immediately following the text of the statute indicate that the term "transacting business" "is intended to mean a single transaction of either interstate or intrastate business, and to be as broad as the phrase `engaged in business activity' of R.S. 13:3471(1)." Adcock v. Surety Research and Investment Corp., 344 So.2d 969, 971 (La.1977); Thompson v. Great Midwest Fur Co., 395 So.2d 840, 843 (La.App. 1 Cir. 1981).
It is now clear that the intent of the Louisiana Long-Arm Statute is to permit the exercise of in personam jurisdiction to the full limits of due process in contract cases as well as tort cases. In other words, the statutory inquiry is synonymous with the due process inquiry. Standard Fittings Co. v. Sapag, S.A., supra at 638; Adcock v. Surety Research and Investment Corp., supra at 971; Drilling Engineering, Inc. v. Independent Indonesian American Pet. Co., 283 So.2d 687 (La.1973); Thompson v. Great Midwest Fur Co., supra at 843; Soileau v. Evangeline Farmers Co-op, 386 So.2d 179 (La.App. 3 Cir. 1980); Latham v. Ryan, 373 So.2d 242 (La.App. 3 Cir. 1979); Ingram Contractors, Inc. v. Rowley, 360 So.2d 593 (La.App. 4 Cir. 1978); Mayeux v. Hughes, 333 So.2d 273 (La.App. 1 Cir. 1976); Aucoin v. Hanson, 207 So.2d 834 (La.App. 3 Cir. 1968). Therefore, it is settled that if a business activity satisfies the requirements of due process, it ipso facto satisfies the "transacting business" requirements of the Louisiana Long-Arm Statute.
The Due Process Clause of the Fourteenth Amendment of the United States Constitution limits the power of this Court in exercising jurisdiction over the person of a nonresident defendant. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978).
The Fifth Circuit Court of Appeals has recently referred to a two-prong test in determining whether a nonresident defendant is subject to suit consistent with due process. Thus, in Standard Fittings Co. v. Sapag, S.A., supra:
"In Product Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir. 1974)24, [footnote omitted] this court described a two-part test for determining whether the exercise of in personam jurisdiction would deprive a defendant of due process: `First, "there must be some minimum contact with the state which results from an affirmative act of the defendant," i. e., purposeful activity. Secondly, "it must be fair and reasonable to require *216 the defendant to come into the state and defend the action."' 495 F.2d at 494. In a footnote to this two-part test, the court identified several factors which various courts have used in determining whether the exercise of personal jurisdiction over a nonresident corporation comports with due process: the quantity of contacts, the nature and quality of the contacts, the connection of the cause of action to the contacts, the interest of the forum state in providing a forum for its residents, the convenience to the parties, and the nature and character of the business. 495 F.2d at 494 n. 17.
Further explaining the first part of the two-prong test, the court in Product Promotions stated that purposeful activity of a defendant within the forum state implies that there must be some activity by the defendant and that it must `support an inference that the nonresident defendant purposefully availed himself of the benefits of conducting business in the forum.' 495 F.2d at 495. The court went on to say that `even if the defendant performs no physical act within the State, activities outside the State can provide adequate contacts if they have reasonably foreseeable consequences within the State.' 495 F.2d at 496. And finally, with respect to the purposeful activity prong of the test, the court said, `[t]he operative consideration is that the defendant's contacts with the forum were deliberate, rather than fortuitous, so that the possible need to invoke the benefits and protections of the forum's laws was reasonably foreseeable, if not foreseen, rather than a surprise.' 495 F.2d at 496.
Product Promotions refined the second prong of the test which demands that it not be `unfair or unreasonable to require the nonresident to defend the suit in the forum.' 495 F.2d at 497-98. Among the factors to be considered in evaluating this part of the test are `the interest of the state in providing a forum for the suit, the relative conveniences and inconveniences to the parties, and basic equities.' 495 F.2d at 498." 625 F.2d at 642-643.
It is clear that one occurrence or contract, whether it be in contract or tort, may satisfy the "minimum contacts" test previously characterized herein. Aucoin v. Hanson, supra. Also see Kramer Motors, Inc. v. British Leyland, Ltd., 628 F.2d 1175 (9 Cir. 1980); Marquest Medical Products, Inc. v. EMDE Corp., 496 F.Supp. 1242 (D.Colo.1980). "A foreign act having an effect in the forum may satisfy the minimum contact requirement. ... But in each case the defendant must have done some act by which it purposely avails itself of the benefits and protection of forum law." Kramer Motors, Inc. v. British Leyland, Ltd., supra at 1178, citing McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957) and Kulko v. Superior Court, supra.
The burden is on the plaintiffs to establish jurisdiction when challenged by the defendant. Familia De Boom v. Arosa Mercantil, S.A., 629 F.2d 1134 (5 Cir. 1980); Product Promotions, Inc. v. Cousteau, 495 F.2d 483 (5 Cir. 1974). The question of satisfying the "minimum contacts" criteria as required by the Louisiana Long-Arm Statute and the Due Process Clause is an issue of fact, the determination of which must rest upon the particular circumstances of each case. Adcock v. Surety Research and Investment Corp., supra; Drilling Engineering, Inc. v. Independent Indonesian American Pet. Co., supra; Thompson v. Great Midwest Fur Co. supra; Thibodeaux v. King-Wilkinson, Inc., 386 So.2d 189 (La. App. 3 Cir. 1980); Soileau v. Evangeline Farmer's Co-op, supra; March Chemical Co., Inc. v. White Cross Laboratories, Inc., 339 So.2d 398 (La.App. 1 Cir. 1976), writ refused, 341 So.2d 895 (1977). In the instant case, the plaintiffs strongly urge that "minimum contacts" exist between the defendant and the State of Louisiana because (1) the defendant entered into a commitment agreement whereby the defendant borrowed thirty-eight million dollars ($38,000,000) from Louisiana residents; (2) there is a continuing relationship created in servicing the loans; and (3) the benefit and protection of Louisiana laws due the defendant and the plaintiffs as a result of the *217 contract partly executed in Louisiana by Louisiana lenders.
On the other hand, the defendant strenuously argues that the commitment agreement was negotiated in New York and the District of Columbia, executed in the District of Columbia, and called for the defendant to receive the loan proceeds from banks in New York and/or Ohio. Further, the defendant maintains that it has had no contacts with Louisiana in any manner. The defendant has submitted the affidavit of Anita Isicson, Secretary and Corporate Counsel of CAC, which sets forth the following facts: (1) CAC has never engaged in nor qualified to do business in Louisiana; (2) CAC has not appointed an agent for service of process in Louisiana; (3) the defendant was introduced to the plaintiffs in New York, New York; (4) the commitment agreement was amended and executed in Washington, D.C.; (5) negotiations among the investment banking group, CAC, and the plaintiffs took place in Washington, D.C. or New York; and (6) the telephone conversations that did take place were both within and beyond the State of Louisiana.
It is now clear that the execution of a contract outside the state, or the finalization or consummation of a contract outside the state is not controlling nor required for a court to exercise in personam jurisdiction. Standard Fittings Co. v. Sapag, S.A., supra; Adcock v. Surety Research and Investment Corp., supra. In Adcock, there was involved a contract for the construction of a condominium in Nevada. However, the suit derived from the nonpayment of plaintiff's attorney's fees for legal services. The contract was negotiated and finalized in Louisiana. It was executed by the president of the corporation in Baker, Louisiana. The next day the contract was taken to California where it was executed by the members of the Board of Directors. The contract was then returned to Louisiana. The Court concluded that the corporation and its president had sufficient contacts to be considered as "transacting business" in Louisiana. As to the defendants who were members of the Board of Directors, the Court found that they were not subject to the jurisdiction of the Louisiana courts. The Court stated:
"Although the project was to be constructed outside of the state, the arrangement embodied a continuing transaction over a period of time in the future with a substantial amount of plaintiff's legal services being rendered in Louisiana ...
The fact that the contract was signed by the remaining defendants outside of Louisiana and therefore arguably might be considered a California contract is merely a single contract to be examined relative to the jurisdictional issue. Resolution of the jurisdictional issue depends upon the degree of contact which the nonresident defendants have with the forum state. ...
As for the remaining individual defendants, namely, Gunnell, Burton and Halford, we reach a different result. The record does not manifest any contact by these defendants with the state of Louisiana. They were never present in the state either directly or indirectly through an agent, ...
In the absence of any connection with the state, an exercise of personal jurisdiction over these three defendants would violate the due process standards set forth in International Shoe Company v. State of Washington [326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95], supra, and McGee v. International Life Insurance Company, supra." 344 So.2d at 972-973.
Thus, the issue before this Court is whether the actions of the investment banking group in seeking out the plaintiff as a lender and the subsequent loan agreement entailing numerous provisions including servicing of the loan, are sufficient to satisfy "minimum contacts" requirements.
After carefully considering the facts and circumstances of this case, the Court finds that the defendant, CAC, possessed the degree of meaningful connection with Louisiana as required by the Louisiana Long-Arm Statute and the Due Process Clause of the United States Constitution to allow the Court to have in personam jurisdiction over the defendants.
*218 The defendant contracted with the plaintiffs involving a rather large loan of thirty-eight million dollars ($38,000,000). The investment banking group, undoubtedly acting as agent for the defendant, sought out and contacted the plaintiffs in reference to this loan. Regardless of the fact that the parties never did meet in Louisiana for negotiation purposes or otherwise, the parties agreed to the terms of a contract which provides for services for the duration of the loan, and which the defendant knew would further and benefit the operation, development and manufacture of its commuter aircrafts. The Court finds that under the facts of this case it was not necessary that the agreement be negotiated or finalized in Louisiana in order for the Court to have personal jurisdiction over the defendant. The "presence" of the nonresident defendant is not controlling. The fact that the defendant's agent contacted the plaintiff in reference to obtaining a loan and the fact that the contract between the parties in reference to this loan calls for a continuing relationship throughout the life of the loan, are contacts of a "degree" which this Court finds sufficient for "minimum contacts" purposes. See Drilling Engineering, Inc. v. Independent Indonesian American Pet. Co., supra.
Finally, this Court must distinguish the present case from the line of cases involving a nonresident buyer of goods or services. See Riverland Hardwood Co. v. Craftsman Hardwood Lumber Co., 259 La. 635, 251 So.2d 45 (1971); March Chemical Co., Inc. v. White Cross Laboratories, Inc., supra; Dibert, Bancroft & Ross Co. v. Aetna-Stand. Eng. Co., 336 So.2d 327 (La.App. 1 Cir. 1976); Kalvar Corporation v. General Micrographics, 318 So.2d 71 (La.App. 4 Cir. 1975), writ denied 322 So.2d 773 (1975). These cases refused to find personal jurisdiction over the nonresident purchaser of goods or services due to the "degree of contact" or lack thereof resulting from a single transaction of this nature as opposed to a transaction "continuing in nature". As noted earlier, although a single transaction may be involved in this case, the facts and nature of the transaction involved herein satisfy the due process requirements of the United States Constitution. Therefore, the Court finds that the Court does have personal jurisdiction over the defendant under the facts and circumstances of this case.
The Court must now consider defendant's alternative request to transfer this matter to the United States District Court in Maryland or the District of Columbia. 28 U.S.C. § 1404(a) authorizes the transfer of a civil action from one federal forum in which the venue is proper to another federal forum in which venue is proper and "where it might have been brought", if the court determines that the transfer is "[f]or the convenience of parties and witnesses, in the interest of justice". 28 U.S.C. § 1404(a); Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964).
It is well settled that the court has wide discretion in determining whether to transfer a case for the convenience of parties and in the interest of justice. Weber v. Coney, 642 F.2d 91 (5 Cir. 1981); Bearden v. United States, 320 F.2d 99 (5 Cir.1963), cert. denied, 376 U.S. 922, 84 S.Ct. 679, 11 L.Ed.2d 616 (1964). Although the court does have discretion to transfer a case, the defendant must make a convincing showing of the right to have the case transferred since § 1404(a) provides for transfer "to a more convenient forum, not to a forum likely to prove equally convenient or inconvenient." Van Dusen v. Barrack, supra; American Standard Inc. v. Bendix Corp., 487 F.Supp. 254 (W.D.Mo.1980).
The most important factor in passing on a motion for transfer under § 1404(a) is the convenience of witnesses. American Standard, Inc. v. Bendix Corp., supra at 262; 15 Wright, Miller & Cooper, Federal Practice and Procedure, § 3851, l.c 264 (1976). However, the moving party must make a specific showing of the necessary witness and what their testimony will be. The affidavit submitted by the defendant has failed to meet this burden. The defendant has simply made a bold assertion that CAC and EDA personnel which are likely to be defense witnesses are located in *219 Washington, D.C. Moreover, whether a case should be transferred in the interest of justice requires several considerations including, relative case of access to sources of proof, availability of the compulsory process for attendance of unwilling witnesses, and all other practical considerations that make the trial of the case easier, expeditious and inexpensive. ROC, Inc. v. Progress Drillers, Inc., 481 F.Supp. 147 (W.D.Okl.1979). The defendant contends that the documents relevant to this litigation are in Washington, D.C. and that Washington is within 100 miles of Maryland. However, this Court agrees with the plaintiffs that the defendant has shown nothing more than that a transfer would shift any possible inconvenience from the defendant to the plaintiffs.
After reviewing the entire record in this case the Court finds that defendant's motion for a change of venue should be denied.
Therefore:
IT IS ORDERED that the defendant's motion to transfer this action to the United States District Court for the District of Maryland or to the United States District Court for the District of Columbia be and it is hereby DENIED.


	Docket No. 88663–Agenda 2–January 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 								DOROTHY WILLIAMS, Appellant.

Opinion filed June 20, 2002.

JUSTICE FREEMAN delivered the opinion of the court:

In the circuit court of Cook County a jury convicted defendant, Dorothy Williams, of the robbery and murder of Mary Harris. Defendant waived a jury for sentencing. The court found defendant eligible for the death penalty, concluded that there were no mitigating factors sufficient to preclude imposition of the death penalty, and sentenced defendant to death. This court affirmed defendant’s convictions and sentence (
People v. Williams
, 164 Ill. 2d 1 (1994)), and the United States Supreme Court denied
certiorari
 (
Williams v. Illinois
, 515 U.S. 1136, 132 L. Ed. 2d 818, 115 S. Ct. 2566 (1995)).

In June 1995, petitioner filed a petition with the aid of counsel pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122–1
et

seq
. (West 1994)). Counsel subsequently filed an amended petition and two amendments to the amended petition. The court dismissed the final version of the petition on the State’s motion. Petitioner appeals. We reverse and remand.

BACKGROUND

Conviction and Sentence

The facts underlying petitioner’s convictions and sentence were set out in this court’s opinion on direct appeal (
Williams
, 164 Ill. 2d 1), and we will not repeat them in detail here. Defendant was convicted of the murder of 97-year-old Mary Harris and the theft of the victim’s stereo. The evidence included petitioner’s signed confession to the crime. After petitioner waived a jury for sentencing, the court found petitioner death-eligible beyond a reasonable doubt, based on the murder having been motivated by robbery. The case then proceeded to the aggravation/mitigation phase.

In aggravation, the State introduced evidence that petitioner had murdered not only Harris, but had also murdered two other elderly victims and had committed various other crimes against elderly victims. Petitioner was often physically abusive of her elderly robbery victims. The State also adduced evidence of other occasions on which petitioner exhibited aggressive, violent behavior.

In mitigation it was brought to the court’s attention that petitioner had no disciplinary violations during her pretrial incarceration other than one incident in which she was verbally abusive and verbally threatening to a correctional officer. Petitioner’s mother testified that she and petitioner’s father had separated shortly before petitioner’s birth, and as a result, petitioner’s contact with her father “had been limited essentially to ‘writing’ ” before he died, four years prior to the hearing.
Williams
, 164 Ill. 2d at 26. At the time of the hearing defendant had two children. One of the fathers had died in 1978 and there was testimony that the father of the other child provided no support for his child. Petitioner’s daughter testified that petitioner had raised her two children and treated them well.

The trial court found that “ ‘the matters in aggravation so far exceed the matters in mitigation as to reduce the matters in mitigation to insignificance,’ ” and sentenced petitioner to death.
Williams
, 164 Ill. 2d at 26.

Post-Conviction

Petitioner’s counsel filed her first post-conviction petition in June 1995. Therein, petitioner alleged that she suffered from a “serious neurological deficit” during and before trial, and had not been competent to stand trial, stating specifically that she had not been competent to make a voluntary statement to the police (her confession), to cooperate with counsel, to waive a jury for sentencing, or to be sentenced. Petitioner contended that trial counsel was ineffective for failing to discover her mental deficits, and that her deficits had been masked by medication administered to her during her pretrial and trial incarceration at the Cook County jail.

This petition was supported by the affidavit of Caryn Tatelli, a social worker employed as a mitigation specialist by the Capital Resource Center. Tatelli stated that petitioner claimed to have a blood clot in her brain resulting from an auto accident at age 12. According to petitioner, the blood clot was related to a visible lump above petitioner’s left eyebrow. Tatelli confirmed the existence of the lump, and stated that it “varies in size, depending on the day *** [and] felt like a very deep blister.” Petitioner reported migraine headaches and occasionally experienced severe headaches, dizziness and nosebleeds. Tatelli reported that petitioner told her that “she has trouble understanding things which are said to her and things which she reads,” stating further that she “easily and quickly forgets what she has read, and that she read and signed documents pertaining to her trial, but that she did not understand what she was reading and signing.”

In August 1995, petitioner, through counsel, moved that petitioner be examined for fitness to proceed with the post-conviction action. Petitioner attached two affidavits to the motion. In the first, petitioner’s counsel averred that he had some doubt of petitioner’s ability to understand and communicate with him. The second affidavit was sworn out by Dr. Linda Wetzel, a psychologist. Dr. Wetzel performed several tests to establish petitioner’s level of intellectual function. She concluded that petitioner was “experiencing the long term effects of a closed head injury, incurred at age 11, which have diminished her intellectual level to the mentally retarded level. She is significantly limited in her capacity to understand or remember the explanations or instructions of her lawyer.” Dr. Wetzel recommended that petitioner be given a CAT scan and MRI in order to better quantify her head injury.

On petitioner’s motion, the court ordered an evaluation of petitioner’s fitness to participate in post-conviction proceedings. Discovery on this issue lasted for nearly three years. During this time petitioner was examined and her fitness was evaluated by several professionals, both psychologists and psychiatrists. Finally in May 1998 the court commenced the hearing on petitioner’s fitness for purposes of post-conviction proceedings.

At the May 1998 hearing the assistant State’s Attorney stated for clarification that it was the understanding of the State that the only issue to be addressed in that hearing was petitioner’s competency for purposes of post-conviction proceedings. The court noted that it “hoped we were going to go into the hearing itself if she was found competent. If not, of course, we wouldn’t.” During opening remarks the assistant State’s Attorney reiterated that

“I’d like the record to be clear that at this stage in the proceedings we are still doing the fitness hearing.

THE COURT: Yes.

[Assistant State’s Attorney]: And we have not and can not address any of the issues in the post conviction petition or file an answer or motion to dismiss until we determine whether petitioner is competent to even sit through these proceedings. So today we will start the fitness hearing for post-conviction proceedings with Dr. Mathew Markos and Dr. Ed Blumstein.”

Three witnesses testified for the State at the hearing. Dr. Mathew Markos, clinical director of Forensic Clinical Services for the Circuit Court of Cook County, and Dr. Edward Blumstein, chief psychologist for the adult division of Forensic Clinical Services for the Circuit Court of Cook County, both testified that petitioner was fit for purposes of post-conviction proceedings. Each admitted that in 1995 he had reached the opposite conclusion, but the witnesses explained that because of additional information they had received in the interim, they now believed that petitioner was fit, but was malingering–attempting to make her symptoms appear more severe than they actually were.

During the hearing Dr. Markos testified that when he examined petitioner in 1997, she was taking Pamelor, a psychotropic antidepressant. In response to a hypothetical question, Dr. Markos testified that he did not believe that a 50-milligram per-day dose of Sinequan would interfere with petitioner’s fitness to participate in post-conviction proceedings. He testified that 50 milligrams is “not a heavy dose.” He testified that the Pamelor petitioner was ingesting at the time that he examined her was chemically very similar to Sinequan, and that she was fit while receiving that medication. When the State asked Dr. Markos whether petitioner’s ability to cooperate with counsel in post-conviction proceedings would have been affected by a 150-milligram dose of Sinequan, he responded that 150 milligrams was an antidepressant level dose, and so could alleviate some symptoms of depression. However, 150 milligrams was “well within the therapeutic range,” and it would not “make any significant changes with respect to her fitness.” When counsel for petitioner attempted to inquire regarding the effects of a 200-milligram dose of Sinequan, the court sustained the State’s objection.

The court recessed the hearing, ordering the parties to obtain records of the medications petitioner was currently ingesting and ordering Dr. Markos to examine petitioner to determine whether any psychotropic medication she was ingesting could have any impact on her fitness to engage in post-conviction proceedings. Dr. Markos examined petitioner and concluded that the only psychotropic medication she was currently ingesting, a 50-milligram dose of Pamelor, would not adversely affect her fitness to continue with post-conviction proceedings. He opined that such a dosage level suggested it was being administered as a sedative, because the usual antidepressant therapeutic dosage was “much higher,” from 100 or 150 to 250 milligrams daily. Dr. Markos testified that the other medications petitioner was ingesting–insulin, naproxen, and Depakote–were nonpsychotropic. When counsel for petitioner asked if Dr. Markos had examined any records relating to “medication that [petitioner] received at the time of her trial” the court sustained the State’s objection, reminding counsel that the hearing “is now only on competency today. That is the purpose of this particular hearing now.”

The State’s other expert was Dr. Calvin Flowers, a radiologist. Dr. Flowers reviewed a CAT scan and MRI examination which had been performed on petitioner and testified that both tests returned normal results. The CAT scan was “essentially a normal examine [
sic
],” with no evidence of acute hemorrhage, no masses, and no abnormal calcification. On the MRI, Dr. Flowers did identify several “high signal or unidentified bright objects in the brain,” but he stated that such results would return in 3 or 4 out of every 10 MRI tests administered, and to him they “signify nothing great in terms of abnormalities.” Nothing in the CAT scan or the MRI was indicative of any brain injury. He testified that if a patient had received a traumatic brain injury of sufficient significance to cause cognitive dysfunction, there should be residual effects that could be observed in a CAT scan or MRI. He saw no such effects on petitioner’s tests; he also saw no evidence of any fractures, current or healed. The absence of any indications on the tests led Dr. Flowers to conclude that petitioner had not received a traumatic brain injury in the past.

Final arguments on the issue of petitioner’s mental competency to engage in post-conviction proceedings were scheduled for March 1999. During argument, petitioner’s counsel stated that petitioner had demonstrated the ability to communicate with counsel. Accordingly, petitioner argued, no further proceedings on fitness were necessary, and proceedings on the petition itself should begin. The court found petitioner fit to engage in post-conviction proceedings and allowed petitioner to amend her petition.

Petitioner filed an amended post-conviction petition in June 1999, and filed “amendment[s] to amended post-conviction petition” in June and August 1999, providing additional factual allegations. Petitioner attached two documents to her August 1999 amendment. The first was a set of photocopies of physicians’ orders and prescription orders which purported to indicate the dates upon which petitioner was prescribed various dosages of medications while incarcerated during trial. The second document was captioned “Affidavit of John Williams.” The first paragraph of the document stated that “[t]he undersigned, under penalties of perjury as provided by law, certifies that the following statements are true,” and the document was signed on the last of three pages. In the body of the document, Williams stated that he was petitioner’s brother, and averred that petitioner never graduated from grammar school or attended high school; that petitioner was illiterate; that petitioner had been using heroin and cocaine since she was 14 years old; and that petitioner was taken to a hospital in an ambulance after she was hit by a car when she was 11 years old.

In its final version, all of the claims in the petition were allegations of ineffective assistance of trial counsel: (1) for failing to discover and call to the court’s attention the fact that petitioner was mentally incompetent to stand trial; (2) for failing to raise the issue that petitioner was ingesting psychotropic medication at the time of trial and to move for a competency hearing on that basis; (3) for failing to move to suppress petitioner’s confession on the basis that petitioner was illiterate and mentally deficient, and thus could not have knowingly waived her
Miranda
 rights; and (4) for failing to raise petitioner’s mental deficiency as a mitigating factor at sentencing.

The State moved to dismiss. In August 1999, the circuit court granted the State’s motion. In a detailed ruling from the bench–spanning some 33 pages of transcript–the court explained its rejection of each of the claims raised in the final version of the petition and dismissed the petition in its entirety. At the beginning of its ruling, the court stated that in addition to the hearing on petitioner’s post-conviction competence, “[a]n evidentiary hearing was held on the allegations as to petitioner’s competency at time of trial.” At a later point during its ruling, the court restated that it “did order and conduct an extensive hearing into petitioner’s mental condition at the time of the trial and for purposes of determining her mental capacity to proceed in these post conviction proceedings as well.” In its conclusion, the court ruled:

“One, the various pleadings, the attachments thereto and the post conviction hearing before me, taken in the light of the entire record, do not make a substantial showing, indeed do not make any showing that trial counsel was ineffective.

***

Two, the evidence is that petitioner was at all times competent to stand trial. Accordingly, post conviction relief is denied.”

Following the court’s ruling, counsel for petitioner spoke, stating in part that he took

“exception to your Honor’s on [
sic
] hearing on present competency as a post conviction hearing.

I think the record reflects that there was no post conviction hearing. I think the record also reflects that when I tried to inquire at the competency hearing of Dr. Markos about the effective, [
sic
, likely should be ‘effect of’] 200 milligrams of Sinequan at the time of trial. An objection was made.

THE COURT: I sustained the objection because there was no evidence to support the question. But the record of the proceedings clearly, clearly point out that I had said as long as we were going into competency, now we were also going into competency at time of trial. The only reason I sustained the objection is, there was no evidence of any 200 grams of any medication.”

The court curtailed counsel’s further urgings of his recollection of matters.

Petitioner moved to reconsider, attaching an affidavit from Dr. James O’Donnell to the effect that his review of petitioner’s medication records indicated that petitioner was receiving 200 milligrams per day of Sinequan during the time of trial. The circuit court denied petitioner’s motion and petitioner appealed. Because petitioner is under a death sentence, her appeal lies directly to this court. 134 Ill. 2d R. 651(a).

Several arguments are raised before this court, both procedural and substantive. One of the parties’ disagreements constitutes a threshold issue, of sorts. That is, whether the circuit court acted correctly in basing its dismissal of the petition in part upon the information adduced at the hearing on fitness to participate in post-conviction proceedings. We find that reversal is necessitated on this issue, because the circuit court unacceptably blurred the lines between the hearing on fitness for purposes of post-conviction proceedings and an actual hearing on the fitness question raised in the substance of the post-conviction petition. Accordingly, we need not reach the other issues discussed by the parties.

ANALYSIS

The Post-Conviction Hearing Act (Act) (725 ILCS 5/122–1
et seq.
(West 1998)) provides a remedy to criminal defendants who claim that a substantial violation of their federal or state constitutional rights occurred at the proceedings which resulted in their convictions, when such a claim has not been, and could not have been, adjudicated previously.
People v. Griffin
, 178 Ill. 2d 65, 72-73 (1997);
People v. Brisbon
, 164 Ill. 2d 236, 242 (1995). A proceeding under the Act is not an appeal; it is a collateral attack on the prior judgment.
Brisbon
, 164 Ill. 2d at 242. Issues that were decided on direct appeal are barred by the doctrine of
res judicata
, and issues that could have been raised on direct appeal, but were not, are deemed waived.
People v. Towns
, 182 Ill. 2d 491, 502-03 (1998);
Griffin
, 178 Ill. 2d at 73.

A petitioner is not entitled to an evidentiary hearing as a matter of right. Rather, a hearing will be held only where the allegations of the petition, supported by the trial court record and accompanying affidavits, make a substantial showing of a violation of a constitutional right.
People v. Hobley
, 182 Ill. 2d 404, 427-28 (1998);
Griffin
, 178 Ill. 2d at 73. In determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and affidavits are taken as true.
Towns
, 182 Ill. 2d at 503. Whether the allegations in a post-conviction petition are sufficient to require an evidentiary hearing is reviewed
de novo
.
People v. Coleman
, 183 Ill. 2d 366, 388-89 (1998).

A defendant is presumed to be fit to stand trial, to plead, and to be sentenced. 725 ILCS 5/104–10 (West 1998). A defendant is also presumed to be fit at the time of post-conviction proceedings. See
 People v. Owens
, 139 Ill. 2d 351 (1990). When a
bona fide
 doubt of a defendant’s fitness to proceed with post-conviction proceedings is raised, the court may order a psychological evaluation of the defendant and consider the matter at an evidentiary hearing.
Owens
, 139 Ill. 2d at 365.

The issue here is not a challenge to the trial court’s initial determination that there existed a
bona fide
 doubt of petitioner’s fitness to proceed with the post-conviction action, nor the court’s ultimate determination that she was fit to proceed. Petitioner challenges neither ruling on appeal, and it would be difficult indeed for her to do so, as she requested both rulings.

Rather, petitioner urges that it was improper for the trial court to consider the evidence and testimony adduced at the post-conviction fitness hearing in dismissing the post-conviction petition on the merits. Petitioner contends the court was prohibited from considering anything other than the original trial record and the petition and any materials attached thereto. The State responds that in ruling on motions to dismiss post-conviction proceedings this court permits trial courts to consider evidence adduced at trial “or other proceedings.” The State argues moreover that there is no reason to preclude the court from considering evidence adduced in post-conviction proceedings which was so precisely relevant to the issues raised in the petition.

We need not determine whether in another case it might be appropriate for a circuit court to consider evidence adduced at a hearing on post-conviction fitness in dismissing a post-conviction petition. In the unique circumstances of this case, the court acted improperly. The court precluded post-conviction counsel from inquiry regarding the time of trial. For instance, the court specifically barred counsel from cross-examining Dr. Markos regarding any “medication that [petitioner] received at the time of her trial” on the basis that the hearing “is now only on competency today. That is the purpose of this particular hearing now.” The comments of the assistant State’s Attorney make clear that it was the understanding of the State, as well, that the hearing was limited to post-conviction competency. However, when the court ruled on the motion to dismiss it clearly operated under the misapprehension that there had been a full hearing on fitness at the time of trial. Indeed, both in its oral ruling and in the fact sheets, the court referred to the petition as having been “denied,” rather than “dismissed.” This cannot stand. The court cannot operate as if a hearing had been held when it had not. We intimate no view regarding the proper disposition of the petition; it is possible that ultimately petitioner will receive no relief. But the denial of her petition based on the trial court’s misrecollection that a full hearing had been held is unacceptable.

CONCLUSION

For the foregoing reasons, the decision of the circuit court dismissing the post-conviction petition is reversed. Under the unique circumstances of this case, where there appears to have been such confusion regarding the hearing on petitioner’s post-conviction fitness and the motion to dismiss the post-conviction petition, we feel that the appropriate course of proceedings is for the circuit court to conduct a hearing on the merits of the post-conviction petition. The court cannot dispose of a post-conviction petition as if a hearing had been held, when the petitioner has been affirmatively precluded from introducing any proof in support of the allegations of the petition. Again, as previously noted, we intimate no view on the ultimate disposition of this case. We also reiterate that we express no opinion on whether a circuit court could take into account facts adduced at a hearing on post-conviction fitness in ruling on a motion to dismiss, if all parties were informed before the hearing on post-conviction fitness that the court might so utilize any facts adduced. The cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

CHIEF JUSTICE HARRISON, concurring in part and dissenting in part:

I agree with the majority’s conclusion that the circuit court erred in dismissing Williams’ post-conviction petition. I write separately because I would go beyond the majority’s disposition and hold that Williams is entitled to immediate post-conviction relief. Regardless of the outcome of any further proceedings on remand, Williams’ convictions and sentences cannot stand. That is so because she was tried, convicted and sentenced under a system of capital punishment that is fatally defective.

Our court has now adopted a comprehensive set of new rules governing the conduct of cases in which the State is seeking the death penalty. For the reasons set forth in my dissenting opinion in
People v. Hickey
, No. 87286, slip op. at 34-37 (September 27, 2001) (Harrison, C.J., dissenting), the procedures contained in those rules are indispensable for achieving an accurate determination of innocence or guilt and are applicable to all capital cases now coming before us on review. Whether the new rules will be sufficient to place this State’s capital punishment system within the tolerances permitted by the State and federal constitutions is a question we cannot yet answer. It is clear, however, that no proceeding conducted without the benefit of those rules can be deemed reliable. As a result, remanding for further proceedings on Williams’ petition is unnecessary. Rather, we should grant Williams relief on the merits, set aside her convictions and sentences, and order that she be granted a new trial without further delay.

JUSTICE KILBRIDE, also concurring in part and dissenting in part:

I concur in part with the majority’s judgment that the circuit court erred in dismissing the post-conviction petition. Nevertheless, I agree with Chief Justice Harrison that defendant’s convictions and sentence should be set aside because the trial proceedings were not conducted in accordance with the new supreme court rules governing capital cases. As I stated in my dissents in
People v. Hickey
, No. 87286, slip op. at 39-43 (September 27, 2001) (Kilbride, J., dissenting), and
People v. Simpson
, No. 85084, slip op. at 35-38 (September 27, 2001) (Kilbride, J., dissenting), I believe that the new rules should be applied retroactively. See
People v. Caballero
, 179 Ill. 2d 205, 220-21 (1997). Thus, this cause should be remanded for a new trial conducted in compliance with the new rules.


91 F.3d 143
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Larry FOX;  Jackie Noe;  Paul Albright;  Nancy Stanton;Victor Poulsen;  Anne Woshlo;  Marie Clemente,Plaintiff-Appellees,v.VARITY CORPORATION, Successor To Massey-Ferguson, Inc.;Massey-Ferguson, Inc., Defendants-Appellants.
No. 95-1730.
United States Court of Appeals, Sixth Circuit.
July 5, 1996.

Before:  SUHRHEINRICH and SILER, Circuit Judges and CARR,* District Judge.
PER CURIAM.

1
Plaintiffs in this class action allege that defendant Varity Corporation1 violated a collective bargaining agreement by unilaterally altering the health care benefits that it provides.  Defendant appeals from the district court's preliminary injunction requiring defendant to provide the pre-alteration level of benefits.  We hold that the district court did not abuse its discretion in issuing the injunction and AFFIRM.

BACKGROUND

2
Beginning in 1964, Massey-Ferguson, Inc. provided free health care insurance to covered retired employees and other eligible individuals pursuant to a collective bargaining agreement with the United Auto Workers ("UAW").  Effective January 1, 1994, defendant altered the fees and services provided, giving rise to this litigation.  The class as certified by the district court consists, inter alia, of retired hourly employees, surviving spouses of retired employees, and certain disabled former employees.

3
The relevant language is contained in the 1980 insurance agreement ("Insurance Agreement").  Section 6.02 of the Insurance Agreement stated in pertinent part:

4
6.02.  Cost of Coverage.  Except as otherwise provided in this agreement, the company shall pay the full cost (including any increases in cost) of Benefit coverage for eligible employees, pensioners and dependents, and survivors of employees or pensioners....

5
Plaintiffs assert a vested right under the Insurance Agreement and/or certain other documents to lifetime health care benefits at the pre-1994 level.  They seek relief for breach of contract under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and § 502 of Employee Retirement and Income Security Act of 1974, 29 U.S.C. § 1132.  After several procedural maneuvers, the District Court for the Eastern District of Michigan entered a preliminary injunction requiring defendant to provide health benefits at the pre-1994 level.

ANALYSIS
I. Issuance of Injunction

6
We review the grant of a preliminary injunction for abuse of discretion.  Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1175 (6th Cir.1995).  In determining whether to issue a preliminary injunction, a district court must consider:  (1) the likelihood of success on the merits of the action;  (2) any irreparable injury to the plaintiff in the absence of an injunction;  (3) whether the grant of an injunction would serve the public interest;  and (4) the possibility that an injunction would substantially harm third parties.  Id.  Defendant contends that the district court erred in evaluating the first and second elements.

A. Success on the Merits

7
Applying the principles set forth in International Union v. Yard-Man, 716 F.2d 1476 (6th Cir.1983), cert. denied, 465 U.S. 1007 (1984), the district court determined that the Insurance Agreement was ambiguous.  After considering extrinsic evidence, the lower court found that the UAW and defendant had intended plaintiffs to receive a vested right to health insurance benefits.

8
It is clear that Yard-Man governs cases of this nature.  Golden v. Kelsey-Hayes Co., 73 F.3d 648, 656 (6th Cir.1996), petition for cert. filed, 64 U.S.L.W. 3727 (U.S. Apr. 17, 1996) (No. 95-1674).  Yard-Man holds that health insurance benefits can survive the termination of a collective bargaining agreement depending on the intent of the parties.  Yard-Man, 716 F.2d at 1479.   To determine intent, courts apply the basic rules of contract construction.  Id. at 1479-80.  Courts may also rely on what has been termed the "Yard-Man inference."   The court stated:

9
it is unlikely that [life and health insurance] benefits, which are typically understood as a form of delayed compensation or reward for past services, would be left to the contingencies of future negotiations.  The employees are presumably aware that the union owes no obligation to bargain for continued benefits for retirees....  Further, retiree benefits are in a sense "status" benefits which, as such, carry with them an inference that they continue so long as the prerequisite status is maintained.

10
Id. at 1482 (citations omitted).

11
Standing alone, the Yard-Man inference is insufficient to create a right to interminable benefits.  Id.  We emphasize that the Yard-Man inference does not shift the burden of proof onto the employer nor does it require anti-vesting language.  Golden, 73 F.3d at 656.   Rather, it is simply a tool to be used in determining the intent of the parties.  Id.

12
After review of the relevant documents and the extrinsic evidence produced thus far, we hold that plaintiffs will likely succeed on the merits.  We emphasize, however, that our opinion is specifically limited to the context of a preliminary injunction.

B. Irreparable Harm

13
The district court determined that plaintiffs would suffer irreparable harm as a result of the increased insurance costs and the consequent risk of having to forgo medical treatment.  A finding of irreparable injury is reviewable only for clear error.  International Resources, Inc. v. New York Life Ins. Co., 950 F.2d 294, 302 (6th Cir.1991), cert. denied, 504 U.S. 973 (1992).

14
Other courts have found that retired union workers are particularly sensitive to even small increases in the cost of insurance coverage.  Golden, 73 F.3d at 657;  United Steelworkers of Am. v. Textron, Inc., 836 F.2d 6, 8 (1st Cir.1987).  Plaintiffs have introduced several affidavits detailing the hardship that they would suffer if the court failed to grant an injunction.  In light of these affidavits, and given the unique position of retirees, we reject defendant's contention that there is no irreparable injury.

II. Amount of Bond

15
The district court required plaintiffs to post a security bond in the amount of $60,000.  Defendant contends that this amount is grossly inadequate in light of the fact that complying with the preliminary injunction will cost defendant an estimated $111,000 per month in 1996.  This court reviews the setting of the amount of the bond for an abuse of discretion.  USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94, 100 (6th Cir.1982).

16
The amount of the bond in this case is consistent with analogous cases.  See, e.g., Golden v. Kelsey-Hayes Co., 845 F.Supp. 410, 416-17 (E.D.Mich.1994) (requiring $100,000 bond where injunction would cost company $160,000 per month), aff'd, 73 F.3d 648 (6th Cir.1996);  Helwig v. Kelsey-Hayes, 857 F.Supp. 1168, 1181 (E.D.Mich.1994) (requiring $95,000 bond where cost to company was $150,000 per month);  Schalk v. Teledyne, Inc., 751 F.Supp. 1261, 1268-69 (W.D.Mich.1990) (requiring $50,000 bond where the defendant claimed that cost to maintain old health plan was $90,000 per month), aff'd, 948 F.2d 1290 (6th Cir.1991).  Such an amount protects defendant while appropriately accounting for plaintiffs' limited financial resources.  See 11A Charles Wright, Arthur Miller, & Mary Kane, Federal Practice and Procedure § 2954 (2d ed. 1995).  The amount of the bond was appropriate.

CONCLUSION

17
The district court did not abuse its discretion in issuing the instant preliminary injunction.  The lower court's order is AFFIRMED.

*
 The Honorable James G. Carr, United States District Judge for the Northern District of Ohio, sitting by designation

1
 Successor by merger to Massey-Ferguson, Inc