                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                         NOS.         2-08-366-CR
                                      2-08-367-CR
                                      2-08-368-CR
                                      2-08-369-CR
                                      2-08-370-CR
                                      2-08-371-CR

EX PARTE JEFFREY HOLLIDAY
KARLSON

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      FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY

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                                    OPINION

                                     ------------

                                   Introduction

      Appellant Jeffrey Holliday Karlson appeals the trial court’s denials of his

applications for writs of habeas corpus. We dismiss two of these six appeals

for want of jurisdiction; we affirm the trial court’s orders in the remaining cases.
                                Background Facts

      In 2004, the State charged appellant with six crimes, including two

assault offenses,1 two drug offenses,2 interference with an emergency call,3

and unlawful restraint.4    Appellant missed court appearances and forfeited

bonds related to these charges in March and August 2004; officers rearrested

him as a result of both of these forfeitures.

      1
       … A sworn police statement indicated that on an early morning in
January 2004, appellant fought with Melanie Meredith, his roommate, and that
during the fight, appellant pepper sprayed Meredith and struck her with a rubber
mallet. Appellant claims that he acted in self-defense. Another statement
alleged that in May 2004, appellant shoved, choked, and “body slammed” Lisa
Marie James after she refused his advances and tried to leave his motel room.
Appellant attached evidence to his habeas applications relating that he did not
assault James and that he only detained her because he suspected that she had
stolen some of his property.
      2
       … The State charged appellant with possession of a dangerous drug
(Neurontin) and possession of a controlled substance (hydrocodone) based on
the discovery of these substances after an officer stopped appellant’s vehicle
for expired registration, arrested appellant for outstanding warrants, and
observed him “shuffling his feet around on the ground.” Appellant attached an
affidavit to his habeas applications stating that the drugs were not his; he also
attached a sworn statement from a passenger in his vehicle indicating that the
drugs did not belong to appellant, but instead belonged to another passenger,
Katrina Lesperance. From the documents attached to his applications, appellant
theorized that Lesperance stated the drugs belonged to appellant because she
was being investigated by Child Protective Services and because she was under
deferred adjudication community supervision for her own felony drug offense.
      3
      … The State alleged that following the May 2004 alleged assault of
James, appellant refused to admit responding officers into his motel room.
      4
          … The unlawful restraint charge also concerned the May 2004 assault.

                                        2
      In September 2004, while in custody, appellant submitted letters to the

Denton county and district clerks 5 stating that he wanted to “fire [his] current

attorney,” Carey Piel, because Piel allegedly refused to visit appellant to discuss

his cases, discussed cases with and accepted payment from appellant’s father

without appellant’s permission, and had a “defeatist attitude” aimed at coercing

appellant to accept a plea bargain. On the same day the county clerk filed

appellant’s letter, appellant (with the assistance of Piel) entered no contest

pleas to the two drug offenses, one of the assault offenses, and the unlawful

restraint charge. The trial court found appellant guilty of the four offenses and

sentenced him to 180 days’ confinement on each offense; it suspended the

sentences for twenty-four months while it placed appellant on community

supervision.

      Based on his no contest pleas to those four charges, appellant filed pleas

in bar to prosecution of the two remaining charges—the January 2004 assault

and the interference with the May 2004 emergency call—under section 12.45

of the penal code. See Tex. Penal Code Ann. § 12.45 (Vernon 2003) (stating

that the trial court can take unadjudicated offenses into consideration during

punishment and that after doing so, with the State’s consent, prosecution of

      5
      … The county clerk filed the letter in one of appellant’s assault cases; it
does not appear in the record of the other five cases subject to this appeal.

                                        3
such offenses is barred). On September 16, 2004, the trial court, acting in

accordance with the State’s recommendation, sustained appellant’s pleas in bar

and ordered the prosecution of these two charges barred with prejudice.

      In August 2008, appellant filed applications for writs of habeas corpus in

each of his six cases, alleging that he received ineffective assistance from Piel

and that his pleas were involuntary.6 Appellant attached sworn statements to

his applications that averred to the following summarized facts.

      6
       … He therefore claimed violations of his federal and state constitutional
rights. In the four cases in which he received convictions, appellant filed the
applications pursuant to article 11.072 of the code of criminal procedure. See
Tex. Code Crim. Proc. Ann. art. 11.072 (Vernon 2005). Article 11.072
provides an opportunity for habeas corpus relief for defendants who challenge
a conviction that resulted in community supervision. Id. § 2(b)(1); see Ex parte
Cummins, 169 S.W.3d 752, 757 (Tex. App.—Fort Worth 2005, no pet.). In
the two cases in which the trial court sustained appellant’s pleas in bar to
prosecution, he filed the applications under articles 11.05, 11.09, and 11.16.
See Tex. Code Crim. Proc. Ann. arts. 11.05, 11.09, 11.16 (Vernon 2005).
Appellant’s applications differ slightly in their discussion of the charges
underlying each of the six cases as well as the attached documents related to
those charges, but Piel’s alleged wrongful conduct, as discussed herein,
commonly formed the basis for relief in each application. For this reason, we
will summarize the relevant facts alleged in each application, but we will
consider the applications together to determine whether the trial court’s denials
of the applications should be affirmed.

                                       4
Appellant’s allegations

      In early 2004, appellant retained Piel and met with him several times to

discuss appellant’s pending charges.7 During these discussions, appellant told

Piel that he was not interested in any plea bargain, and Piel told appellant that

he would provide an “aggressive legal defense,” including filing a motion to

suppress evidence related to the drug cases and using a non-prosecution

statement from Meredith to gain dismissal of one of the assault cases.

Appellant told Piel to file the motion to suppress (and agreed to pay an

increased fee to Piel for the motion); he also succeeded in persuading Meredith

to sign a non-prosecution statement and told Piel about Meredith’s willingness

to do so.

      In subsequent meetings between he and appellant, Piel discussed the

State’s plea offers and the potential that appellant could be placed on

community supervision; however, when appellant reiterated that he wanted to

contest the charges through a trial, Piel reaffirmed that he would file the motion

to suppress and engage in an aggressive defense. In May 2004, Piel informed

appellant for the first time that the district attorney’s office would not dismiss

      7
       … Appellant’s affidavit asserts that Piel advertised his specialization in
assault cases and that Piel expressed that he also had experience in defending
against drug charges.

                                        5
the assault charge against Meredith based on a non-prosecution statement;

however, Piel told appellant that the assault case was triable because of

“mistakes the police made.” Appellant asked Piel why he still had not filed the

motion to suppress, and he told Piel to either file the motion or return the

portion of Piel’s fee related to it. Piel responded by telling appellant that if he

filed the motion, it would harm appellant’s chances for a favorable plea bargain.

Appellant again stated he was not interested in pleading guilty, then Piel said

that filing the motion to suppress would be futile and that appellant would lose.

      On May 28, 2004, appellant called Piel from jail after police arrested him

for his second assault charge. Piel was disgusted to learn about appellant’s

new arrest, and when appellant explained that he had been “maced,” Piel

responded that appellant “probably deserved it.” Piel persuaded appellant’s

father to not post appellant’s bail; thus, appellant remained in confinement.

When appellant later met with Piel, Piel told him that he had to enter into a plea

bargain because there were “too many charges.”          Appellant maintained his

innocence of the charges arising from the May 28, 2004 arrest, but Piel “didn’t

care and now [appellant] knew that [he] had to get another attorney or [he]

would be convicted.”       University of North Texas legal advisor Kathryn

McCauley referred appellant to Jason Jacoby, an attorney who did not have the

“hopeless, defeatist attitude” that Piel had. However, appellant did not have

                                        6
money to pay Jacoby’s retainer fee, and appellant’s father also would not pay

Jacoby.8

      In August 2004, after appellant missed a court date and forfeited his bail

bond, his father and a detective allegedly conspired to have appellant

rearrested. Appellant’s father refused to secure a bond for appellant so that

appellant would accept a plea bargain because appellant’s father “had been

influenced against him” by Piel. On August 24, 2004, Piel visited appellant and

asked him to sign a power of attorney that assigned all of appellant’s legal

rights to his father.9 At that time, appellant and Piel had an argument in which

appellant accused Piel of being a “set up man” who only wanted to pursue plea

bargains. Appellant realized that he “had lost complete control of [Piel] over to

[his] father,” who paid Piel’s fees without appellant’s permission.

      After the August 24, 2004 meeting, appellant only saw Piel at court

appearances; Piel refused to return his calls or come to the jail for visits. Piel

      8
       … Jacoby was later appointed as appellant’s attorney on a fraudulent use
of identifying information charge that is not subject to this appeal. Appellant
contends that without his permission, Piel replaced Jacoby to represent him on
this charge and that Piel similarly replaced another attorney on a misdemeanor
marijuana charge without his permission.
      9
        … Copies of a general power of attorney that appointed appellant’s
father to handle all of appellant’s “financial and business affairs” are attached
to appellant’s habeas applications. The general power of attorney indicated
that it could be revoked by filing documents with the county clerk.

                                        7
told appellant that he could not win at trial and that he was guilty. Appellant

wanted Piel to withdraw as counsel, but Piel refused, stating that he worked

for appellant’s father, rather than appellant.    When appellant and Piel had

strategic disagreements, appellant’s father threatened to “disinherit and

disown” appellant unless he obeyed Piel.      Eventually, Piel presented a plea

bargain to appellant, and appellant accepted the plea bargain because the court

“took no action on [his] letters requesting that Piel be discharged” and because

Piel refused to pursue the motion to suppress or request a contested trial.

      Jacoby submitted a sworn statement (that appellant attached to his

habeas applications) confirming McCauley’s referral, appellant’s expressed

unhappiness and disagreements with Piel, appellant’s father’s involvement in

retaining Piel, and Piel’s substitution for Jacoby on the fraudulent use of

identifying information charge. Specifically, Jacoby stated that Piel was upset

that Jacoby had been appointed to appellant’s fraudulent use of identifying

information case and that Piel opined that appellant did not need a court

appointed lawyer.     Finally, Jacoby stated that he recalled going to visit

appellant in the jail to tell him that he was no longer appellant’s lawyer on that

case, and he remembered how disappointed appellant was that “Piel was back

on his case.”

                                        8
      Appellant’s father also submitted a statement that detailed appellant’s

disagreements with Piel and appellant’s desire to discharge him. The statement

confirmed the following:

•     appellant told his father that he was innocent of the charges brought
      against him and that he wanted to enter not guilty pleas;

•     appellant was “disenchanted” with Piel and wanted to discharge him
      because appellant was concerned that Piel was not willing to contest
      appellant’s charges;

•     appellant’s father paid Piel’s fees after appellant instructed him not to do
      so because appellant’s father believed that Piel was “well connected with
      the district attorney’s office” and could best represent appellant;

•     appellant’s father asked Piel to draft a power of attorney so that
      appellant’s father could manage appellant’s affairs, and appellant’s father
      used this power of attorney to threaten appellant for not following Piel’s
      advice by entering a plea bargain;

•     Piel consistently desired to have appellant take a plea bargain, while
      appellant consistently desired to contest the charges;

•     Piel discussed confidential information with appellant’s father; and

•     appellant entered his no contest pleas “as a result of joint pressure on
      him” caused by his father’s and Piel’s desires.

Appellant also attached other affidavits to his applications concerning the

incidents giving rise to the offenses to which he entered no contest pleas and

the defenses he would have used at trial related to those charges.

                                        9
Piel’s response

      In September 2008, the trial court ordered that a hearing on appellant’s

habeas applications be conducted by affidavit, and it required Piel to prepare a

response to appellant’s allegations. Piel’s affidavit stated that though he and

appellant had disagreements, appellant continued to want Piel to be his

attorney. Specifically, Piel’s affidavit acknowledged,

      [appellant] told me he did not want me to represent him several
      times. And then he told me he did want me to represent him. He
      would appear angry with me one minute, and then he would flip-
      flop back to wanting me to represent him again. From what I could
      tell, he treated his father the same way—wanting his help one
      moment, and not wanting it the next. Overall, there was never any
      doubt as to the fact that he wanted me to represent him and his
      father to participate in his defense.

Among other things, Piel’s affidavit also explained that

•     appellant gave consent for Piel’s substitution for Jacoby on appellant’s
      fraudulent use of identifying information case, and appellant only filled
      out indigence forms because that signaled “his way of blaming [Piel] and
      everyone else for his trouble”;

•     appellant’s September 2004 letter to the court signified his “petulant way
      of always going back and forth” on the issue of Piel’s representation;

•     appellant approved of Piel taking money from and discussing the cases
      with appellant’s father, though Piel “did not go into much detail” with
      appellant’s father about appellant’s cases;

•     contrary to the affidavits submitted by appellant, Piel never told appellant
      that he worked for his father instead of him;

•     appellant and his father both asked Piel to prepare the power of attorney;

                                       10
•     no viable argument existed that evidence of the drugs should have been
      suppressed (because appellant did not complain of any illegal search but
      only contended that he was not adequately linked to the drugs), and
      appellant did not pay Piel any money specifically earmarked for a
      suppression motion;

•     appellant’s drug cases were poor candidates for trial because (1) Piel
      believed that under cross-examination, appellant’s temper “would flair up
      and his manic, crazed personality would be revealed to the jury,” (2) the
      jury would not believe testimony from a “druggie-friend witness,” and (3)
      an officer believed he saw appellant kicking at the drugs on the ground;

•     appellant never told Piel that the drugs were not his; and

•     while appellant desired initially to plead not guilty, and expressed this
      desire in a “crazed, manic manner,” Piel did not force appellant to plead
      guilty, Piel and appellant “always reached agreement on a course of
      action,” and appellant decided to plead no contest after carefully
      considering Piel’s advice.

The trial court’s decision

      On September 26, 2008, the State filed proposed findings of fact and

conclusions of law.10 On October 6, 2008, the trial court denied appellant’s

habeas applications and adopted the findings of fact and conclusions of law

that the State had submitted. The trial court found that Piel’s affidavit was

“more credible” than the affidavits attached to appellant’s habeas applications,

and it concluded that appellant failed to demonstrate that Piel afforded

      10
        … The State made such a filing in each of the six cases, though the
proposed findings contained in each case and the documents attached to the
findings slightly differ in relation to the specific charges at issue.

                                      11
ineffective assistance or that his pleas were involuntary. Appellant objected to

the findings of fact (contending that the evidence attached to his habeas

applications contradicted Piel’s affidavit) and conclusions of law and filed his

notices of these appeals.

                                  Jurisdiction

      When a trial court lacks jurisdiction to consider a habeas application, we

also have no jurisdiction to consider the same.       See Dahesh v. State, 51

S.W.3d 300, 303 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). In two

of appellant’s cases, in which the trial court barred prosecution, appellant filed

habeas applications under articles 11.05, 11.09, and 11.16 of the code of

criminal procedure.11   See Tex. Code Crim. Proc. Ann. arts. 11.05, 11.09,

11.16. These articles respectively state,

      The Court of Criminal Appeals, the District Courts, the County
      Courts, or any Judge of said Courts, have power to issue the writ
      of habeas corpus; and it is their duty, upon proper motion, to grant
      the writ under the rules prescribed by law.

Id. art. 11.05.

      11
        … He also filed the applications under two sections of the Texas
Constitution. See Tex. Const. art. V, §§ 8, 16. These sections generally relate
to the jurisdiction of district and county courts. Id.

                                       12
      If a person is confined on a charge of misdemeanor,12 he may apply
      to the county judge of the county in which the misdemeanor is
      charged to have been committed, or if there be no county judge in
      said county, then to the county judge whose residence is nearest
      to the courthouse of the county in which the applicant is held in
      custody.

Id. art. 11.09.

      A judge of the district or county court who has knowledge that any
      person is illegally confined or restrained in his liberty within his
      district or county may, if the case be one within his jurisdiction,
      issue the writ of habeas corpus, without any motion being made for
      the same.

Id. art. 11.16.

      For a court to have jurisdiction over a habeas application in a

misdemeanor case under section 11.09, an applicant must be “confined” or

“restrained” by either an accusation or a conviction. See Ex parte Schmidt,

109 S.W.3d 480, 483 (Tex. Crim. App. 2003); Ex parte Rinkevich, 222 S.W.3d

900, 902 (Tex. App.—Dallas 2007, no pet.); Dahesh, 51 S.W.3d at 302.

Collateral consequences related to a conviction, such as exclusion from military

service or use of the conviction to enhance punishment in other cases, may

constitute confinement. Ex parte Crosley, 548 S.W.2d 409, 410 (Tex. Crim.

App. 1977); see State v. Collazo, 264 S.W.3d 121, 126 (Tex. App.—Houston

      12
      … Both of the cases in which the court barred prosecution of appellant
were misdemeanors.

                                      13
[1st Dist.] 2007, pet. struck) (noting that “the fact that [an applicant] is not

physically confined does not preclude his application or deprive the trial court

of jurisdiction”); Ex parte Davis, 748 S.W.2d 555, 558 (Tex. App.—Houston

[1st Dist.] 1988, pet. ref’d).

      We sent appellant a letter expressing our concern that because the trial

court barred prosecution against him in two of the six cases subject to this

appeal, we had no jurisdiction over his applications in those two cases. 13

Appellant filed a response to our letter, contending that though prosecution had

been barred pursuant to section 12.45 of the penal code, he was subject to

having the cases offered in “any future sentencing hearing as part of his prior

criminal history in an effort by the State to obtain a more severe sentence,

because a Plea in Bar is the equivalent in law to being found guilty of the

offense and becomes part of the defendant’s ‘criminal history.’” Section 12.45

states:

      (a) A person may, with the consent of the attorney for the state,
      admit during the sentencing hearing his guilt of one or more
      unadjudicated offenses and request the court to take each into
      account in determining sentence for the offense or offenses of
      which he stands adjudged guilty.

      13
         … We have found no cases directly considering whether a court has
jurisdiction to consider a habeas claim related to an offense in which
prosecution has been barred under section 12.45.

                                      14
      (b) Before a court may take into account an admitted offense over
      which exclusive venue lies in another county or district, the court
      must obtain permission from the prosecuting attorney with
      jurisdiction over the offense.

      (c) If a court lawfully takes into account an admitted offense,
      prosecution is barred for that offense.

Tex. Penal Code § 12.45.

      For his proposition that a conviction barred under section 12.45 may

nonetheless be used as evidence in sentencing within future cases, appellant

relies in part on Perea v. State, 870 S.W.2d 314, 318 (Tex. App.—Tyler 1994,

no pet.). In Perea, the Tyler Court of Appeals held that when a defendant’s

prosecution is barred under section 12.45 of the penal code, the barred offense

is still “part of a defendant’s prior criminal record and become[s] a judgment of

conviction.”   Id.; see also Woodard v. State, 931 S.W.2d 747, 750 (Tex.

App.—Waco 1996, no pet.).

      However, in Lopez v. State, the Court of Criminal Appeals unanimously

disapproved of the Perea decision, calling the Tyler court’s logic “faulty.” 253

S.W.3d 680, 686 (Tex. Crim. App. 2008). In Lopez, the court considered

whether an offense barred under section 12.45 could be used as impeachment

evidence under rule of evidence 609(a), which states,

      For the purpose of attacking the credibility of a witness, evidence
      that the witness has been convicted of a crime shall be admitted if
      elicited from the witness or established by public record but only if

                                       15
      the crime was a felony or involved moral turpitude, regardless of
      punishment, and the court determines that the probative value of
      admitting this evidence outweighs its prejudicial effect to a party.

Tex. R. Evid. 609(a) (emphasis added); Lopez, 253 S.W.3d at 684–85. The

court noted that a “conviction” is a “judgment or sentence that the accused is

guilty as charged.” Lopez, 253 S.W.3d at 685. The court then held that an

offense barred under section 12.45 is not a conviction; it also cast serious

doubt on whether such an offense is, as appellant asserts, part of a defendant’s

“prior criminal record”:

      “Prior criminal record” did then and does now include matters other
      than “final convictions.” Even if § 12.45 offenses were part of a
      defendant’s “prior criminal record,” that fact would not make them
      “final convictions” for the purpose of Rule 609. Moreover, this
      Court’s comment in Whalon with respect to the § 12.45 offense
      being part of the prior criminal record was mere dicta that was
      phrased not even as a positive statement, but as a question.

      Finally, we observe that the § 12.45 procedure can be
      implemented only if the State consents. If the State wishes to
      have the use of that extraneous offense as a prior conviction, it has
      another option: it can seek a conviction on the extraneous offense.

Id. at 686 (footnotes omitted); see Whalon v. State, 725 S.W.2d 181, 195

(Tex. Crim. App. 1986); see also Tex. Code Crim. Proc. Ann. art. 37.07

§ 3(a)(1) (Vernon Supp. 2008) (allowing evidence of a defendant’s “prior

criminal record” to be admitted at sentencing).

                                       16
      We agree with and are bound by the Court of Criminal Appeal’s recent

implication that offenses barred under section 12.45 are neither convictions nor

part of a defendant’s prior criminal record. See Lopez, 253 S.W.3d at 686.

We thus hold that such offenses have no sufficient collateral consequences to

comprise “confinement” or “restraint,” that such offenses can be classified

neither as an “accusation” nor a “conviction,” and that we are consequently

without jurisdiction to consider habeas applications related to such barred

offenses. See Tex. Code Crim. Proc. Ann. art. 11.09; Schmidt, 109 S.W.3d

at 483; Dahesh, 51 S.W.3d at 303. Therefore, we dismiss the two appeals in

which prosecution was barred pursuant to section 12.45, cause numbers 2-08-

366-CR and 2-08-367-CR, for want of jurisdiction. See Tex. R. App. P. 43.2(f).

We will proceed to consider the merits of the habeas appeals of the remaining

four cases.

                              Standard of Review

      Absent a clear abuse of discretion, we must affirm the trial court’s

decision on whether to grant the relief requested in a habeas corpus application.

Ex parte Bruce, 112 S.W.3d 635, 639 (Tex. App.—Fort Worth 2003, pet.

dism’d). In reviewing the trial court’s decision, we view the evidence in the

light most favorable to the ruling and accord great deference to the trial court’s

findings and conclusions. Id.; see Ex parte Amezquita, 223 S.W.3d 363, 367

                                       17
(Tex. Crim. App. 2006); Ex parte Okere, 56 S.W.3d 846, 854 (Tex. App.—Fort

Worth 2001, pet. ref’d) (explaining that in “reviewing a trial judge’s decision to

grant or deny relief on a writ of habeas corpus, we afford almost total

deference to a trial judge’s determination of the historical facts supported by

the record”). Such deference must be given even when all of the evidence is

submitted by affidavits. See Ex parte Wheeler, 203 S.W.3d 317, 325–26 (Tex.

Crim. App. 2006); Manzi v. State, 88 S.W.3d 240, 244 (Tex. Crim. App. 2002)

(holding that in reviewing the denial of a motion to suppress evidence, the

appellate court “correctly employed a deferential standard of review of the trial

court’s resolution of the historical facts from conflicting affidavits”). In a writ

of habeas corpus hearing, the burden is on the applicant to prove his factual

allegations by a preponderance of the evidence and to demonstrate that an error

contributed to his conviction or punishment. Ex parte Williams, 65 S.W.3d

656, 658 (Tex. Crim. App. 2001); Bruce, 112 S.W.3d at 639.

      To establish ineffective assistance of counsel, appellant must show by a

preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different.   Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.

                                        18
2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). In evaluating

the effectiveness of counsel under the first prong, we look to the totality of the

representation and the particular circumstances of each case. Thompson, 9

S.W.3d at 813. The issue is whether counsel’s assistance was reasonable

under all the circumstances and prevailing professional norms at the time of the

alleged error.   See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.

Review of counsel’s representation is highly deferential, and the reviewing court

indulges a strong presumption that counsel’s conduct fell within a wide range

of reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d

at 63.

      To overcome the presumption of reasonable professional assistance, “any

allegation of ineffectiveness must be firmly founded in the record, and the

record must affirmatively demonstrate the alleged ineffectiveness.” Id. (quoting

Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate court to

simply infer ineffective assistance based upon unclear portions of the record.

Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair and reliable trial.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, appellant

                                       19
must show there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

Id. at 694, 104 S. Ct. at 2068.       A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Id. The ultimate focus of

our inquiry must be on the fundamental fairness of the proceeding in which the

result is being challenged. Id. at 697, 104 S. Ct. at 2070. To prevail in a

habeas proceeding, the applicant must establish both elements of the Strickland

test by a preponderance of the evidence. See Okere, 56 S.W.3d at 856.

      No contest pleas must be made freely and voluntarily. See Tex. Code

Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2008). A defendant’s plea is not

voluntary when it results from ineffective assistance of counsel.        Ex parte

Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980). The test for determining

the validity of a plea is whether the plea represents a voluntary and intelligent

choice among alternative courses of action open to the defendant.          Hill v.

Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369 (1985).           As explained in

Kniatt v. State, a plea,

      to be consistent with due process of law, must be entered
      knowingly, intelligently, and voluntarily. To be “voluntary,” a guilty
      plea must be the expression of the defendant’s own free will and
      must not be induced by threats, misrepresentations, or improper
      promises. A defendant’s sworn representation that his guilty plea
      is voluntary “constitute[s] a formidable barrier in any subsequent
      collateral proceedings.” An applicant seeking habeas corpus relief

                                       20
      on the basis of an involuntary guilty plea must prove his claim by
      a preponderance of the evidence. An applicant’s delay in seeking
      habeas corpus relief may prejudice the credibility of his claim.

206 S.W.3d 657, 664 (Tex. Crim. App.) (citations omitted), cert. denied, 549

U.S. 1052 (2006). When a defendant challenges the voluntariness of a plea

based on the advice of counsel, alleging that counsel was ineffective, the

defendant has the burden to show that (1) counsel’s performance fell below a

reasonable standard of competence, and (2) the defendant would, with a

reasonable probability, have pled not guilty and insisted on going to trial had

counsel not committed the alleged errors. Ex parte Moody, 991 S.W.2d 856,

857–58 (Tex. Crim. App. 1999).

                                    Analysis

      Appellant contends that the evidence attached to his habeas applications,

as related above, demonstrates that Piel’s assistance in advising him to enter

his no contest pleas was so deficient that it was legally ineffective and that his

pleas were therefore involuntary.      Specifically, appellant asserts that he

persistently informed Piel that he wanted to plead not guilty to each of his

charges, informed him of his desire for a jury trial, informed him of his desire

to attempt to suppress evidence, instructed him not to accept fees from his

father, and eventually informed him that he did not want his representation, but

that Piel induced him to enter pleas of no contest (through a lack of other

                                       21
options caused by Piel’s alleged inaction in preparing a legal or factual defense

and through Piel’s preference of appellant’s father’s desires over appellant’s

own desires).

      If these allegations were true, appellant’s claims would likely have merit.

However, Piel’s affidavit provided the trial court with evidence either rebutting

or explaining each of these allegations. Particularly, Piel’s affidavit furnished

the trial court a basis to conclude that though appellant vacillated on whether

he wanted Piel’s representation and though he wrote a letter expressing his

desire to fire Piel shortly before entering his plea bargain, appellant accepted

Piel’s representation and carefully listened to and agreed with Piel’s strategic

reasoning 14 at the time he entered his pleas, thus making an intelligent choice

among the alternative courses of action.15 Hill, 474 U.S. at 56, 106 S. Ct. at

      14
        … Piel opined, “[appellant] would not have been a believable witness,
and based on the police reports, my experience, and [appellant’s] demeanor, I
believed that [appellant] would have to testify to make the points that he would
want to make in a trial.” Piel further explained, “[appellant’s] testimony, in my
experience, would have been an unmitigated disaster. I knew under cross-
examination that his temper would flair up and his manic, crazed personality
would be revealed to the jury. We would lose the trial badly.”
      15
         … Piel stated, “I had numerous discussions with [appellant] about his
pleas, he knew what he was doing, I never pressured him, and he chose to
plead the way he pleaded.” Piel further related, “I always bluntly shared my
beliefs with [appellant] and, in the end, we agreed as to how he should plead.”
Finally, Piel explained, “I have no doubt that, at some point, [appellant] told me
that he wanted to go to trial,” but “when he would calm down and we would
discuss negotiating his cases with the DA for the best deal he could get,

                                       22
369. Piel’s affidavit also provided the trial court with a reason to determine

that, contrary to appellant’s affidavit and his father’s sworn statement,

appellant approved of (1) Piel’s substitution for Jacoby on appellant’s

subsequent felony case, (2) Piel’s discussion of cases with and acceptance of

payment from appellant’s father, and (3) the preparation of the power of

attorney.

      When faced with conflicting evidence 16 about the circumstances affecting

Piel’s representation and the voluntariness of appellant’s pleas, the trial court

was required to resolve the conflict and make a judgment call. See Tex. Code

Crim. Proc. Ann. art. 11.072 § 6(a) (requiring the trial court to make a decision

on a habeas application in a community supervision case within sixty days of

the state filing its answer); Hall v. State, 160 S.W.3d 24, 40 (Tex. Crim. App.

[appellant] and I always reached agreement on a course of action. I never made
him do anything.”
      16
        … While Piel’s affidavit conflicts with appellant’s affidavit and his
father’s statement, it does not in large part necessarily conflict with Jacoby’s
statement. Jacoby’s statement essentially conveyed that appellant was
unhappy with Piel and wanted to contest his charges and that Piel substituted
for him on appellant’s fraudulent use of identifying information case. Piel’s
affidavit concedes that appellant was often unhappy with him, that at some
point, appellant also told him that he wanted to contest his charges, and that
he replaced Jacoby, albeit with appellant’s consent. Also, Piel’s expression
that appellant weighed his strategic options and chose to enter his pleas
without pressure impliedly rebuts appellant’s contention that he entered his
pleas because of threats that his father would disinherit him.

                                       23
2004) (explaining that where there was conflicting evidence regarding mental

retardation, the “trial judge, who presided over the trial and the habeas

proceedings, was in the best position to evaluate the conflicting evidence”).

In doing so, it found Piel’s affidavit to be more credible than those submitted

by appellant; because we cannot conclude that the trial court abused its

discretion in this regard, we will defer to its determination. See Amezquita,

223 S.W.3d at 367; Bruce, 112 S.W.3d at 639; Okere, 56 S.W.3d at 854.

      Further, along with Piel’s affidavit, the trial court could have relied on

other documents to discredit the allegations contained in appellant’s

applications. First, appellant affirmed in writing that he made his pleas “freely

and voluntarily” and that he understood the “consequences of [his] plea[s].”

As noted above, such statements comprise a formidable barrier to a subsequent

challenge regarding the voluntariness of the pleas. See Kniatt, 206 S.W.3d at

664; Labib v. State, 239 S.W.3d 322, 332 (Tex. App.—Houston [1st Dist.]

2007, no pet.) (explaining that an “accused who attests when he enters his

plea . . . that he understands the nature of his plea and that it is voluntary has

a heavy burden . . . to show that his plea was involuntary”). Next, appellant

was properly admonished in accordance with article 26.13 of the code of

criminal procedure. See Tex. Code Crim. Proc. Ann. art. 26.13(a). Receiving

such admonishments created a prima facie showing that appellant’s plea was

                                       24
entered voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App.

1998); Jackson v. State, 139 S.W.3d 7, 14 (Tex. App.—Fort Worth 2004, pet.

ref’d). Finally, documents attached to the findings of fact and conclusions of

law adopted by the court indicated that in 2005, while entering another plea

bargain in another case with Piel’s assistance, appellant affirmed that he was

“satisfied with [Piel’s] services.”

       For all of these reasons, viewing the evidence in the light most favorable

to the trial court’s ruling and according the trial court great deference, we hold

that the trial court did not abuse its discretion by denying appellant’s habeas

applications, by ruling that Piel’s representation was not legally deficient, or by

concluding that appellant’s pleas were voluntary. See Bruce, 112 S.W.3d at

639.

                                      Conclusion

       Having determined that we lack jurisdiction to consider the appeals in

cause numbers 2-08-366-CR and 2-08-367-CR, we dismiss those appeals.

                                         25
Having also decided that the trial court did not abuse its discretion by denying

appellant’s applications for writs of habeas corpus in the remaining cases, we

affirm the trial court’s orders in those cases.

                                            TERRIE LIVINGSTON
                                            JUSTICE

PANEL: LIVINGSTON, GARDNER, and WALKER, JJ.

PUBLISH

DELIVERED: February 19, 2009

                                       26


                           UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53

           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                           Submitted December 14, 2005
                             Decided January 18, 2006

                                      Before

                          Hon. JOEL M. FLAUM, Chief Judge

                          Hon. RICHARD A. POSNER, Circuit Judge

                          Hon. TERENCE T. EVANS, Circuit Judge

No. 04-1010

UNITED STATES OF AMERICA,                      Appeal from the United States District
              Plaintiff-Appellee,              Court for the Northern District
                                               of Illinois, Eastern Division.
      v.
                                               No. 00 CR 824
CARLOS LEAON WESLEY,
           Defendant-Appellant.                Robert W. Gettleman,
                                               Judge.

                                    ORDER

   Carlos Leon Wesley was convicted of three counts of bank robbery, for which the
district court sentenced him to 57 months of imprisonment and three years of
supervised release. On September 2, 2005, we ordered a limited remand to the district
court, pursuant to United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), to
determine whether that court would have imposed the same sentence had it
understood that the guidelines were advisory. After considering the factors in 18
U.S.C. § 3553(a), the district court determined that it would have imposed the same
sentence under an advisory guidelines regime. The court stated that the sentence
imposed “appropriately accounts for the seriousness of the offenses (three bank
robberies), promotes adequate deterrence for this defendant and other would-be bank
robbers, and is reflective of defendant’s background and character.”
No. 04-1010                                                                      Page 2

   Wesley argues that this explanation is inadequate under United States v.
Cunningham, 429 F.3d 673 (7th Cir. 2005), which precludes affirming a district court’s
sentence when the record does not provide us with adequate assurance that the judge
has given meaningful consideration to the § 3553(a) factors. We agree that the judge’s
response was terse, and that a longer response would have been desirable. However,
as we stated in our recent decision United States v. Brock, —F.3d— (7th Cir. 2006),
2006 WL 39050, at *7 (7th Cir. Jan. 9, 2006), “Although it is preferable that a district
court give a thorough explanation of its consideration of [the § 3553(a)] factors in its
order on remand, this is not mandated.” We are satisfied here that the district court
adequately considered the parties’ arguments and the relevant § 3553(a) factors.

   Because the district court would have imposed the same sentence knowing that the
guidelines were advisory, and because we determine that sentence was reasonable, we
conclude that Wesley’s sentence was not the result of plain error. Accordingly, we
AFFIRM the judgment of the district court.


                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 12-2854

C ATERPILLAR F INANCIAL S ERVICES C ORPORATION,

                                            Plaintiff-Appellee,
                              v.

P EOPLES N ATIONAL B ANK, N.A.,
                                         Defendant-Appellant.

             Appeal from the United States District Court
                  for the Southern District of Illinois.
      No. 3:10-cv-00298-GPM-DGW—G. Patrick Murphy, Judge.

     A RGUED JANUARY 23, 2013—D ECIDED M ARCH 4, 2013

  Before P OSNER and W ILLIAMS, Circuit Judges, and
N ORGLE, District Judge.
  P OSNER, Circuit Judge. This diversity suit governed
by Illinois law pits the financing arm of Caterpillar, the
well-known manufacturer of tractors and a variety of
other industrial equipment (and much else besides),

   Hon. Charles R. Norgle of the Northern District of Illinois,
sitting by designation.
2                                               No. 12-2854

against Peoples National Bank, which operates in
southern Illinois and eastern Missouri. Caterpillar
accuses the bank of having converted the proceeds of
sales of collateral to which Caterpillar had a secured
claim superior to the bank’s secured claim. After a
bench trial the district judge granted judgment for
Caterpillar and awarded it damages of $2.4 million plus
prejudgment interest of a shade less than 2 percent
per annum. The bank’s appeal presents a variety of
issues of secured-transactions law.
  In 2006 a coal-mining company in southern Illinois
named S Coal borrowed some $7 million from Caterpillar
secured by the coal company’s mining equipment.
The company was also indebted to Peabody Energy
Corporation, for an earlier loan, and at Peabody’s request
S Coal transferred title to the same equipment, subject
to Caterpillar’s security interest in it, to an affiliate of
Peabody. The affiliate was a “special purpose” entity. Its
raison d’être was by holding the title to the equipment
to try to keep the equipment from being seized by
creditors (other than Peabody) of S Coal, which was
known to be in a parlous financial state.
  Two years later, in 2008, Peoples National Bank lent
S Coal $1.8 million secured by the same mining equip-
ment that secured Caterpillar’s loan. (So the same equip-
ment was now collateral for loans from Peabody, Cater-
pillar, and the bank.) The bank filed a financing statement
covering this collateral. In its pre-loan investigation
the bank discovered an earlier, recorded financing state-
ment which said that S Coal had given Peabody a
No. 12-2854                                               3

security interest in all of the coal company’s assets. The
bank wanted its security interest to have priority over
Peabody’s. It therefore negotiated an agreement with
Peabody subordinating the latter’s claim to the bank’s
claim. But the bank did not obtain a copy of a security
agreement between S Coal and Peabody for Peabody’s
loan to S Coal—and a security interest is not enforceable
unless “the debtor has authenticated a security agree-
ment that provides a description of the collateral.” UCC
§ 9-203(b)(3)(A).
  S Coal defaulted on its various loans, and the bank and
Caterpillar found themselves fighting over the same
pool of assets—S Coal’s mining equipment—that secured
their loans. The bank managed to obtain possession of
the assets and told Caterpillar it would try to sell them
for $2.5 million. Caterpillar did not object. But it
reserved the right to sue the bank unless the bank
handed over the proceeds of the sale to Caterpillar; for
Caterpillar claimed that its security interest was senior
to the bank’s. The bank sold S Coal’s equipment for
$2.5 million but kept back $1.4 million to cover what the
coal company owed it. It sent a check for the remaining
$1.1 million to Caterpillar. Caterpillar neither cashed
the check nor returned it to the bank.
  When two or more secured creditors claim conflicting
security interests in the same collateral, the creditor
who filed his financing statement earlier normally has
the senior claim. UCC § 9-322(a)(1). (Illinois law gov-
erns because S Coal, the debtor, is located there, see UCC
§ 9-301(1), but the relevant provisions of the Illinois com-
4                                              No. 12-2854

mercial code are identical to those of the Uniform Com-
mercial Code, so we won’t bother to cite the Illinois
code.) Caterpillar’s financing statement dates to 2006,
two years before the bank filed its own financing state-
ment covering the same equipment. The bank’s claim
of priority over Caterpillar derives from its dealings
with Peabody, for remember that S Coal’s indebtedness
to Peabody preceded Caterpillar’s 2006 loan. The bank
argues that in connection with that indebtedness
Peabody had obtained a security interest in all of S Coal’s
assets, that the security interest had been perfected by
a financing statement signed in 2005, and therefore
that Peabody had priority over Caterpillar’s security
interest in the same equipment. The bank further and
critically argues that Peabody transferred its secured
interest in the equipment (a secured interest senior to
Caterpillar’s) to the bank in 2008 by agreeing to subordi-
nate the loans it had made to S Coal to the bank’s
loans, enabling the bank to step into Peabody’s shoes
and obtain priority over Caterpillar.
  Had it not been for the subordination agreement, Pea-
body’s claim to a security interest in S Coal’s assets
would have had first priority by virtue of the 2005 fi-
nancing statement, Caterpillar second priority by virtue
of its 2006 financing statement, and the bank third
priority by virtue of its 2008 financing statement.
Courts disagree on how a subordination agreement
affects priorities if the agreement does not say. Some
cases, opting for what is called “complete subordina-
tion,” drop the subordinating creditor to the bottom of
the priority ladder. See, e.g., AmSouth Bank, N.A. v. J & D
No. 12-2854                                                5

Financial Corp., 679 So.2d 695 (Ala. 1996) (per curiam).
That would make the order of priority in this case Cater-
pillar, bank, Peabody. But that would benefit a nonparty
to the subordination agreement (Caterpillar)—and why
would the parties to the subordination agreement, who
did not include Caterpillar, want to do that?
   The majority approach to subordination agreements,
which goes by the name “partial subordination,” simply
swaps the priorities of the parties to the subordination
agreement—a swap that would make the order in this
case the bank, Caterpillar, Peabody—thus leaving non-
parties unaffected by it. See, e.g., In re Batterton, No. 00-
80181, 2001 WL 34076431 (Bankr. C.D. Ill. Apr. 5, 2001)
(Illinois law); Duraflex Sales & Service Corp. v. W.H.E.
Mechanical Contractors, 110 F.3d 927, 935 (2d Cir. 1997);
ITT Diversified Credit Corp. v. First City Capital Corp., 737
S.W.2d 803, 804 (Tex. 1987); 2 Grant Gilmore, Security
Interests in Personal Property § 39.1, pp. 1020-21 (1965);
George A. Nation III, “Circuitry of Liens Arising from
Subordination Agreements: Comforting Unanimity No
More,” 83 B.U. L. Rev. 591, 597-603 (2003); 1 Barkley
Clark & Barbara Clark, The Law of Secured Transactions
Under the Uniform Commercial Code ¶ 3.10[2], p. 3-76 (3d
ed. 2012). The bank would prefer “partial subordina-
tion” because that would put it ahead of Caterpillar,
and we can’t think why Peabody would have insisted
on complete subordination, had it been consulted on the
matter. It wanted the bank’s loan to go through, as that
would bolster S Coal, which was Peabody’s debtor. And
in either case—whether subordination was partial or
complete—Peabody would be in last place.
6                                               No. 12-2854

  Caterpillar was not consulted about whether subor-
dination of Peabody to the bank would be partial or
complete. It didn’t have to be. Under complete subordina-
tion, it would benefit; the priority of its security
interest would rise from second to first. Under partial
subordination, no matter how large the bank’s loan Cater-
pillar’s security interest would be unaffected. The “par-
tial” in “partial subordination” denotes the fact that
the parties to a subordination agreement swap places in
the priority ladder only to the extent of the smaller of
the swapping parties’ loans. If, for example, Peabody
had been owed $1 million by S Coal, the subordination
agreement would have given the bank first priority
only with respect to the first $1 million of the bank’s
$1.8 million loan. The order of priority would then
be bank ($1 million), Caterpillar ($7 million), bank
($.8 million), Peabody ($1 million). The amount subordi-
nated is limited to the amount that the creditor
having priority over the nonparty was owed before he
swapped places with a junior creditor. In the real as dis-
tinct from the hypothetical case, S Coal owed Peabody at
least $4 million, which was much more than the bank’s
loan, and so the bank was able to move into first place
for its entire loan without hurting Caterpillar.
  But this conclusion reckons without Caterpillar’s argu-
ment that the security interest it acquired in S Coal’s
equipment in 2006 was a purchase money security
interest: “an obligation . . . incurred as all or part of the
price of the collateral or for value given to enable the
debtor to acquire rights in or the use of the collateral if
the value is in fact so used.” UCC § 9-103(a)(2). Such
No. 12-2854                                              7

a security interest enjoys priority even over earlier
security interests in the same property, UCC § 9-324(a);
4 James J. White & Robert S. Summers, Uniform Commercial
Code § 33-4, pp. 330-40 (6th ed. 2010), such as Peabody’s,
and therefore over the priority of the bank as Peabody’s
successor. A purchase money security interest does not
encumber existing property of the debtor, but new prop-
erty. New property increases the debtor’s assets and
so reduces rather than increases the risk that the
debtor will default on its earlier debts. In re Howard,
597 F.3d 852, 857 (7th Cir. 2010). So the earlier creditors
are not harmed by the latecomer’s obtaining priority
over them in the new property.
  The argument fails in this case because the equipment
of S Coal that Caterpillar financed in 2006 was not
newly purchased equipment. S Coal had obtained it by
leases that entitled the coal company to purchase the
equipment for a nominal sum after completing specified
payments. Thus the “lessors,” though nominally owners,
were actually lenders. Caterpillar’s loan enabled S Coal
to complete the payments and thus obtain title. The
loan just replaced the financial lease. The UCC treats the
two types of financing as equivalents. UCC § 1-203(b)(4);
cf. Public Hospital of Town of Salem v. Shalala, 83 F.3d
175, 178 (7th Cir. 1996).
  It’s true that before the refinancing of the lessors’
loans by Caterpillar, the lessors had a purchase money
security interest because the leases had enabled S Coal
to acquire the equipment; “a purchase-money security
interest does not lose its status as such, even if. . .the
purchase-money obligation has been . . . refinanced.” UCC
8                                               No. 12-2854

§ 9-103(f)(3). But the lessors did not refinance their
loans. A new lender—Caterpillar—came along and re-
placed the lessors, and in such a situation the new
lender can preserve his predecessor’s priority only by
obtaining an assignment of the predecessor’s security
interest. Lewiston State Bank v. Greenline Equipment, L.L.C.,
147 P.3d 951, 955 (Utah App. 2006); see also UCC § 9-310(c);
In re Trejos, 374 B.R. 210, 215-16 (9th Cir. B.A.P. 2007).
Otherwise other creditors might not realize that the
new lender had preserved his predecessor’s prior-
ity—that another creditor had stepped into that
previous creditor’s shoes. Without an assignment the
previous creditor’s loan would appear to have been
repaid and his security interest therefore extinguished.
Caterpillar didn’t obtain an assignment of the lessors’
purchase money security interest, so it didn’t inherit as
it were the priority of that security interest.
   Another losing argument by Caterpillar relates to
the special purpose entity that Peabody formed to hold
title to its collateral, that is, to S Coal’s assets. Cater-
pillar argues that the bank could not have obtained a
security interest in those assets because they no
longer belonged to S Coal but instead to the special pur-
pose entity. But the location of title is not determina-
tive of the power to create a security interest. Title
to S Coal’s assets was, as we said, transferred to
Peabody’s special purpose entity only in order to shield
the assets from creditors of S Coal, other than Peabody
itself. The transfer of title was temporary, until S Coal
repaid Peabody. And the assets themselves, as distinct
from title to them, were not transferred: S Coal needed
No. 12-2854                                                  9

them, and continued to use them, to operate its coal-
mining business; the special purpose entity was for-
bidden to use, transfer, or encumber them unless S Coal
defaulted. And neither the creation of the special purpose
entity nor the transfer to it of title to S Coal’s assets
was disclosed publicly. “ ‘[W]here the true owner of the
property allows another to appear as the owner of or
to have full power to dispose of the property, so [that] a
third party is led into dealing with the apparent owner,
the true owner will be estopped from asserting that the
apparent owner did not have the title,” and therefore
the apparent owner will be treated as having “rights in
the collateral,” thus enabling him to create security inter-
ests in it. In re Pubs, Inc., 618 F.2d 432, 439 (7th Cir. 1980)
(Illinois law); see also Midwest Decks, Inc. v. Butler & Baretz
Acquisitions, Inc., 649 N.E.2d 511, 516 (Ill. App. 1995); In re
Standard Foundry Products, Inc., 206 B.R. 475, 479 (Bankr.
N.D. Ill. 1997).
  So far we have seen Caterpillar’s arguments for
priority over the bank falling like ninepins. But the
bank’s argument for priority encounters a greater
obstacle—in fact an insurmountable one.
  If Peabody had a security agreement with S Coal, it
hasn’t surfaced in this litigation. Peabody did not
produce any such agreement in response to the bank’s
subpoena, and the bank dropped the matter; for
example it made no effort to obtain a copy from S Coal.
It is of course possible, and in fact very likely, that
Peabody had such an agreement with S Coal; its
financing statement says so. But remember that a
10                                               No. 12-2854

security interest is not enforceable unless “the debtor
has authenticated a security agreement that provides a
description of the collateral.” UCC § 9-203(b)(3)(A).
The bank can’t prove that S Coal, the debtor, did that for
Peabody. And even if there was a security agreement,
we can’t assume that the collateral it described, if it did
describe collateral, included the specific equipment that
the bank took possession of in 2009 to satisfy its loan.
  The bank invokes a “composite document theory”
as authority for substituting for the missing security
agreement two other documents: the financing statement
that recites the existence of such an agreement, and
the subordination agreement. The bank derives the com-
posite document theory from In re Numeric Corp., 485
F.2d 1328, 1331 (1st Cir. 1973), which has been followed
in Illinois and elsewhere. See Turk v. Wright & Babcock,
Ltd., 528 N.E.2d 993, 994-95 (Ill. App. 1988); Helms v.
Certified Packaging Corp., 551 F.3d 675, 681-82 (7th Cir.
2008) (Illinois law); In re Bollinger Corp., 614 F.2d 924, 927
(3d Cir. 1980). We have no quarrel with the theory, or
with its application in Numeric. A financing statement
contained a description of collateral, and although there
was no separate security agreement a resolution of the
debtor’s board of directors stated that the debtor was
conveying a security interest in the assets described in
the financing statement. The resolution’s authenticity
was not in question and the court held that the
two documents—the financing statement and the resolu-
tion—between them satisfied the two purposes of sec-
tion 9-203(b): to provide an exact description of the col-
lateral and “to serve as a Statute of Frauds, preventing
No. 12-2854                                            11

the enforcement of claims based on wholly oral repre-
sentations.” 485 F.2d at 1331.
   The composite proposed by Peoples National Bank
comports with neither purpose. The financing statement
subjects “all equipment” of S Coal to the security agree-
ment but leaves unclear whether the description in the
missing security agreement was as general, or whether
instead it itemized equipment in which Peabody was
acquiring a security interest. There was only one descrip-
tion in Numeric—the one in the financing statement. If
there were two descriptions in the present case, the one
in the missing security agreement is controlling. For
as we have twice pointed out, a security interest is en-
forceable only if the debtor has authenticated a
security agreement that provides a description of the
collateral. The financing statement does not create
the security interest. It only places other creditors on
notice of it. If Peabody’s financing statement lists any
equipment not specified in the security agreement, Pea-
body had no security interest in that equipment that
it could subordinate to the bank’s security interest, thus
enlarging the bank’s interest.
  As for the Statute of Frauds function of requiring a
written security agreement, also emphasized in Numeric,
nothing in our case corresponds to the directors’ resolu-
tion in that case. Remember that the required signature
(or a directors’ resolution conceded to be an authentic
verification of the company’s execution of an agreement
to vest a creditor with a security interest) is that of
the debtor, in this case S Coal. There is no signature,
12                                             No. 12-2854

directors’ resolution, or equivalent indication of S Coal’s
decision to convey a security interest to Peabody—or
rather no contemporaneous indication. The subordina-
tion agreement itself, signed by S Coal, states that
Peabody has a security interest in S Coal’s assets.
But signed as it was three years after Peabody’s loan to
S Coal, it indicates only that S Coal believed that it
had created a security interest at that earlier time.
  So because of the missing security agreement between
S Coal and Peabody, Caterpillar’s security interest in
the equipment was prior to the bank’s, which was deriva-
tive from Peabody’s. And Caterpillar’s security interest,
with its priority, continued into the proceeds when
the bank sold the equipment. UCC §§ 9-315(a)(2),
9-322(b)(1). Caterpillar refused to cash the bank’s check
for a portion of those proceeds, fearing that doing so
would be construed as a waiver of any objection to
the bank’s claim to have a superior security interest. UCC
§ 3-311; IFC Credit Corp. v. Bulk Petroleum Corp., 403 F.3d
869, 873 (7th Cir. 2005) (Illinois law), and McMahon Food
Corp. v. Burger Dairy Co., 103 F.3d 1307, 1312-13 (7th Cir.
1996) (ditto). The fear was well founded because
written on the check was “Satisfaction of subordinate
security interest.”
  So Caterpillar was out $2.4 million of the $2.5 million
sale proceeds (the other $100,000 was for a piece of equip-
ment not covered by Caterpillar’s security interest). The
bank had no right to those proceeds. It converted
them—the counterpart in tort law to theft in the
criminal law. The damages awarded Caterpillar were
No. 12-2854                                               13

therefore proper. They would have been lower had the
$1.1 million check that the bank sent Caterpillar been a
cashier’s check rather than, as it was, a personal check.
Wang v. Marcus Brush Co., 823 N.E.2d 140, 142 (Ill. App.
2005). For a cashier’s check is the equivalent of cash,
whereas a personal check is just a promise of payment.
The bank did not, by writing the check, give Caterpillar
a dime, or give up a dime.
  The award to Caterpillar of prejudgment interest
(from the date on which having sold the equipment the
bank pocketed the proceeds, that being the date on
which the tort was committed) was also proper. Illinois
law authorizes prejudgment interest when the loss for
which the plaintiff is seeking redress is a dollar amount
known or easily calculable. National Union Fire Ins. Co.
v. American Motorists Ins. Co., Nos. 11-2500, 11-2533,
2013 WL 516283, at *4 (7th Cir. Feb. 13, 2013) (Illinois
law); Santa’s Best Craft, LLC v. St. Paul Fire & Marine
Ins. Co., 611 F.3d 339, 355 (7th Cir. 2010) (ditto). If that
condition is satisfied, the debtor can stop the running of
interest by depositing with the court the exact amount
he’ll have to pay if found liable. Residential Marketing
Group, Inc. v. Granite Investment Group, 933 F.2d 546, 549
(7th Cir. 1991); Empire Gas Corp. v. American Bakeries
Co., 840 F.2d 1333, 1342 (7th Cir. 1988). For when a
party deposits money with the court “the clerk shall
deposit that money in an interest bearing account . . . .
When a judgment is entered as to the disposition of
the principal deposited, the court shall also direct disposi-
tion of the interest accrued to the parties as it deems
appropriate.” 735 ILCS 5/2-1011(a). The deposit thus
14                                         No. 12-2854

ensures that the plaintiff will be compensated for the
time value of money should he be found to be owed
that money, so that the judgment will “make [the] de-
prived plaintiff whole.” PPM Finance, Inc. v. Norandal
USA, Inc., 392 F.3d 889, 895 (7th Cir. 2004).
                                            A FFIRMED.

                        3-4-13


       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                          JUDGMENT RENDERED JUNE 27, 2018

                                       NO. 03-17-00471-CV

                              Katherine Yager Rogers, Appellant

                                                 v.

                                     Victor J. Rogers, Appellee

          APPEAL FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY
            BEFORE JUSTICES PURYEAR, PEMBERTON, AND BOURLAND
      DISMISSED ON APPELLANT’S MOTION—OPINION BY JUSTICE PEMBERTON

This is an appeal from the final judgment signed by the trial court on April 12, 2017. Katherine

Yager Rogers has filed an unopposed motion to dismiss the appeal, and having considered the

motion, the Court agrees that the motion should be granted. Therefore, the Court grants the

motion and dismisses the appeal. The appellant shall pay all costs relating to this appeal, both in

this Court and in the court below.


5 Cal.App.4th 637 (1992)
7 Cal. Rptr.2d 37
Estate of EARL LESTER BERDROW, Deceased.
STANTON K. BERDROW, as Trustee, etc., Petitioner and Respondent,
v.
JENNIFER KOENIG et al., Objectors and Appellants.
Docket No. F016653.
Court of Appeals of California, Fifth District.
April 14, 1992.
*640 COUNSEL
Westover & Matthews and Pierre E. Auw for Objectors and Appellants.
Thomas, Snell, Jamison, Russell & Asperger, David M. Gilmore and Randolf Krbechek for Petitioner and Respondent.
OPINION
THAXTER, J.
We hold here that a will clause exercising a testamentary special power of appointment by apportioning shares between two appointees, with the apportionment of one appointee's share contingent on his survival of the decedent, is a complete exercise of the power even if that appointee does not survive. Thus, the entire appointive property passes to the other named appointee and none is distributable to the deceased appointee's issue.

FACTUAL AND PROCEDURAL BACKGROUND
Earl Lester Berdrow (Earl) died testate on September 14, 1964. His surviving widow Martha Berdrow (Martha) was granted a life estate and testamentary special power of appointment over the remainder of the trust property. The power of appointment was "special" because it could only be exercised in favor of the named appointees: Martha's son, Stanton K. Berdrow (Stanton); persons who are the issue of both Stanton and Rosa Berdrow; Martha's grandson, Stephen Berdrow Koenig (Stephen); and Stephen's issue. The decree of final distribution in Earl's probate proceedings filed in Kern County Superior Court on January 6, 1967, provides that if Martha failed to exercise the special power of appointment, the trust *641 property is to be distributed equally to Stanton and Stephen or any of their issue if either is no longer living.
Martha died testate on March 7, 1991. Martha's will dated November 1, 1985, and codicil dated April 24, 1986, were admitted to probate in Orange County Superior Court on April 18, 1991. Martha's will provides in part as follows:
"ARTICLE FOURTH [¶] I declare that I have a special power to appoint the trust estate of a trust established by the Will of my deceased husband, Earl Lester Berdrow, to or for the benefit of any or all of the following persons: STANTON K. BERDROW, the issue of both STANTON K. BERDROW AND ROSA BERDROW, STEPHEN PAUL BERDROW KOENIG, and the issue of STEPHEN PAUL BERDROW KOENIG. It is my intent to exercise that power and the property subject to that power shall be apportioned into equal shares as follows: One (1) such share for STEPHEN PAUL BERDOW KOENIG, if he survives me, and three (3) such shares for my son, STANTON K. BERDROW, if he or any of the issue of STANTON K. BERDROW and ROSA BERDROW survives me. I give each share so apportioned for a named person who survives me to such person. If my son, STANTON K. BERDROW, fails to survive me, the shares so apportioned for him shall be further apportioned into equal shares as follows: One (1) such share for my granddaughter, NANCY BERDROW, if she or any of her issue survives me, one (1) share for my grandson, JOHN STANTON BERDROW, if he or any of his issue survives me, and one (1) such share for my grandson, MATTHEW SCOTT BERDROW, if he or any of his issue survives me. I give each share so apportioned for a named grandchild of mine who survives me to such grandchild, and I give each share so apportioned for a named grandchild of mine who fails to survive me but who has issue who survive me to such issue."
Martha's will further provides in pertinent part:
"ARTICLE FIFTH [¶] I give the residue of my estate, wherever situated, including all failed and lapsed gifts, to my son, STANTON K BERDROW, if he survives me....
".... .... .... .... .... .... ....
"ARTICLE SIXTH [¶] Except as otherwise specified in this Will, I have intentionally and with full knowledge omitted to provide for my heirs and descendants who may be living at the date of my death or born thereafter. Except as specifically provided in Article Fourth, I have failed to make any provision in this Will for my grandson, STEPHEN PAUL BERDROW KOENIG...."
*642 Stephen predeceased Martha, leaving appellants Jennifer Koenig, Peter Koenig, and Amy Koenig, each a minor, as his surviving issue. Stanton survived Martha.
Stanton filed his petition in Earl's probate proceeding requesting that all the trust property be distributed to him on the grounds that Stephen failed to survive Martha and thus no share of the trust property was to be apportioned to him or his issue. Appellants, through their guardian ad litem, filed objections to the petition requesting that one-eighth of the trust property be distributed to them as alternative takers under the January 6, 1967, final decree of distribution of Earl's estate.
After a hearing, the court denied appellants' objections and granted Stanton's petition in toto. This appeal followed.

DISCUSSION
(1a) The respective positions of the parties rest on a determination of whether "Article Fourth" of Martha's will fully exercised the power of appointment granted by Earl's will. Appellants argue that Martha's failure to provide for alternative takers should Stephen not survive her constitutes a failure to exercise the power of appointment as to one-fourth of the appointive property. They further argue that the residuary clause in Martha's will does not affect the appointive property, so the "failed" one-fourth passes under the decree of distribution in Earl's estate pursuant to the provisions of Civil Code[1] section 1389.4, subdivision (b). Appellants claim they are thus entitled to one-eighth (one-half of one-fourth) of the trust estate. Respondent contends "Article Fourth" of Martha's will is a complete exercise of the power of appointment.
In its initial ruling the probate court, relying on Probate Code section 6147, subdivision (c), interpreted Martha's will as indicating an intent contrary to that of the antilapse statute. The court later signed a formal order and decree stating that because Stephen predeceased Martha, "no share of the trust estate was apportioned for him" and ordered the entire trust estate distributed to Stanton. (2) When, as here, there is no conflict in extrinsic evidence, the appellate court is not bound by the construction adopted by the trial court. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865 [44 Cal. Rptr. 767, 402 P.2d 839]; Estate of Russell (1968) 69 Cal.2d 200, 214-215 [70 Cal. Rptr. 561, 444 P.2d 353].)
The creation and exercise of powers of appointment are governed by section 1380.1 et seq. In "Article Fourth" of her will, Martha expressed an *643 intent to exercise the testamentary special power of appointment conferred upon her by Earl's will. Appellants concede this is Martha's intent. (See also §§ 1385.2; 1386.1, subd. (b).) Martha's express reference to the power evinces a conscious exercise of her power. (See Estate of Eddy (1982) 134 Cal. App.3d 292, 300 [184 Cal. Rptr. 521].)
(1b) As the donee of a special power of appointment, Martha "may appoint the whole or any part of the appointive property to any one or more of the permissible appointees and exclude others." (§ 1387.3.) She may also make the appointment subject to conditions or charges. (§§ 1387.1, subd. (a)(3); 1387.2.)
The language of "Article Fourth" acknowledges the permissible appointees under Earl's will, including Stephen and Stephen's issue. However, it also unambiguously conditions the apportionment of a share of the appointive property to Stephen on his surviving Martha. He did not. Therefore, no share of the appointive property is ever apportioned to him and Martha's will makes no provision for apportionment of any shares for Stephen's issue.
Appellants' argument assumes that on Martha's death the trust estate was to be apportioned into four equal shares, one of which was for Stephen. The argument misconstrues the will's language. The will clearly, and carefully, distinguishes between apportionment and disposition. Apportionment of a share for Stephen was expressly made contingent on his surviving Martha. Because the contingency was not met, the provision calling for apportionment of a share for Stephen never took effect. Thus, the provision by which Martha gave "each share so apportioned" did not apply to Stephen, as no "share" was apportioned to him. Instead, the trust estate was to be apportioned into three equal shares, all of which were then given to Stanton. The dispositive language taking effect on Martha's death affected 100 percent of the trust estate, not just 75 percent as appellants assume.
(3) Appellants' reliance on section 1389.4[2] is misplaced. We do not read that section as applying when apportionment of a share of the estate is expressly contingent, whether the contingency relates to the appointee's *644 survival or some other fact. The section clearly would apply if Martha had unconditionally appointed a specified share of the trust estate to Stephen, but even in that event appellants would not prevail because of the provisions of section 1389.4, subdivision (b). Martha clearly manifested an intent that some disposition of the appointive property, other than to appellants, be made. (4) "Article Fifth" of her will provides that any failed or lapsed gifts are to pass to Stanton. Since Stephen did not survive Martha, his share of the appointive property, if any, fails and passes to Stanton under the residuary clause. While appellants correctly assert that the residuary clause of a will which does not manifest an intent to exercise a power of appointment (see § 1385.2) cannot be read as an exercise of the power, Martha expresses her intent to and does exercise her power of appointment in "Article Fourth." This is sufficient. All parts of a will are to be construed in relation to each other. (Prob. Code, § 6161.) The residuary clause merely provides for distribution of any failed gifts; it is not an attempt to exercise the power of appointment.
The provision in Earl's will relied on by appellants is not applicable unless Martha fails to exercise her power of appointment. Martha's will fully exercised her power over the appointive property.
(5) The fact that Martha expressly identified alternative takers for Stanton's share defeats appellant's argument that Martha "overlooked" the need to do so for Stephen's share. Martha knew how to provide for an alternative distribution of Stephen's share had she wanted to do so. The clear import of her failure to do so is that she wanted to condition Stephen's share of the appointive property on his survivorship and exclude his issue from taking in his stead. This was within her prerogative as the donee of a special power of appointment and within the limits of the power granted her under Earl's will.
Further evidence that Martha did not "overlook" Stephen's issue is found in "Article Sixth" of her will in which she specifies her intent to limit any gift to Stephen under the will to those gifts "specifically provided in Article Fourth." Martha's intent was to limit Stephen's gift to the clear and unambiguous language of "Article Fourth"  there was no oversight. The testator's intent is paramount when interpreting a will. (Prob. Code, § 6140, subd. (a).) Earl gave Martha her power of appointment; Martha clearly wished to limit Stephen's gift.
The trial court properly rejected appellants' argument and ordered distribution to Stanton.

*645 DISPOSITION
The judgment (order disallowing objections, appointing successor trustee, terminating trust, and decree of final distribution) is affirmed. Costs to respondent.
Best, P.J., and Stone (W.A.), J., concurred.
NOTES
[1]  All statutory references are to the Civil Code unless otherwise indicated.
[2]  Section 1389.4 provides:

"(a) Except as provided in subdivision (b), if an appointment by will or by instrument effective only at the death of the donee is ineffective because of the death of an appointee before the appointment becomes effective and the appointee leaves issue surviving the donee, the surviving issue of such appointee shall take the appointed property in the same manner as the appointee would have taken had the appointee survived the donee except that the property shall pass only to persons who are permissible appointees, including those permitted under Section 1389.5....
"(b) This section does not apply if either the donor or donee manifests an intent that some other disposition of the appointive property shall be made."


                                                                                FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         December 20, 2017
                             FOR THE TENTH CIRCUIT
                                                                         Elisabeth A. Shumaker
                         _________________________________                   Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 17-6116
                                                    (D.C. No. 5:14-CR-00312-HE-1)
MAJID IRANPOUR MOBAREKEH,                                    (W.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
      _________________________________

       Claiming it lacked jurisdiction, the United States District Court for the Western

District of Oklahoma dismissed a claim for relief filed by Applicant Majid Iranpour

Mobarekeh. Because the district court properly construed Applicant’s claim as arising

under 28 U.S.C. § 2241 and because applications under § 2241 must be filed in the

prisoner’s district of confinement, we affirm.

       In 2015 Applicant pleaded guilty to one count of smuggling goods from the

*
  After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
United States, see 18 U.S.C. § 554(a), and one count of possessing opium with intent to

distribute, see 21 U.S.C. § 841(a)(1). The district court sentenced him to 51 months in

prison. In February 2017 he filed with the district court a document styled as a “Petition

For A Sentence Reduction” (the Petition). ECF No. 86 at 1, United States v. Mobarekeh,

Case No. 5:14-cr-00312-HE (W.D. Okla. Feb. 13, 2017). The Petition complained that

the federal Bureau of Prisons (BOP) had violated his Fourteenth Amendment rights by

not letting him enter the Residential Drug Abuse Program (RDAP), and the Petition

sought a sentence reduction as relief for this violation. The Petition did not state the

statutory provision under which Applicant sought relief, but asserted that the district

court “ha[d] jurisdictional authority pursuant to 28 U.S.C.S. § 3551(b) [sic] being an

authorized sentence to be imposed pursuant to 28 U.S.C.S. § 3553(a)(5) [sic].”1 Id.

       Adopting a magistrate judge’s report and recommendation, the district court

construed the Petition as a § 2241 application because it challenged the execution of

Applicant’s sentence. And it dismissed the Petition for lack of jurisdiction because “a

§ 2241 petition must be filed in the district where the petitioner is confined,” and

Applicant was serving his sentence in Texas rather than Oklahoma. R., Vol. 1 at 102.

       Applicant appealed. He concedes that one must file a § 2241 application in one’s

district of confinement, and he does not dispute that he is confined in Texas. He argues

1
 Title 28 has no § 3551(b) or § 3553(a)(5). Applicant likely means to refer to Title 18.
Title 18 has such sections, but neither is a jurisdictional grant. Section 3551(b) merely
provides that one found guilty of a federal offense “shall be sentenced, in accordance
with [18 U.S.C. § 3553].” And § 3553(a)(5) states only that in determining a sentence, a
court shall consider certain “pertinent policy statement[s]” issued by the United States
Sentencing Commission.

                                              2
instead that the Petition is not a § 2241 application. This argument is not well taken.

       As we have explained, “The principal purpose of a § 2241 application is to

challenge the execution, rather than the validity, of a federal prisoner’s sentence. If . . . a

prisoner seeks to challenge certain matters that occur at prison . . . affecting the fact or

duration of the prisoner’s custody, that claim must be raised in a § 2241 application . . . .”

Hale v. Fox, 829 F.3d 1162, 1165 n.2 (10th Cir. 2016) (citation, brackets, and internal

quotation marks omitted), cert. denied sub nom. Hale v. Julian, 137 S. Ct. 641 (2017).

And even if one styles a sentence-execution challenge as something else, we construe it

as a § 2241 application. See, e.g., United States v. Miller, 594 F.3d 1240, 1241–42 (10th

Cir. 2010) (construing filing styled as petition for writ of nunc pro tunc as § 2241

application because of type of relief sought). Applicant here sought admission into the

RDAP because those who complete it can get a sentence reduction from the BOP. See

18 U.S.C. § 3621(e)(2)(B). The decision to deny him admission into the RDAP is thus

squarely a prison matter potentially affecting the length of his sentence, and his Petition

is therefore properly construed as a § 2241 application. Because jurisdiction over § 2241

applications lies only in the district court for the district of confinement, see, e.g.,

Rumsfeld v. Padilla, 542 U.S. 426, 442–43 (2004), the district court lacked jurisdiction

over the Petition.2

2
  Applicant’s “Motion to Grant Relief”—which we construe as his opening brief on ap-
peal —contains numerous additional arguments, some of which raise issues that might be
within the jurisdiction of the district court. But these arguments were not presented to the
district court, and our “general rule [is] that we do not address arguments presented for
the first time on appeal.” United States v. Mora, 293 F.3d 1213, 1216 (10th Cir. 2002).

                                               3
We AFFIRM the district court’s dismissal of the Petition.

                                     Entered for the Court

                                     Harris L Hartz
                                     Circuit Judge

                                    4


103 F.3d 139
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Duong Trung LAM, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 95-70504, 96-70730.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 6, 1996.Decided Nov. 26, 1996.

Petition for Review of an Order of the Board of Immigration Appeals, No. Aaz-yjq-nvq.
B.I.A.
REVIEW DENIED.
Before:  GOODWIN, WIGGINS, and NOONAN, Circuit Judges.

1
MEMORANDUM*

2
Petitioner Duong Trung Lam, a citizen of Vietnam, seeks review of a decision by the Board of Immigration Appeals (BIA), ordering Lam deported under section 241(a)(4) of the Immigration and Nationality Act for having been convicted of armed robbery, a crime of moral turpitude, within five years of his entry to the United States.  The BIA upheld the immigration judge's finding that Lam had abandoned his applications for asylum and withholding of deportation.  We affirm.

BACKGROUND

3
On August 5, 1994, the IJ sent Lam a certified mail notice that he was to appear for a hearing on October 25, 1994.  The IJ subsequently postponed the hearing to November 1, 1994 and sent Lam a notice advising him of the new date.  When Lam appeared without an attorney on November 1st, the IJ asked him whether he was represented by counsel.  Lam replied that he was, but that his counsel was "busy" and had said that someone would be in court in his place.  The IJ instructed Lam to call his attorney and to report back to the court.  When Lam informed the IJ that his counsel would not appear that day, the IJ continued the hearing until November 9, 1994 for Lam to find new counsel and to prepare to present his claim for asylum and waiver of deportation.  After giving Lam written notice of the new hearing date, the IJ explained that Lam would be expected to present his case with or without an attorney on November 9th.  Lam replied that he understood.

4
On November 9, 1994, Lam returned to court with a new attorney, who requested another continuance.  Counsel explained that she had just met Lam forty-five minutes before the hearing.  The IJ denied the continuance but offered the opportunity to confer and to present evidence on Lam's claims for relief later that day.  Counsel refused to go forward with the evidentiary hearing and reiterated her request for a continuance.  The IJ again denied the request.  Finding that Lam had abandoned his claims for asylum and relief from deportation by his failure to present evidence and ruling Lam ineligible for voluntary departure because he was not persuaded of Lam's willingness to depart on his own, the IJ ordered Lam deported to Vietnam.

DISCRETION

5
Lam's principal complaint is that the IJ should have granted him a second continuance when he was unprepared to proceed on November 9th.  The decision whether to grant a continuance, however, is left to the sound discretion of the immigration judge and will not be overturned except upon a showing of clear abuse.  See Gonzalez v. INS, 82 F.3d 903, 908 (9th Cir.1996).  We hold that there was no abuse of discretion.

6
Lam had three months after receiving notice of the hearing date in which to secure an attorney and to prepare a defense.  The IJ granted one continuance after Lam appeared without counsel and clearly instructed him that he would be expected to proceed with or without an attorney at the rescheduled hearing eight days later.  Although Lam appeared with a new attorney at the November 9th hearing, he was again unprepared to present his case.  The IJ gave Lam's new counsel an opportunity to postpone the hearing until later that day, but she rejected the offer.  Although several prior delays in Lam's case were the result of INS procedures, Lam has suggested no prejudice from these delays.  He filed his request for asylum in 1987.  While Lam cannot be held responsible for all the delays in his case, he had at least seven years to prepare for a hearing.  Under these circumstances, the IJ's decision in denying Lam's request for a second continuance was not a clear abuse of his discretion.

DUE PROCESS

7
Lam further contends that the IJ denied him due process (right to present evidence and right to counsel).  These claims, however, are merely another way of asserting that the IJ abused his discretion in refusing to grant the continuance.  See De La Cruz v. INS, 951 F.2d 226, 229 n. 4 (9th Cir.1991) (noting that the petitioner's argument that he was denied his right to present evidence was "merely another way of stating that the IJ abused his discretion in failing to continue the hearing").  While it is unfortunate that Lam was unable to present the merits of his claim at several earlier points in the complicated history of this case, his failure to proceed on November 9th was not a result of constitutional or statutory violations by the IJ.

JURISDICTION

8
Petitioner also argued in his brief that the BIA lacked jurisdiction to issue its rulings in his case because he took a brief trip to Vietnam while an INS appeal was pending.  Petitioner subsequently exhausted his administrative remedies on this point.  In an order issued August 14, 1996, the BIA rejected Lam's argument.  We consolidated Lam's appeal of the BIA's August 14, 1996 order with his appeal of the Board's prior April 11, 1994 ruling.  At oral argument, however, petitioner conceded that the BIA possessed jurisdiction.  We therefore dismiss appeal No. 96-70730.

9
PETITION DENIED.

*
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


12 Cal.App.2d 430 (1936)
In the Matter of the Estate of DAVID R. SOMERVILLE, Deceased. WILLIAM P. L'HOMMEDIEU, Appellant,
v.
RAYMOND B. JOHNSON, Public Administrator, etc. Respondent.
Civ. No. 10084.
California Court of Appeals. First Appellate District. Division One.
March 13, 1936.
 Clarence De Lancey for Appellant.
 U.S. Webb, Attorney-General, J. E. Rodgers, W. L. Wollitz and Elvera E. Wollitz for Respondent.
 The Court
 Appeal from an order granting the Public Administrator of Contra Costa County letters of administration with the will annexed of the above estate, and denying the petition of the nominee of the surviving sister of decedent for letters.
 The material part of the will is as follows: "This is a Will the first & Let us hope the last one. In writing this the object is to stop any of my relatives from getting a cent of my small estate. I want it to go to my wife Frieda. I quote here especially I do not want my sister to have one dime of my money in the past twenty years she has had enough, without repaying if my wife does not get it my wish is to buy a dog for the Blind Home on Telegraph Ave. Oakland." *432
 Decedent's wife predeceased him, and there was left surviving a sister, Anne C. L'Hommedieu, who is sole heir at law. The latter nominated her husband as administrator of the estate, and he has appealed from the order mentioned.
 Appellant claims that the will names no residuary legatee and that consequently the sister is entitled to succeed to the residuary estate notwithstanding the attempt of the deceased to disinherit her, for which reason it was error on the part of the court to refuse to appoint her nominee as administrator.
 A brother or sister entitled to succeed is entitled to administer (Probate Code, sec. 42, subd. 5), and administration may be granted to one or more competent persons, although not otherwise entitled, at the written request of one who is entitled (Probate Code, sec. 423). This section also provides that "If the person making the request is a child, parent, brother or sister of the decedent, the nominee shall have priority next after those in the class of the person making the request; otherwise the court, in its discretion, may appoint either such nominee or a person of a class subsequent in rank to that of the person making the request. ..."
 The section plainly gives priority to a competent nominee of a child, parent, brother or sister of a decedent over persons in subsequent classes; and it is only as to the latter classes that the court may in its discretion appoint either a nominee or a person of a class subsequent in rank to that of the person making the request. It is not contended that the appellant is not otherwise competent to act, and if decedent's sister is entitled to succeed to the residue of the estate the court erroneously granted letters to the public administrator.
 [1] A relative is entitled to priority in appointment only when entitled to succeed to the estate or some portion thereof (Probate Code, sec. 422); and a nominee as such can have no greater right than the person entitled (Estate of Myers, 9 Cal.App. 694 [100 P. 712]; Estate of Connick, 198 Cal. 498 [209 P. 356]). [2] However, to destroy the right to succeed a testator must do more than evince an intention to disinherit; he must make a valid disposition of his property (Estate of Walkerly, 108 Cal. 627 [41 P. 772, 49 Am.St.Rep. 97]; Estate of Fritze, 85 Cal.App. 500 [259 P. 992]). [3] There appears to be no question as to the identity of the body designated by the testator as trustee, namely, the Blind Industrial Home for Adults in Oakland, California. Associations formed for a charitable object, whether incorporated *433 or not, are capable of taking bequests of this character (Estate of Winchester, 133 Cal. 271 [65 P. 475, 54 L.R.A. 281]; Estate of Irwin, 196 Cal. 366 [237 P. 1074]; Estate of McDole, 215 Cal. 328 [10 PaCal.2d 75]); nor does it admit of question that specially trained dogs are now furnished to and used by the blind. [4] While the testator directs the purchase of "a dog", a word importing the singular number only may in cases of this character be applied to several persons or things as well as to one person or thing (Dunn v. Cory, 56 N. J. Eq. 507 [39 Atl. 368]; Thrasher v. Ballard, 35 W. Va. 524, 527 [14 S.E. 232]). The question is one of intention, to be collected from the language of the whole will; and where the general intention of the testator to create a charity appears therefrom the courts, in dealing with an ambiguous residuary clause, will lean in favor of a broad rather than a restricted construction (Lamb v. Lamb, 131 N.Y. 227 [30 N.E. 133]).
 [5] The will was holographic and drawn by a person unskilled in the use of legal terms; but notwithstanding the uncertainty created by the use of a word importing the singular number, when it is considered that the testator wished to exclude all his relatives except his wife from participation in his estate, enough was said to show beyond reasonable question the general intention that the residue should be applied to the charity mentioned. Where the intention appears the general charitable purpose of the testator will be carried out (Estate of Peabody, 153 Cal. 173, 174 [97 P. 184]); and the rule applies to a surplus as well as where there is a deficiency in the fund (American Academy of Arts & Sciences v. President etc. of Harvard College, 12 Gray (Mass.), 582; Attorney-General v. Rector etc. of Trinity Church, 91 Mass. (9 Allen) 422; Society, etc., v. Attorney-General, 135 Mass. 285; Camp v. Presbyterian Society, 105 Misc. 139, 173 N.Y. Supp. 581). The record is silent as to what evidence, if any, respecting the circumstances under which the will was drawn, the value or condition of the estate, or other facts, was adduced at the hearing; but we are satisfied that the construction given to the will by the probate court, namely, that the testator made a valid disposition of his whole estate, is correct.
 The order is affirmed.