639 N.E.2d 228 (1994)
266 Ill.App.3d 24
203 Ill.Dec. 189
SHEARSON LEHMAN BROTHERS, INC., Plaintiff-Counterdefendant-Appellant,
v.
Jon P. HEDRICH, Daniel P. Miller and Donald C. Owen, Defendants-Counterplaintiffs-Appellees.
No. 1-92-1426.
Appellate Court of Illinois, First District, First Division.
August 22, 1994.
*230 Neal Gerber & Eisenberg, Chicago (Thomas M. Knepper, James H. Bowhay, of counsel), for appellant.
McBride, Baker & Coles, Chicago (Thomas P. Ward, of counsel), for appellees.
Justice BUCKLEY delivered the opinion of the court:
This appeal arises out of a dispute between Shearson Lehman Brothers, Inc. ("Shearson") and three former employees, Daniel P. Miller, Jon P. Hedrich, and Donald C. Owen ("defendants"). Defendants commenced an arbitration proceeding against Shearson in front of a three-arbitrator panel convened by the National Association of Securities Dealers, Inc. ("NASD") regarding, inter alia, the amount of money owed to them under Shearson's "Executive and Select Employees Deferred Compensation Plan" ("deferred compensation plan"). The NASD panel awarded each defendant a lump sum as the amount owed under the deferred compensation plan. Shearson brought an action in the circuit court to modify, correct, or partially vacate the award. Defendants filed a counterclaim seeking to have the award confirmed and entered as rendered. The circuit judge denied Shearson's petition to vacate or modify, confirmed defendants' award and entered judgment thereon. On appeal, Shearson contends: (1) that the circuit court erred in concluding that the arbitrators had not made a "miscalculation of figures" in arriving at the award; and (2) that, alternatively, the award should have been vacated because the arbitrators exceeded their powers by disregarding the unambiguous contractual provisions.
Each defendant had been employed by the Chicago office of Shearson, a securities brokerage firm, for many years. Defendants alleged in their complaints to the NASD arbitration board that between 1986 and 1988 the year-end bonuses which Shearson paid to them were substantially less than the amounts to which they were each entitled. They alleged that they complained to Shearson about this underpayment, but their protests were rejected. They further alleged that when it became clear to Shearson that defendants were determined to take their compensation disputes to arbitration, Shearson terminated defendants' employment. Hedrich was fired on September 25, 1989. Owen was fired on October 1, 1989. Miller was fired on October 16, 1989.
After their terminations, defendants commenced arbitration proceedings before an NASD arbitration panel. Defendants' Third Amended Statements of Claims upon which their disputes were submitted to the NASD arbitrators contained four counts for relief. Count I alleged a breach of contract by underpayment of compensation for the years 1986 through 1988. The NASD arbitration panel found for defendants on count I and Shearson paid to defendants all count I damages. Shearson has not appealed this determination and, therefore, these aspects of the award are not at issue. Count II alleged that defendants were owed additional compensation for the partial year they worked in 1989 prior to being fired. Defendants' claims in count II for 1989 compensation were "denied and dismissed in their entirety." Defendants have not appealed this determination and it is not before us. Count III alleged that defendants were wrongfully discharged and requested "lost future earnings." These count III claims were also "denied and dismissed in their entirety." Defendants have not appealed the dismissal of their count III claims. Finally, in count IV defendants alleged that, because they were wrongfully discharged, they should be considered "fully vested" under the company's deferred compensation plan. The *231 NASD arbitrators found Shearson liable to defendants on their count IV claims and ordered Shearson to pay Hedrich $207,264, Miller $207,264, and Owen $105,813.
Under Shearson's deferred compensation plan, a fully vested employee would be entitled to an amount equal to his contributions to the plan plus interest at a rate of 11% per annum. An employee whose employment was terminated prior to the effective vesting date, however, was only entitled to an amount equal to his contributions plus 5% interest per year. The effective date of vesting for each defendant was September 25, 1990. Paragraph 3 of each defendant's deferred compensation agreement provided:
"3. Payments Prior to Vesting or Effective Date.

[I]f prior to September 25, 1990 Employee ceases to be an employee of the Employer or of an affiliate for any reason whatsoever (including termination of employment by Shearson with or without cause) * * * (b) Shearson shall have no obligation of any kind hereunder except to pay Employee * * * an amount equal to the amount of compensation theretofore deferred and/or withheld * * * plus interest thereon at an annual rate equal to the lesser of 5% or the weekly 90-day Treasury Bill auction rate (on a discounted basis) averaged over a 12 month period ending on the date of payment. Such interest shall be compounded annually on a calendar year basis and shall be credited with respect to the average daily balance in the deferred compensation account each calendar year."
At the time of their terminations, each defendant had made contributions to the deferred compensation plan in the following amounts: Hedrich had contributed $140,000, Miller had contributed $80,000, and Owen had contributed $80,000. If the "fully vested" 11% compounded annual interest rate were added to each defendant's contributions, each defendant would have received a greater sum than what was awarded to them by the NASD arbitrators. On the other hand, if the "unvested" 5% compounded annual interest rate were added to each defendant's contributions, each defendant would have received less than the amount awarded. Specifically, at the 5% rate, Hedrich would be entitled to $186,928.76, Miller would be entitled to $102,406.10, and Owen would be entitled to $102,753.24. (Shearson's argument and, therefore, our analysis, assumes that, if plaintiffs are not to be considered "fully vested," then their compensation should be based on their contributions plus 5% interest and not the Treasury Bill rate.)
Since the NASD arbitrators clearly did not utilize either the "fully vested" 11% interest rate or the "unvested" 5% interest rate in calculating the amounts owed to defendants, Shearson filed an action in the circuit court seeking to modify, correct or, in the alternative, to vacate the arbitration award on the count IV claims. Defendants filed a counterclaim seeking to confirm the count IV arbitration awards. The circuit judge denied Shearson's petition, confirmed the award, and entered judgment thereon. Shearson filed a timely appeal to this court.
Shearson argues that the damages the NASD arbitration panel awarded to defendant bears no relation whatsoever to the unambiguous mathematical formulas provided in the defendants' deferred compensation agreements. Shearson contends, therefore, that we should modify or correct this clear mathematical miscalculation and enter an award for defendants in an amount equal to their contributions plus 5% interest. If the award is not a "mathematical miscalculation," however, Shearson asserts alternatively that we should vacate the award because the arbitrators exceeded their powers by disregarding the unambiguous contractual provisions. Shearson maintains that, under both the Uniform Arbitration Act ("UAA") and the Federal Arbitration Act ("FAA"), an arbitration award should be vacated when the arbitrators "interpret" unambiguous contractual language differently from its unambiguous meaning. Shearson argues that the arbitration panel did not have the authority to substitute a "pay-out" provision different from that contained in the defendants' deferred compensation agreements and that no possible construction of the deferred compensation agreements supports the damages awarded.
*232 Defendants argue, on the other hand, that when parties agree to arbitrate their disputes before parties they have chosen, and the award "is within the submission," courts should not set aside the award "for error either in law or fact" (Burchell v. Marsh (1855), 58 U.S. 344, 349, 15 L.Ed. 96, 99) as long as the interpretation of the agreements "is a reasonably possible one." (Rauh v. Rockford Products Corp. (1991), 143 Ill.2d 377, 158 Ill.Dec. 523, 574 N.E.2d 636; Garver v. Ferguson (1979), 76 Ill.2d 1, 27 Ill.Dec. 773, 389 N.E.2d 1181.) Defendants assert that the dispute over the amount of deferred compensation owed to them was duly submitted to the NASD panel because construction of the deferred compensation agreements was within the submission and arbitration agreements. Defendants contend that, since parties to arbitration agree that all questions as to law and fact are within the authority of the arbitrators, the arbitrators could not have exceeded their powers.
Shearson counters that defendants' argument, in effect, is that no matter how clear an arbitration panel's error and no matter how far from the contract provisions the panel may stray, its awards are beyond judicial review. Shearson asserts that such is not the law and to affirm the circuit court's decision here would be to render the arbitration statutes "superfluous and meaningless."
Judicial review of arbitration awards is more limited than review of a trial court's decision. (Hough v. Osswald (1990), 198 Ill.App.3d 1056, 1057, 145 Ill.Dec. 147, 148, 556 N.E.2d 765, 766.) However, under both the Uniform Arbitration Act ("UAA") (Ill.Rev.Stat.1991, ch. 10, par. 112(a)(3)(now 710 ILCS 5/12(a)(3) (West 1992))) and the Federal Arbitration Act ("FAA") (9 U.S.C.S. sec. 10(a)(4)(Law.Co-op Supp.1994)), a reviewing court will vacate an arbitration award if the arbitrators "exceeded their powers." Additionally, under both the UAA (Ill. Rev.Stat.1991, ch. 10, par. 113(a)(1) (now 710 ILCS 5/13(a)(1) (West 1992))) and the FAA (9 U.S.C. sec. 11(a) (Law.Co-op 1987)), if the arbitrators made an evident miscalculation of figures in arriving at the award, the reviewing court will modify or correct the award.
In construing the "instruments of submission to arbitration," the arbitrators only have authority to decide those issues which the parties have agreed to arbitrate. (Rauh (1991), 143 Ill.2d at 387, 158 Ill.Dec. at 528, 574 N.E.2d at 641.) If the arbitrators interpret the contract and issues submitted to them, then the parties are bound by that decision as long as the interpretation is "a reasonably possible one." (Rauh, 143 Ill.2d at 392, 158 Ill.Dec. at 530, 574 N.E.2d at 643.) A reviewing court will not set aside an arbitrator's award even though it is clear the arbitrators made gross errors of judgment in law or gross mistakes of fact "unless the mistakes or errors in judgment are apparent upon the face of the award." (Rauh, 143 Ill.2d at 393, 158 Ill.Dec. at 531, 574 N.E.2d at 644.) A party can also complain if the arbitrators exceed their authority and do not interpret the contract, "that is, if they disregard the contract and implement their own notions of what is reasonable and fair." (Hill v. Norfolk & Western Ry. Co. (7th Cir.1987), 814 F.2d 1192, 1195; see Rauh, 143 Ill.2d 377, 158 Ill.Dec. at 523, 574 N.E.2d at 636.) The arbitrators' authority is limited by the unambiguous contract language. (Inter-City Gas Corp. v. Boise Cascade Corp. (8th Cir. 1988), 845 F.2d 184, 187.) The ultimate award must be "grounded on the parties' contract" and arbitrators do not have the authority to ignore plain language and alter the agreement. Inter-City, 845 F.2d at 187-88.
Under the above stated principles, we believe that the NASD arbitrators exceeded their authority in awarding defendants an amount which was clearly not based upon the precise and unambiguous mathematical formulas provided in the deferred compensation agreements. The amount of deferred compensation to which each defendant was entitled was not, as defendants argue, the issue submitted to the arbitration panel. The arbitration panel was presented with the question of whether defendants were "wrongfully discharged" and, based on its resolution of this issue, the panel was supposed to decide the status of defendants, i.e., whether defendants should be treated as "fully vested" or "unvested" for purposes of determining their compensation under the *233 deferred compensation plan. If the arbitrators determined that defendants were "wrongfully discharged," defendants clearly should have been treated as though they were "fully vested" and each would have been entitled, according to the unambiguous provisions of the deferred compensation agreements, to an amount equal to that which he contributed to the plan plus 11% compounded annual interest. This amount would have been greater than the amount awarded by the arbitration panel. If the arbitrators found that defendants were not "wrongfully discharged," then they were not vested under the deferred compensation agreements and each would have been entitled to the amount he contributed to the plan plus 5% compounded annual interest. This amount would have been less than the amount awarded by the panel. Once defendants' status was determined, however, the amount of their award was merely a matter of applying the unambiguous mathematical calculations provided in the agreements.
It is clear that the arbitrators impermissibly ignored the unambiguous contract language and implemented their own notion of what would be reasonable and fair. Count III alleged that defendants were "wrongfully discharged." The panel "denied and dismissed" this claim in its entirety. Count IV, however, alleged that defendants should be treated as "fully vested" because they were "wrongfully discharged." The panel found Shearson liable on this count and awarded the above-mentioned mysteriously calculated amounts. Since the arbitrators dismissed defendants' allegations of "wrongful discharge" which were contained in count III and thus found that defendants were not "wrongfully discharged," it is inconsistent for them to have found Shearson liable under count IV which was premised upon such "wrongful discharge" and, necessarily, the allegations presented in count III. Therefore, count IV of defendants' Statements of Claims also should have been "denied and dismissed in their entirety" and defendants, having left Shearson's employment prior to their vesting date, should simply have been awarded the amounts of their contributions plus 5% compounded annual interest.
We find further support for our conclusion in the fact that, under the present Illinois law, defendants have not stated a claim for which relief could be granted. An employee at will may be discharged with or without cause and for good reason, bad reason, or no reason. (Price v. Carmack Datsun, Inc. (1985), 109 Ill.2d 65, 67, 92 Ill.Dec. 548, 549, 485 N.E.2d 359, 360; Palmateer v. International Harvester Co. (1981), 85 Ill.2d 124, 128-29, 52 Ill.Dec. 13, 15, 421 N.E.2d 876, 878.) Such a terminated employee has a "wrongful discharge" claim only if the reason for his discharge violates "clearly mandated public policy." (Price, 109 Ill.2d at 67, 92 Ill.Dec. at 549, 485 N.E.2d at 360.) Our supreme court has stated that, in order to be a subject of public policy as opposed to a purely personal matter "a matter must strike at the heart of a citizen's social rights, duties and responsibilities." (Palmateer, 85 Ill.2d at 130, 52 Ill.Dec. at 15-16, 421 N.E.2d at 878-79.) Matters of public policy which justify a finding of "wrongful discharge" include terminating an employee for filing a Workers' Compensation claim (Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 181, 23 Ill.Dec. 559, 563, 384 N.E.2d 353, 357), for exercising the civic right and duty of serving on a jury, for attending court when subpoenaed, for refusing to commit perjury, or for refusing to violate a statute or law. (Palmateer, 85 Ill.2d at 128-31, 52 Ill.Dec. at 15-16, 421 N.E.2d at 878-79, and the cases cited therein.) Purely private matters which do not justify a "wrongful discharge" action include terminating an employee for submitting an insurance claim under the health insurance plan provided by the employer (Price, 109 Ill.2d at 68-69, 92 Ill.Dec. at 550, 485 N.E.2d at 361) or for attempting to examine the company's books in the employee's capacity as a shareholder. (Palmateer, 85 Ill.2d at 131, 52 Ill.Dec. at 16, 421 N.E.2d at 879.) Defendants' allegation that they were fired because they were going to arbitrate their compensation disputes clearly does not "strike at the heart of a citizen's social rights, duties and responsibilities," but is rather a matter "of private and individual grievance." Price, 109 Ill.2d at 69, 92 Ill.Dec. at 550, 485 N.E.2d at 361.
We recognize that, under the standard of review of administrative determinations, we would not reverse a clear finding of "wrongful *234 discharge" even if legally incorrect and that in view of the NASD panel's inconsistent findings on counts III and IV, it could be argued that the panel's findings are unclear and that we cannot assume that it found that Shearson did not "wrongfully discharge" defendants. However, we see no reason to assume that the Board may have intended to find Shearson guilty of "wrongful discharge" and remand for the purpose of giving the panel a second chance to misapply what is clear Illinois law.
Therefore, since the arbitration panel's award was in excess of its authority, we vacate the award as to count IV and order that Shearson pay each defendant an amount equal to his contributions plus interest thereon at an annual rate of 5% as provided in the deferred compensation agreements. According to the record, the following apparently are the specific amounts defendants are entitled to at the 5% rate: Hedrich is entitled to $186,928.76, Miller is entitled to $102,406.10, and Owen is entitled to $102,753.24.
Accordingly, for the foregoing reasons, we vacate the NASD arbitration panel's award.
VACATED.
O'CONNOR and MANNING, JJ., concur.


113 F.3d 1251
Lewis-Webbv.Qualico Steel Co.**
NO. 96-6381
United States Court of Appeals,Eleventh Circuit.
Apr 18, 1997

1
Appeal From:  M.D.Ala. ,No.9500369CVDS , 929 F.Supp. 385

2
Affirmed.

**
 Local Rule 36 case


                                                                                Opinions of the United
1998 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

8-10-1998

John Hancock Insur. Co. v. Olick
Precedential or Non-Precedential:

Docket 97-1956

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1998

Recommended Citation
"John Hancock Insur. Co. v. Olick" (1998). 1998 Decisions. Paper 189.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/189

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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Filed August 10, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-1956

JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY;
JOHN HANCOCK DISTR; LARRY CARTER

       Appellants

v.

THOMAS W. OLICK

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 96-cv-04460)

Submitted Under Third Circuit LAR 34.1(a)
June 4, 1998

Before: SCIRICA, NYGAARD and SEITZ, Circuit Ju dges.

Filed: August 10, 1998

       Edward C. Mengel, Jr., Esquire
       Jane O. McCahill, Esquire
       White & Williams
       1800 One Liberty Place
       Philadelphia, PA 19103-7395
        Attorneys for Appellants
       Thomas W. Olick, Pro se
       4014 Crestview Avenue
       Easton, PA 18045

OPINION OF THE COURT

SEITZ, Circuit Judge.

This appeal presents the question of whether, under the
Federal Arbitration Act, 9 U.S.C. SS 1-16 ("the FAA" or "the
Act"), a district court has the authority, notwithstanding a
valid arbitration clause, to enjoin a party from pursuing
arbitration on res judicata grounds arising from both a
prior arbitration and a prior judgment. The district court
exercised diversity jurisdiction pursuant to 28 U.S.C.
S 1332 as well as federal question jurisdiction under 28
U.S.C. S 1331 based on the alleged violations of the
securities laws. Because the issues raised in the context of
this appeal are purely legal, our standard of review is
plenary. See Smith v. Magras, 124 F.3d 457, 460-61 (3d
Cir. 1997).

I. Facts and Procedural History

On October 13, 1992, John J. Carroll and others sued
John Hancock Distributors, Inc. ("Hancock") and eighteen
other defendants in Carroll v. Hancock, 92-cv-5907 (E.D.
Pa. 1995). The complaint primarily alleged violations of
several federal and state statutes, along with various
common law fraud theories, in connection with a series of
limited partnership transactions. Thomas Olick ("Olick"), a
former employee of Hancock and a registered life insurance
agent, was a named defendant in the Carroll action. Olick
attempted to assert a cross-claim against Hancock in the
Carroll litigation, but the district court denied the claim in
its entirety. The case was closed on November 30, 1994.

During the pendency of that litigation, Olick filed, on
December 2, 1992, a Statement of Claim with the National
Association of Securities Dealers ("NASD") against Hancock,
demanding the arbitration of disputes relating to certain
limited partnership transactions -- the same transactions,

                                  2
according to Hancock, that were the subject of the Carroll
action. The NASD, on February 28, 1995, issued an
arbitration award in favor of Olick and denied a number of
third party claims asserted by Hancock. The record does
not show that Hancock objected to the 1992 NASD
arbitration based on the existence of the then pending
Carroll litigation.

On May 4, 1996, after the conclusion of both the Carroll
case and the 1992 NASD arbitration, Olick filed with the
NASD another Statement of Claim against Hancock seeking
the arbitration of claims sounding in fraud,
misrepresentation, tortious interference with business
relations, slander, libel, and RICO violations. In response,
Hancock moved the arbitration panel to dismiss this claim
based on the res judicata effect of the prior 1992
arbitration award and the judgment rendered in the Carroll
action. Hancock in particular argued that Olick's 1996
Statement of Claim arose from the same factual
circumstances as the previous arbitration in 1992 as well
as the prior federal judgment, and therefore principles of
res judicata barred Olick from raising a claim that could
have been raised at either the prior arbitration proceeding
or the Carroll litigation. The arbitration panel, on February
11, 1997, denied Hancock's motion to dismiss without a
hearing or a discussion of the merits. So far as we are
aware, that proceeding is still pending.

Before the arbitration panel had denied Hancock's motion
to dismiss the second arbitration, Hancock filed a
complaint in the district court seeking a declaration that
the claims raised by Olick in the 1996 arbitration were
barred on res judicata grounds. Hancock also filed in the
district court a motion seeking to preliminarily enjoin the
NASD from further proceedings in resolution of the 1996
arbitration. The district court, however, denied Hancock's
motion and dismissed its complaint, holding that under the
Federal Arbitration Act the arbitrator, and not the court,
decides preclusion issues. While the district court noted
what was, in its view, an absence of third circuit case law
directly on point, it found persuasive a line of cases holding
that courts are not to rule on the validity of various
defenses to arbitration. See Conticommodity Services, Inc. v.

                                3
Philipp & Lion, 613 F.2d 1222, 1223 (2d Cir. 1980)
(timeliness of demand decided by arbitrator); North River
Ins. Co. v. Allstate Ins. Co., 866 F. Supp. 123, 129 (S.D.N.Y.
1994) (res judicata decided by arbitrator).

In its order denying Hancock's motion for
reconsideration, the district court declined to apply case
law holding that courts, and not arbitrators, are to decide
res judicata issues stemming from a prior judgment
rendered by federal court. The district court found those
cases distinguishable because they failed to address what it
viewed as the "hybrid" situation raised -- namely, "whether
an arbitrator or a federal court should determine the res
judicata effect of both a prior arbitration and a prior federal
court decision on an arbitration claim." D. Ct. Order, Nov.
11, 1997, at 2 (emphasis in original). Hancock now appeals
the district court's dismissal of its complaint and the denial
of its motion for a preliminary injunction.

II. Appellate Jurisdiction

As a preliminary matter, Olick contests this court's
jurisdiction to entertain this appeal. Section 16 of the FAA
governs the appealability of district orders with respect to
arbitration and provides:

       (a) An appeal may be taken from--

       (1) an order--

        (A) refusing a stay of any action under sectio n 3 of
       this title,

        (B) denying a petition under section 4 of this     title to
       order arbitration to proceed,

        (C) denying an application under section 206 o f this
       title to compel arbitration,

        (D) confirming or denying confirmation of an award
       or partial award, or

        (E) modifying, correcting, or vacating an award;

       (2) an interlocutory order granting, continuing, or
       modifying an injunction against an arbitration
       that is subject to this title; or

                               4
       (3) a final decision with respect to an arbitrat ion that
       is subject to this title.

9 U.S.C. S 16(a). While identifying the district court orders
with respect to arbitration that are the subject of immediate
appeal, the Act affirmatively removes appellate jurisdiction
to review certain types of "interlocutory" orders:

       (b) Except as otherwise provided in section 1292(b ) of
       title 28, an appeal may not be taken from an
       interlocutory order--

       (1) granting a stay of any action under section 3 of
       this title;

       (2) directing arbitration to proceed under section     4 of
       this title;

       (3) compelling arbitration under section 206 of th is
       title; or

       (4) refusing to enjoin an arbitration that is subj ect to
       this title.

9 U.S.C. S 16(b). The general approach to appellate
jurisdiction as set forth in the FAA is constrained; the Act
typically precludes appellate review of orders allowing
arbitration "until after the arbitration process has gone
forward." Stedor Enterprises, Ltd. v. Armtex, Inc., 947 F.2d
727, 730 (4th Cir. 1991); see also David D. Siegal, Practice
Commentary, 9 U.S.C.A. S 16, at 352 (West Supp. 1997).
Nevertheless, the FAA specifically states that any"final
decision with respect to an arbitration," is immediately
appealable, 9 U.S.C. S 16(a)(3), regardless of whether that
decision allows the arbitration process to go forward. See
Siegal, supra, at 352. Thus, the answer to the immediate
question in considering our appellate jurisdiction critically
turns on whether the district court orders were"final" or
"interlocutory," and consequently subject to the
jurisdictional hurdles set forth in section 16(b). See
American Cas. Co. of Reading v. L-J, Inc., 35 F.3d 133, 136
(4th Cir. 1996).

Congress did not define a "final decision" for purposes of
this section, and therefore we look to the prior, settled,
usage of that term. A final decision, as that term is

                                5
commonly understood for purposes of appellate
jurisdiction, refers to an order that "ends the litigation on
the merits and leaves nothing for the court to do but
execute the judgment." Oritz v. Doge, 126 F.3d 545, 547 (3d
Cir. 1997) (quoting Catlin v. United States, 324 U.S. 229,
233 (1945)). Within the context of orders relating to
arbitration, the decisive issue is "whether arbitrability was
the sole issue presented in the action or whether the issue
of arbitrability originated as part of an action raising other
claims for relief." American Cas., 35 F.3d at 136; see also
F.C. Schaffer & Assoc. v. Demech Contractors, Ltd. , 101
F.3d 40, 41 (5th Cir. 1996). If the arbitration issue arises
in what is known as an "embedded proceeding"-- that is,
embedded in some broader context raising issues or claims
for relief outside the arbitration context -- then the district
court order addressing arbitration cannot be considered a
final order subject to immediate appeal under section
16(a)(3) and the appellant must search for another avenue
of appellate jurisdiction under section 16(a). See Siegal,
supra, at 352. Conversely, an appeal from an "independent
proceeding" raising solely arbitration issues with no other
claims for relief falls under section 16(a)(3) as an appeal
from a final order because the litigation before the district
has effectively ended on the merits. Id. at 352-53. It
matters not whether the district court decision favors
arbitration or litigation. Id.

In this case, Hancock sought both legal and injunctive
avenues for relief: a judgment declaring Olick barred from
arbitration under the doctrine of res judicata, and an
injunction halting the NASD from entertaining Olick's
demand for arbitration. At first blush, it may be argued, as
Olick seems to do, that Hancock's motion for a preliminary
injunction is embedded within the broader complaint
seeking a declaratory judgment, and hence the district
court's denial of that injunction is not appealable under
section 16(a)(3) or section 16(b)(4). Yet, there was only one
issue before the district court, and that was whether Olick
might properly seek arbitration of his claims against
Hancock. When the district court decided that single issue
in favor of arbitration, the litigation effectively ended,
leaving nothing for the district court to do but enter
judgment. Accordingly, this independent proceeding before

                               6
the district concluded in a final order and is therefore
appealable under 9 U.S.C. S 16(a)(3).

III. The Federal Arbitration Act

Having established our jurisdiction, we now turn to the
merits of this appeal. Because this case raises questions
about the scope of the duty to honor an arbitration
agreement, our analysis must begin with the Federal
Arbitration Act. The FAA federalizes arbitration law and
"creates a body of federal substantive law establishing and
regulating the duty to honor an agreement to arbitrate
. . . ." Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp.,
460 U.S. 1, 25 n. 32 (1983). The operative language in the
Act, as provided in section two, states that:

       A written provision in any maritime transaction or a
       contract evidencing a transaction involving commerce
       to settle by arbitration a controversy thereafter arising
       out of such contract or transaction, or the refusal to
       perform the whole or any part thereof, or an agreement
       in writing to submit to arbitration an existing
       controversy arising out of such a contract, transaction,
       or refusal, shall be valid, irrevocable, and enforceable,
       save upon such grounds as exist at law or in equity for
       the revocation of any contract.

9 U.S.C. S 2. The parties agree that the arbitration
agreement at issue falls within the ambit of the FAA.

Because the FAA enforces arbitration agreements as a
matter of federal law, the statute authorizes district court
involvement in the arbitration process primarily in two
ways. See Local 103 of the Int'l Union of Elec., Radio and
Mach. Workers v. RCA Corp., 516 F.2d 1336, 1339 (3d Cir.
1975). One such function of the court arises when a party
resists arbitration under an existing arbitration clause. In
this case, the FAA allows a district court to compel, or
enjoin, arbitration as the circumstances may dictate. See 9
U.S.C. SS 3, 4; Painewebber v. Hartmann , 921 F.2d 507,
511 (3d Cir. 1990). The other basis of court involvement is
found when enforcement of an arbitration award is sought.
Here, the statute authorizes the district court to confirm,

                               7
vacate, or modify the award under a narrow scope of
judicial review. 9 U.S.C. SS 9-11.

Beyond these two areas, the statute does not authorize
court involvement in enforcing arbitration and we have
consistently admonished the courts "to exercise the utmost
restraint and to tread gingerly before intruding upon the
arbitral process." Lewis v. American Fed'n of State, County
and Municipal Employees, 407 F.2d 1185, 1191 (3d Cir.
1969); see also Local 103 of the Int'l Union of Elec., Radio
and Mach. Workers v. RCA Corp., 516 F.2d 1336, 1339 (3d
Cir. 1975). There is, of course, good reason for this
restrained approach. Arbitration is, above all, a matter of
contract and courts must respect the parties' bargained-for
method of dispute resolution. See Local 1545, United Mine
Workers Of Am., 876 F.2d 1288, 1293 (7th Cir. 1989).
Indeed, arbitration most often arises in areas where courts
are at a significant experiential disadvantage and
arbitrators, who understand the "language and workings of
the shop," may best serve the interest of the parties. See
United Steelworkers of Am. v. Enterprise Wheel and Car
Corp., 363 U.S. 593, 596 (1960); RCA Corp. , 516 F.2d at
1340. Thus, there is a strong policy in favor of arbitration
and courts must resist the attempt to intrude upon
arbitration proceedings where the statute does not explicitly
authorize court involvement.

Turning to the district court's authority to enjoin
arbitration, which is the heart of this dispute, we again
explore the nature of the district court's involvement in the
arbitration process. Here, the FAA states that a court may
issue an order compelling arbitration only "upon being
satisfied that the making of the agreement for arbitration or
the failure to comply therewith is not in issue." 9 U.S.C.
S 4. Starting with the familiar proposition that arbitration is
a creature of contract, courts have long since drawn the
conclusion that, as a matter of contract, no party can be
forced to arbitrate an issue unless that party has entered
into an agreement to do so. See AT&T Technologies v.
Communication Workers of Am., 475 U.S. 643, 648 (1986).
Because the competence of an arbitrator stems exclusively
from contract, a district court may only order, or enjoin,
arbitration based on the agreement to arbitrate itself. Id.

                               8
This includes, as a matter of course, an exploration into
whether the parties entered into a valid arbitration
agreement in the first instance, and whether the specific
dispute raised falls within the scope of that agreement. See
In re Prudential Ins. Co. of Am. Sales Practice Litig., 133
F.3d 225, 228 (3d Cir. 1998).

Thus, the threshold questions a district court must
answer before compelling or enjoining arbitration are these:
(1) Did the parties seeking or resisting arbitration enter into
a valid arbitration agreement? (2) Does the dispute between
those parties fall within the language of the arbitration
agreement? See In re Prudential, 133 F.3d at 128, 133;
Painewebber, 921 F.2d at 511. Absent a compelling federal
policy to the contrary, see Shearson/American Express Inc.
v. McMahon, 482 U.S. 220 (1989), the sina qua non of
arbitrability is simply stated: that a valid arbitration exists
and the dispute falls within the contours of that agreement.
In re Prudential, 133 F.3d at 128. As we have previously
concluded, district courts need only "engage in a limited
review to ensure that the dispute is arbitrable-- i.e., that
a valid agreement to arbitrate exists between the parties
and that the specific dispute falls within the substantive
scope of that agreement." Painewebber, 921 F.2d at 511. In
conducting this limited review, the court must apply
ordinary contractual principles, with a healthy regard for
the strong federal policy in favor of arbitration. Moses H.
Cone, 460 U.S. at 24; In re Prudential, 133 F.3d at 128.

A. The Res Judicata Dispute Between the Parties

As the district court recognized, this case presents
somewhat of a "hybrid" situation in that Hancock's
objection to arbitrating Olick's claims stems from both a
prior arbitration and a prior federal judgment. Apparently,
no case to date has addressed this precise factual complex,
and we will analyze each component of Hancock's position
in turn.

1. Res Judicata Based on a Prior Federal Judgment

Notwithstanding the analysis discussed above, many
federal courts have held as a matter of law that claims of

                                9
res judicata based on a prior federal judgment must be
decided by the district court before compelling or enjoining
arbitration. See, e.g., In re Y&A Group Sec. Litig., 38 F.3d
380, 382 (8th Cir. 1994); Kelly v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th Cir. 1993);
Miller Brewing Co. v. Forth Worth Distrib. Co., 781 F.2d 794,
499 (5th Cir. 1986); see also Miller v. Runyon , 77 F.3d 189,
194 (7th Cir. 1996) (collecting other cases). These courts
typically reason that federal courts must protect the finality
and integrity of prior judgments. See Kelly, 985 F.2d at
1069; In re Y&A, 38 F.3d at 382. As succinctly stated by
the Eleventh Circuit Court of Appeals, federal "[c]ourts
should not have to stand by while parties re-assert claims
that have already been resolved." Kelly, 985 F.2d at 1069.
Because the FAA contemplates that an arbitration award
may be enforced by judgment, see 9 U.S.C.S 9, these
courts would allow a district court to enjoin arbitration if
the claim would be precluded under ordinary rules of res
judicata. Miller Brewing Co., 781 F.2d at 499.

Not all courts, however, have been persuaded by such
logic. Most notably, the Second Circuit Court of Appeals
has held that a collateral estoppel defense to arbitration
based on a prior federal judgment should be decided by an
arbitrator because it is a merit-based defense to arbitration.
See United States Fire Ins. Co. v. National Gypsum Co., 101
F.3d 813, 817 (2d Cir. 1996). Whether such a defense is
itself arbitrable, like any other ambiguity in the scope of
arbitration, must stem from the language of the arbitration
agreement itself because arbitration is a matter of contract
and a "defense based on the issue preclusive effect of the
prior judgment is part of the dispute on the merits." Id.
Thus, the court reasoned, unless it may be said"with
positive assurance" that the parties intended to place the
collateral estoppel issue with a court, the viability of that
affirmative defense must be decided by an arbitrator. Id.

These competing considerations present the court with a
high order challenge. On the one hand, a realistic concern
for the finality and integrity of judgments would arise if
parties were free to ignore federal court decisions that have
conclusively settled claims or issues now sought to be
arbitrated. Yet, arbitration is a matter of contract and the

                               10
FAA only authorizes a "limited review" of the parties' intent
before compelling or enjoining arbitration. See
Painewebber, 921 F.2d at 511. The issue is thoughtfully
discussed in Miller v. Runyon, 77 F.3d 189, 193-94 (7th Cir.
1996), but that court fell short of providing a
comprehensive answer. In the final analysis, we conclude
that a decent respect for a precedent of this court dictates
that we resolve the issue in favor of district court
jurisdiction to decide the res judicata defense as it relates
to a prior judgment. Thus, we stated in Telephone Workers
Union of New Jersey v. New Jersey Bell Tel. Co., 584 F.2d
31 (3d Cir. 1978):

        The district court did not reach the merits of the
       Board of Arbitrators' interpretation of the Collective
       Bargaining Agreement. It turned, first, to the judgment
       preclusion effect of the Consent Decree. This was the
       proper course. When a federal court is presented with
       the contention that a prior federal judgment
       determined issues now sought to be relitigated in an
       arbitral forum it must first determine the effect of the
       judgment. This is so whether the question arises in an
       action to compel arbitration or, as here, in an action to
       enforce a disputed award. The federal policy favoring
       forum selection clauses, based in part on the
       institutional interest of federal courts in avoiding
       litigation, does not come into play until the courtfirst
       determines whether prior completed litigation has
       already finally determined all issues.

Id. at 32-33 (citation omitted). In that case, an aggrieved
employee sought arbitration of a matter that had been
conclusively settled by a consent decree entered by a
federal district court. Arbitration had in fact rendered a
result that conflicted with the consent decree and the
district court, in considering a motion to enforce the
arbitrator's award, turned first to the issue preclusive effect
of the consent decree. We affirmed on the principle that a
district court must first determine the effect of a prior
federal judgment when faced with the possibility of
relitigating issues already settled by that judgment.
Moreover, we explicitly stated that this was the correct
course regardless of whether parties seek to compel
arbitration or confirm a disputed award.

                               11
The district court did not apply our analysis in New
Jersey Bell to this case because of the unique"hybrid" res
judicata objection raised by Hancock -- "hybrid" in the
sense that Hancock's claim of preclusion stems from both
a prior judgment and a prior arbitration. We find no
principled reason underlying this distinction. When a party
resisting arbitration bases its claim of res judicata not only
on a prior judgment but also on the existence of a prior
arbitration, the analysis must focus on each aspect of the
claim; hybrid facts do not call for a hybrid analysis. To be
sure, there may be a number of factual grounds to
distinguish our holding in New Jersey Bell, but the legal
principle announced in that case directly controls the issue
presented before the district court -- in particular, whether
an arbitrator or a court must decide the preclusive effect of
a prior federal judgment. Given the broadly worded
language in that case, many courts have read New Jersey
Bell, as do we, for the proposition the federal courts must
intervene in the arbitration process when faced with res
judicata objections stemming from a prior federal judgment.
See Aircraft Braking Systems Corp. v. Local 856, Int'l Union,
United Auto., Aerospace and Agric. Implement Workers , 97
F.3d 155, 159 (6th Cir. 1996); John Morrell & Co. v. Local
Union 304a of the United Food and Commercial Workers ,
913 F.2d 544, 562 (8th Cir. 1990); American Trade
Dispatchers Assoc. v. Burlington N. R.R., 784 F. Supp. 899,
903 (D.D.C. 1992). Thus, whether we honor our internal
operating procedure governing the application of this
court's precedent, see 3d Cir. IOP Chapter 9.1. ("[T]he
holding of a panel in a reported opinion is binding on
subsequent panels.") (emphasis added), or apply the
pertinent language in New Jersey Bell, we conclude that
the district court in this case should have first decided the
preclusive effect of the prior federal judgment as it relates
to Olick's demand for arbitration before the NASD.

2. Res Judicata Based on the Prior Arbitration

The question remains, however, whether the district
court, under the FAA, may consider the preclusive effect of
the prior NASD arbitration as a basis for enjoining the
current NASD proceeding. We now turn to that issue.

                               12
As stated above, the judicial inquiry before compelling or
enjoining arbitration is narrow, and the FAA authorizes the
district court to explore only two threshold questions in
considering a demand for arbitration: (1) Did the parties
seeking or resisting arbitration enter into a valid arbitration
agreement? (2) Does the dispute between those parties fall
within the language of the arbitration agreement? See In re
Prudential, 133 F.3d at 128, 133; Painewebber, 921 F.2d at
511. While we have previously held that claims of res
judicata based on a prior federal judgment are an
exception, see Telephone Workers Union of New Jersey v.
New Jersey Bell Tel., 584 F.2d 31-32 (3d Cir. 1978), res
judicata objections based on a prior arbitration do not
implicate the institutional concerns underlying that
holding. Therefore, the proper analytical inquiry mandated
under the FAA is to focus on both the existence of a valid
arbitration agreement and the nature of that agreement as
it relates to the parties' current dispute.

We have previously held, for example, that where there is
a contractual provision barring the re-arbitration of similar
disputes between parties, the arbitrator is to decide the
preclusionary effect, if any, of a previous arbitration. See
Local 103 of the International Union of Elec., Radio, and
Mach. Workers v. RCA Corp., 516 F.2d 1336, 1340 (3d Cir.
1975). The reasoning underlying this approach is that a
provision regarding the finality of arbitration awards is a
creature of contract and, like any other contractual
provision that is the subject of dispute, it is within the
province of arbitration unless it may be said "with positive
assurance" that the parties sought to have the matter
decided by a court. Id. Although the contractual provision
before the RCA court specifically stated that "in no event
. . . shall the same question or issue be the subject of
arbitration more than once," this court approved the same
reasoning when faced with a broader agreement between
parties that arbitration awards are "final and binding." Id.
at 1341; see also Local 616, International Union of Elec.,
Radio, and Mach. Workers v. Byrd Plastics, Inc., 428 F.2d
23, 25 (3d Cir. 1970).

The parties' arbitration agreement in this case may be
found in the "Uniform Application for Securities Industry

                               13
Registration," ("Form U-4") signed by Olick, which submits
to the NASD "any dispute, claim, or controversy that may
arise between me and my firm, or a customer, or any other
person, that is required to be arbitrated under the rules,
constitutions, or by-laws of the organizations with which I
registered." Form U-4 P 5. The NASD Code of Arbitration
Procedure provides for the "arbitration of any dispute,
claim, or controversy arising out of or in connection with
the business of any member of the Association, with the
exception of disputes involving the insurance business of
any member which is also an insurance company . . . ."
NASD Code of Arbitration Procedure P 3701. The parties do
not contest the validity of the arbitration agreement here,
nor do they dispute that Olick's claims raised before the
NASD properly fall within the scope of the arbitration
clause. Indeed, both Olick and Hancock explicitly agreed to
"submit the present matter in controversy, as set forth in
the . . . statement of claim, answers, cross claims and all
related counterclaims and/or third party claims which may
be asserted, to arbitration . . . ." NASD Uniform Submission
Agreement P 1, Def.'s App. at 1. The only remaining
question, therefore, is whether the parties intended the
current controversy -- whether the prior NASD award
precludes Olick from asserting his claims -- to be
arbitrated as well.

The arbitration procedure agreed to here, as incorporated
in the arbitration agreement, states that all arbitration
awards are to be "final and not subject to review or appeal."
NASD Code of Arbitration Procedure P 10330(b). Moreover,
the parties agreed that "arbitrators shall be empowered to
interpret and determine the applicability of all provisions
under this Code and to take appropriate action to obtain
compliance with any ruling by the arbitrator(s)." Id.
P 10324. The NASD Code of Arbitration Procedure further
provides that "[s]uch interpretations and actions to obtain
compliance shall be final and binding upon the parties." Id.

Given this language, we must conclude that Hancock's
res judicata objection based on the prior arbitration is an
issue to be arbitrated and is not to be decided by the
courts. The procedural rules quoted above no doubt
demonstrates the parties' intentional adherence to a

                               14
binding principle of finality similar to res judicata as
applied to arbitration awards rendered by the NASD. It is
equally quite clear from the arbitration procedure adopted
here that the parties intended the NASD, and not the
district court, to determine the nature and extent, if any, of
that finality. Accordingly, the district court correctly
declined to decide Hancock's res judicata objection based
on the prior NASD award.

IV. Conclusions

For the reasons stated in this opinion, we will reverse the
order of the district court dismissing the complaint and
denying the preliminary injunction to the extent that it
provides that Hancock's res judicata defense based on the
prior judgment is an issue for resolution by the arbitrator.
We, of course, express no opinion on the merits of that
affirmative defense. To the extent the order of the district
court dismissed Hancock's res judicata defense based on
the prior arbitration, we will affirm. Accordingly, this case
will be remanded for such further proceedings as may be
appropriate.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               15


                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 2000-KA-01366-SCT

                                       CONSOLIDATED WITH

                                         NO. 95-KA-00152-SCT
SIMEON HUGHES
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                                01/30/1995
TRIAL JUDGE:                                     HON. ROBERT WALTER BAILEY
COURT FROM WHICH APPEALED:                       LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                          JAMES A. WILLIAMS
ATTORNEYS FOR APPELLEE:                          OFFICE OF THE ATTORNEY GENERAL
                                                 BY: JEAN SMITH VAUGHAN
DISTRICT ATTORNEY:                               BILBO MITCHELL
NATURE OF THE CASE:                              CRIMINAL - FELONY
DISPOSITION:                                     AFFIRMED - 11/15/2001
MOTION FOR REHEARING FILED:                      1/3/2002; denied 2/21/2002
MANDATE ISSUED:                                  2/28/2002

     BEFORE McRAE, P.J., COBB AND DIAZ, JJ.

     DIAZ, JUSTICE, FOR THE COURT:

¶1. This is a criminal appeal from the Circuit Court of Lauderdale County, Mississippi, where Simeon
Hughes was indicted, tried by a jury, and convicted of armed robbery. Hughes, a habitual offender, was
sentenced to 34 years in the custody of the Mississippi Department of Corrections without the possibility of
parole. This case comes before this Court consolidated from a previous appeal of the same parties and
crime. In Hughes's previous appeal, his attorney believed there was no reversible error. The Court of
Appeals affirmed Hughes's conviction in his first appeal. Based upon a review and decision by the United
States Court of Appeals for the Fifth Circuit, this Court now reviews Hughes's out-of-time direct appeal, his
second appeal. Hughes v. Booker, 220 F.3d 346, 353 (5th Cir. 2000). With new counsel to assist him in
his appeal, Hughes is seeking a reversal and remand for a new trial or in the alternative a remand for
resentencing.

                                                  FACTS

¶2. On April 14, 1994, Hughes threatened Henry Earl Brown with a gun and took $20 from him. Brown
was the only witness to testify at the trial of Hughes. Brown testified that he stopped at the Amoco Station
in Meridian to get some coffee and bait his coon traps. He said that Hughes and a woman approached him
at the Amoco. The woman introduced herself as Hughes's sister and asked him for a ride home and some
money. Brown gave the woman two dollars, took her home, and accompanied her inside the home. The
woman asked Brown to spend a little time with her before he went out to set his coon traps. Brown told the
woman that "sex-wise," he had nothing to offer because cancer had destroyed his virility.

¶3. Brown testified that about 5 minutes later, Hughes entered the home. Hughes asked Brown if he wanted
to buy a nine millimeter handgun. Hughes pulled the gun out from behind his back to show Brown. Hughes's
sister then asked Brown to give them $20 so that they could buy some crack cocaine. Brown testified that
he told them he did not throw his money away on drugs. He said Hughes moved in closer to him, and
Brown said, "I think I know what y'all up to. It's time for me to go, and I made a break for it." Brown
testified that the woman then "snatched" Hughes down on the couch. When he got up, she grabbed him, and
Brown shoved her back. He then testified that Hughes said that if he hit his sister again he would kill him.
Hughes then hit Brown on the head with the pistol, causing him to bleed. The woman took the money from
Brown's front pocket, tearing the pocket, and dropped it on the floor. Brown picked his roll of money back
up. Hughes told Brown to give his sister the $20.00. Brown submitted to Hughes because Hughes had a
gun drawn on him. Brown actually had over $300 dollars, but testified that he told Hughes that he would
have to kill him to get all his money. So, Hughes allowed Brown to count out exactly $21 to give to
Hughes's sister.

¶4. Hughes now argues that several errors occurred at trial including: (1) improper jury instructions, (2)
failure to instruct the jury on lesser-included offenses, (3) error in excluding Hughes from chambers during
the striking of the jury, (4) error in denying Hughes his Fifth Amendment right to silence, (5) ineffective
assistance of counsel, and (6) error in sentencing Hughes as a habitual offender. Most of these errors, as the
State points out, are procedurally barred because proper objections were not raised at trial to preserve the
issues. Nevertheless, this Court will address the merits of each of Hughes's assertions.

                                            LEGAL ANALYSIS

      I. Did the trial judge err in instructing the jury on elements of the crime that did not conform
      to the indictment?

¶5. Hughes argues that parts two and three of Instruction S-1 impermissibly vary from the indictment and
that the facts do not support the instruction given to the jury. Parts two and three of Instruction S-1 state:

      2. The Defendant, Simeon Hughes, did, either alone or with others, wilfully unlawfully and knowingly
      take or attempt to take the personal property of Henry Earl Brown from the person of Henry Earl
      Brown by force or by putting him in fear of immediate injury to his person;

      3. By the exhibition of a deadly weapon.

The indictment charges the following:

      Simeon Hughes .... did wilfully, unlawfully and feloniously take or attempt to take the personal
      property of Henry Earl Brown, consisting of Twenty Dollars ($20.00) ... from the person or presence
      of Henry Earl Brown against his will by violence to his person by the use of a deadly weapon, a
      handgun, putting the said Henry Earl Brown, in fear of immediate injury to his person...

Hughes complains that the instruction should have included the amount of the personal property taken from
Brown. He also argues that the instruction should not have included the "either alone or with others"
language because this implies that other people may have participated in the crime. These arguments are
without merit. The differences between Instruction S-1 and the indictment are minute. Furthermore, the jury
was fully aware of the amount of personal property taken from Brown; therefore, it makes no difference
whether the instruction included the exact amount.

¶6. Hughes believes that the "exhibition of a deadly weapon" should not have been an element of the
instruction. Hughes somehow contends that one of Brown's responses to the prosecutor's questions did not
warrant the inclusion of this third part of the instruction. At some point during his cross-examination, Brown
stated that Hughes did not have to point the gun at him after Hughes had knocked him in the head with it.
Putting this statement into context, the jury could have reasonably interpreted this to mean merely that
regardless of whether Hughes was pointing the gun at Brown, Brown was put in enough fear to feel
threatened with deadly force by the exhibition of the handgun. From a factual standpoint, Hughes's
proposition is without merit. Furthermore, this was a factual issue that was left to the interpretation of the
jury.

      II. Did the trial court err in failing to instruct the jury on the lesser offenses of aggravated
      assault and simple assault?

¶7. Hughes gives several arguments for his assertion that he should have been charged with lesser crimes.
First, he argues that since his sister was the one who took the money, he did not actually rob Brown.
Secondly, he states that he was only defending his sister from Brown and he believed that Brown owed his
sister the $20.00. Third, he argues that since Brown did not receive medical treatment, there is no proof
that his injuries were serious enough to support the crime of armed robbery. There is no support in the
record for Hughes's assertion that the trial court erred by failing to give him an instruction on simple assault.
Hughes hit Brown on the head with a gun and threatened Brown with the specific intent to put Brown in fear
and take his money. However, there is evidence in the record that would support an instruction on
aggravated assault. The trial court and the State acknowledged that an instruction on aggravated assault
would be appropriate, but Hughes's counsel stated, "Your Honor, we don't seek an instruction on
aggravated assault." Therefore, Hughes effectively waived the instruction on aggravated assault.

      III. Did the trial judge err in excluding Hughes from chambers during the jury selection
      process?

¶8. Hughes argues that he was denied his right to be present during the jury selection process, a critical
stage of the proceedings. This alleged error was not raised at trial or in the motion for new trial. A review of
the record shows that Hughes was present when the jurors were questioned and that he was able to confer
with his attorney about any possible disqualifications. During the jury selection in chambers, counsel for
Hughes was told by the trial judge that Hughes had a right to be present. Rogers Druhet, Hughes's trial
attorney, responded that he did not want Hughes present during the jury selection process in chambers.
Hughes now argues that the jury selection process was a critical stage and that he had a right to be present.

¶9. In Davis v. State, 767 So.2d 986, 992 (Miss. 2000), this Court held that the critical stage of the jury
selection process is when the jurors are questioned about matters regarding whether they know or are
related to anyone involved in the case, know or have read about the case, or whether some hardship
related to the charge might give cause for sequestration. The issue of whether the peremptory challenges
stage of the jury selection process is a critical stage has not been before this Court. Furthermore, the issue
of whether the defendant's counsel can waive the defendant's right to be present during peremptory
challenges has not been before this Court.
¶10. Other state courts have held that the peremptory challenges stage of the jury selection process is a
critical stage at which the defendant has a right to present. See State v. Collins, 648 P.2d 135, 138 (Ariz.
Ct. App. 1982); Muhammad v. State, 782 So.2d 343 (Fla. 2001). This Court in Chase v. State, 699
So.2d 521, 534 (Miss.1997) (quoting Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 2667,
96 L.Ed.2d 631 (1987)) held that "a criminal defendant 'is guaranteed the right to be present at any stage of
the criminal proceedings that is critical to its outcome if his presence would contribute to the fairness of the
procedure.'" We find that a defendant's presence at the peremptory challenges stage would contribute to the
fairness of the procedure. The trial judge recognized that Hughes had a right to be at the peremptory
challenges and so does this Court.

¶11. However, this Court must now decide whether Hughes's counsel could effectively waive Hughes's right
to be present during peremptory challenges. This Court has held that "a party is bound by the acts of his
attorney." Stringer v. State, 627 So.2d 326, 330 (Miss.1993). There are exceptions where a personal
waiver of the defendant is required; however, the right to be present during peremptory challenges is not
one of those exceptions. See Wardley v. State, 760 So.2d 774, 778 (Miss. Ct. App. 1999). Due to the
trial counsel's decision to waive Hughes's right, we find no error in Hughes's exclusion during peremptory
challenges.

      IV. Was Hughes's Fifth Amendment right to silence violated?

¶12. Hughes argues that certain statements made by the prosecutor during his closing argument violated his
right to silence, since he declined to testify on his own behalf. This argument is without merit. The
prosecutor, in closing, stated that "Simeon Hughes is the only one that knows why they let him [Brown] off
with just $21 dollars." There were no noteworthy objections at trial regarding any statements made by the
prosecutor during his closing argument. However, Hughes now argues that this is a direct comment by the
prosecutor on his failure to testify.

¶13. Attorneys have wide latitude in arguing the facts and evidence in their closing arguments. Ahmad v.
State, 603 So.2d 843, 846 (Miss. 1992). We find that the prosecutor did not make any remarks in his
closing arguments that violated Hughes's Fifth Amendment right to silence.

      V. Did Hughes receive effective assistance of counsel?

¶14. The test for evaluating a claim of ineffective assistance of counsel is set out in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). The appellant must establish that
counsel's performance was deficient, and that the deficiency prejudiced his defense. Id. Hughes must
overcome a strong presumption that counsel's conduct falls within a wide range of reasonable professional
assistance; that is, he must overcome the presumption that counsel's decisions are a result of sound trial
strategy. Id. Hughes asserts the following: Hughes's trial counsel, Rogers Druhet, should not have waived
the preliminary hearing; no pretrial ruling was made concerning his prior convictions and no witnesses were
presented for Hughes; the offer of aggravated assault was rejected; no instruction was given regarding
Hughes's right to remain silent; the victim was not cross-examined effectively; no objection is made to an
improper argument by the State; and Druhet at one point stated in closing that it would be "hard for us to
find Mr. Hughes innocent of armed robbery, rather, guilty of armed robbery." Hughes does not offer any
meaningful factual support for these assertions.
¶15. Proof of Hughes's prior convictions is evidenced in the record, and there is nothing in the record to
indicate that these prior convictions should have been excluded in the sentencing phase of Hughes's trial. As
for the preliminary hearing, in cases where a defendant has been indicted by a grand jury, the defendant is
not entitled to a preliminary hearing. U.R.C.C.C. 6.05.

¶16. The assertion that Druhet's failure to call witnesses resulted in ineffective assistance of counsel is
groundless and frivolous. There was evidence in the record that Hughes was accompanied by another male
during the commission of his crime against Brown. The record gives no clear indication as to why Hughes's
sister or the other male were not called as witnesses at the trial. However, Hughes gives no support as to
why these witnesses should have been called or if the failure to call these witnesses prejudiced his case. In
fact, Hughes's assertion is altogether unclear because his argument concerns a letter of continuance in which
Hughes's counsel requested additional time to interview witnesses. Hughes's argument is illogical; there is no
connection between the letter of continuance and a claim for ineffective assistance of counsel for failure to
call witnesses. Hughes's assertion also complains of Druhet's failure to call witnesses at the sentencing
hearing so that he could somehow contest the prior convictions and have them excluded from sentencing.
This argument is groundless. The record supports the trial judge's sentencing of Hughes as a habitual
offender.

¶17. As to the assertion that it was damning when Druhet said that it would be hard "to find Mr. Hughes
innocent of armed robbery -- rather, guilty of armed robbery," this Court finds that this is a harmless
mistake that does not give rise to ineffective assistance of counsel. Hughes does not give any support to any
other assertions raised on appeal before this Court. Therefore, Hughes's claim of ineffective assistance of
counsel is without merit.

      VI. Was Hughes properly sentenced as a habitual offender?

¶18. Hughes had prior convictions for burglary, burglary of a dwelling and felony shoplifting. Certified
copies of the judgments were admitted into evidence as proof of these prior convictions. Hughes, in fact,
stipulated that he was the person who committed these crimes. Hughes asserts that the number of the felony
conviction for shoplifting in the indictment was different from the number upon which his habitual status was
based. Although Hughes failed to object at trial regarding this issue, he now raises the issue on appeal.
There is insufficient evidence before this Court to determine whether the difference in numbering was a
clerical error or whether the actual conviction was different. However, regardless of whether the numbering
was incorrect, Hughes stipulated to the fact that he was convicted of all three prior felonies. Furthermore,
his argument concerned the numbering on the felony shopping lifting conviction. Hughes does not dispute the
authenticity or numbering of the two burglaries, so those two felonies alone were sufficient to sentence
Hughes as a habitual offender. See Miss. Code Ann. § 99-19-81 (2000).

                                              CONCLUSION

¶19. Based on a review of the record and of the briefs of both parties, this Court finds no reversible error.
Therefore, the judgment of the Lauderdale County Circuit Court is affirmed.

¶20. CONVICTION OF ARMED ROBBERY AS A HABITUAL OFFENDER AND
SENTENCED TO SERVE A TERM OF THIRTY FOUR ( 34) YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT POSSIBILITY OF
PAROLE, SUSPENSION, OR OTHER REDUCTION, PAY COURT COSTS OF $184.50,
AFFIRMED.

   PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, EASLEY, CARLSON
   AND GRAVES, JJ., CONCUR.


977 F.2d 588
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.Jessie GOMEZ, Petitioner-Appellant,v.Bill J. BUNNELL, Respondent-Appellee.
No. 91-16502.
United States Court of Appeals, Ninth Circuit.
Submitted Oct. 8, 1992.*Decided Oct. 15, 1992.

Before FERGUSON, O'SCANNLAIN and RYMER, Circuit Judges.

1
MEMORANDUM**

2
Gomez is a state prisoner proceeding pro se.   While serving a life sentence for murder, he was convicted in Marin County Superior Court for assault with a deadly weapon for stabbing another prisoner.   For the assault, Gomez was sentenced to four years imprisonment to run consecutively with his life sentence.

3
Gomez appealed his conviction and sentence to the California Court of Appeal, which affirmed.   Gomez then sought a writ of habeas corpus from the California Supreme Court.   In his petition, he asserted the same alleged errors by the trial court that he had raised in the Court of Appeal, as well as alleged errors by the Court of Appeal.   The California Supreme Court denied his petition.

4
Gomez then filed a petition for writ of habeas corpus with the federal district court.   That court denied his petition for writ of habeas corpus.1  We have jurisdiction pursuant to 28 U.S.C. § 2253.   We affirm.

5
* After his conviction and sentence were affirmed on appeal, Gomez has not raised the issues presented in this habeas petition on direct appeal to the California Supreme Court, but has raised them in a petition for writ of habeas corpus to that court.

6
California law requires that a direct appeal to the California Supreme Court be filed within ten days of the court of appeal's decision.   Cal.Rule of Court 28(b) (West Rev.Ed.1991).   The state argues, therefore, that the California Supreme Court rejected Gomez's habeas petition on procedural grounds.   However, the state court must make a clear and express statement that its judgment rests on a procedural basis for a procedural default to bar federal habeas relief.   Harris v. Reed, 489 U.S. 255, 263 (1989).

7
Here, the California Supreme Court rejected Gomez's petition, citing  In re Waltreus, 62 Cal.2d 218, 225 (1965), and  In re Swain, 34 Cal.2d 300, 304 (1949).   The state contends that those citations show that the Supreme Court's decision was based on a procedural default.   However, in  Maxwell v. Sumner, 673 F.2d 1031, 1034 (9th Cir.), cert. denied, 459 U.S. 976 (1982), this court observed that California does not have a state rule that requires that an issue be raised on direct appeal before it can be raised as grounds for habeas relief.   We interpreted the holding in Waltreus to be "that arguments rejected on appeal will not be reviewed again in habeas."   Id. at 1034.   The California Supreme Court's cite to Waltreus, therefore, was an indication that the petitioner's claims "had been considered and rejected on the merits on direct appeal" and thus would not be heard again in habeas.   Id.  Accordingly, we conclude that the California Supreme Court's decision to deny review was not based on procedural grounds.

8
The state has not pointed to anything that undermines the authority of Maxwell.2  Therefore, we will not disturb the district court's conclusion that no state procedural bar was relied on in this case by the California Supreme Court.

II

9
Gomez claims that the trial court unconstitutionally enhanced his sentence based on a false maximum parole date listed in his presentence report and by finding that he was a gang member.

10
The trial court may conduct a virtually unlimited inquiry when imposing sentence.   United States v. Williams, 782 F.2d 1462, 1466 (9th Cir.1986).   However, a sentence imposed by a state court may violate due process if it is enhanced based on materially false or unreliable information.   Walker v. Endell, 828 F.2d 1378, 1384 (9th Cir.1987), cert. denied, 488 U.S. 926 (1988).

11
The petitioner must show that the disputed information is false and unreliable.   United States v. Columbus, 881 F.2d 785, 787 (9th Cir.1989).   Information is unreliable if it "lacks some minimal indicia of reliability beyond mere allegation."   United States v. Ibarra, 737 F.2d 825, 827 (9th Cir.1984) (quotation omitted).   Moreover, the petitioner must show that the false or unreliable information was demonstrably made the basis for the sentence.  Columbus, 785 F.2d at 787.

12
Gomez first complains that the probation report falsely lists a maximum eligibility date for parole as April 10, 1987.   In fact, he was serving a life sentence at the time.   However, Gomez has failed to show that the incorrect parole date was relied on by the trial court when calculating his sentence.   Therefore, the district court's conclusion was proper.

13
Gomez also claims that the trial court relied on unreliable information in his probation report concerning a gang affiliation.   Statements by the trial judge indicate that he believed that Gomez was probably a member of the Nuestra Familia.   The trial judge based his conclusion on both Gomez's probation report and the details of the assault.   The probation report included the statement of a named Nuestra Familia member, an eyewitness to the murder, who testified that Gomez had been sent to kill the member of a rival gang.   Cr. United States v. Weston, 448 F.2d 626, 630 (9th Cir.1971) (sentenced based "on unsworn evidence detailing otherwise unverified statements by a faceless informer that [the defendant] is probably guilty of additional and far more serious crimes").   We are persuaded that there was sufficient evidence for the trial court to accept the uncontradicted contention that Gomez was a member of the Nuestra Familia.

14
Moreover, even if Gomez had met his burden of showing that the Nuestra Familia information was false or unreliable, he has not shown that the information was demonstrably made the basis for the sentence.   See Columbus, 881 F.2d at 787.   Gomez's probation report and worksheet indicate that the aggravated term for assault was based on his pattern of violent conduct, his prior convictions as an adult, and his prior unsatisfactory performance on probation, rather than an enhancement for gang affiliation.

III

15
Gomez next claims that he was denied a speedy trial as guaranteed by the Sixth Amendment.

16
In order to determine whether Gomez's right to a speedy trial was violated, we apply a "functional analysis" test weighing four factors:  (1) the length of the delay;  (2) the reason for the delay;  (3) the defendant's assertion of the speedy trial rights;  and (4) the prejudice to the defendant.   See Barker v. Wingo, 407 U.S. 514, 522 (1972).   The primary consideration is whether the delay was so long as to be "presumptively prejudicial."3   See Barker, 407 U.S. at 530.   In this case, Gomez has failed to show that the delay was significant or that he suffered any prejudice.

17
Length of delay is the "triggering mechanism" in the inquiry.   Id.  Delay is measured from the time of the indictment to the time the trial commences.   See United States v. Valentine, 783 F.2d 1413, 1417 (9th Cir.1986).   The district court found, and Gomez does not contest, that only forty-nine days passed from the filing of the information to the commencement of trial.   Such a period is not significant.   Cf. Valentine, 783 F.2d at 1417 (six month delay is borderline).

18
In addition, the fourth factor in the Barker analysis weighs heavily against Gomez.   Because he was serving a life sentence, the district court concluded that Gomez had not suffered any oppressive pre-trial incarceration.   See Williams, 782 F.2d at 1466.   Moreover, Gomez gives no indication that the delay affected his defense.   Id.  The lack of prejudice to his defense is underscored by the fact that he presented no defense and the evidence against him was so overwhelming.

19
Gomez now argues that he lost the opportunity to go to the mainline during that time, decreasing his chances of getting a parole date, or job or educational training.   Gomez demonstrates no actual prejudice.   The mere possibility of prejudice is insufficient.   See United States v. Sears, Roebuck and Co., Inc., 877 F.2d 734, 740 (9th Cir.1989).   Accordingly, the district court's conclusion that Gomez's Sixth Amendment right to a speedy trial was not violated was proper.

IV

20
Gomez also complains about the delay between his arrest and his indictment.

21
Although pre-indictment delay does not implicate the Sixth Amendment, oppressive delay may implicate the right to due process.   United States v. Lovasco, 431 U.S. 783, 788-89 (1977).   However, to demonstrate a due process violation Gomez must show that he suffered "actual prejudice."   Id. at 789.   If he demonstrates actual prejudice, we must then weigh the length of the delay with the reasons for the delay, and find that the delay violated "fundamental conceptions of justice."   United States v. Moran, 759 F.2d 777, 782 (9th Cir.1985), cert. denied, 474 U.S. 1102 (1986).

22
The assault occurred on April 10, 1985.   A complaint was filed on August 20, 1985.   During that delay Gomez was serving a life sentence for murder.   Again, the only allegation of prejudice that he makes is that he lost the opportunity to go to the mainline.   Such speculative loss fails to meet Gomez's "heavy burden" of showing actual prejudice.   Id.  Gomez simply cannot demonstrate that the four month delay before indictment violated fundamental conceptions of justice.   Accordingly, the district court correctly held that his right to due process had not been violated by the delay.

V

23
Finally, Gomez argues, apparently for the first time, that the district court should have appointed counsel to represent him.   However, we do not consider claims the petitioner failed to raise in his habeas petition to the district court.   United States v. Smith, 924 F.2d 889, 893 (9th Cir.1991).   Moreover, Gomez's claim is clearly without merit.   See Coleman v. Thompson, 111 S.Ct. 2546 (1992) (no right to counsel for habeas petition).

24
AFFIRMED.

*
 The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument.   Fed.R.App.P. 34(a), Ninth Circuit R. 34-4

**
 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 R. 36-3

1
 By order dated April 24, 1991, the district court denied as premature Gomez's motion for a default judgment.   Gomez filed a request for default judgment on April 1, 1991 because the state had failed to answer his complaint by March 11, 1991 as originally ordered by the district court.   However, by order dated March 14, 1991, the district court extended that deadline until April 11, 1991

2
 Maxwell also held that when a claim has been briefed and argued before the California Court of Appeal, failure to assert it in the petition to the California Supreme Court does not normally waive it.   Maxwell, 673 F.2d at 1034 n. 1.   California has abrogated that conclusion by court rule.   See Cal.Rule of Court 28(e)(2);   McGuire v. Estelle, 902 F.2d 749, 753 n. 1 (9th Cir.1990), rev'd on other grounds, 112 S.Ct. 475 (1991).   In this case, however, the state does not contend that Gomez's habeas petition to the Supreme Court did not raise the same claims as he raised in the Court of Appeal

3
 A petitioner need not show actual prejudice when the delay is great and attributable to the government.   See Doggett v. United States, 112 S.Ct. 2686, 2694 (1992).   The delay at issue here is not so great as to excuse Gomez from the need to show prejudice


IN THE
TENTH COURT OF APPEALS

No. 10-08-00314-CR

Victor Antonio Martinez,
                                                                                Appellant
 v.

The State of Texas,
                                                                                Appellee

From the 40th District Court
Ellis County, Texas
Trial Court No. 28403CR

MEMORANDUM  Opinion

In 2005, Appellant was adjudicated guilty of
aggravated sexual assault of a child and received a ten-year sentence.  The
judgment adjudicating guilt states that he was credited thirty-one days for
time served.  He now apparently attempts to appeal the denial of an article
11.07 habeas claim for reduction of his sentence for jail time credit and his
failed attempt to obtain free copies of documents relating to his claim for
reduction.
This court has jurisdiction over criminal appeals
only when expressly granted by law.  Everett v. State, 91 S.W.3d
386, 386 (Tex. App.—Waco 2002, no pet.).  No statute vests this court with
jurisdiction over an appeal from an order denying a request for a free copy of
the trial record when such a request is not presented in conjunction with a
timely filed direct appeal.  Id.; see Self v. State, 122
S.W.3d 294, 294-95 (Tex. App.—Eastland 2003, no pet.).  Furthermore, an
intermediate court of appeals has no jurisdiction over post-conviction writs of
habeas corpus in felony cases.  Self, 122 S.W.3d at 295 (citing Tex. Code Crim. Proc. Ann. art. 11.07).

Clegg v. State, 214 S.W.3d 671 (Tex. App.—Waco 2007, no pet.).
We notified Appellant that unless he showed grounds for continuing his
appeal, we might dismiss it for want of jurisdiction.  Appellant has filed a response,
but it does not show that we have jurisdiction.  Accordingly, we dismiss this appeal
for want of jurisdiction.
PER CURIAM

Before Chief Justice
Gray,
            Justice
Vance, and
            Justice Reyna
Appeal dismissed
Opinion delivered and filed
October 29, 2008
Do not publish
[CR25]

ing defendants.
Thus, the summary judgment is interlocutory and not appealable.  Accordingly, we grant the
hospital’s motion and dismiss the appeal for want of jurisdiction.

                                                                               PER CURIAM

Before Chief Justice Davis,
      Justice Cummings, and
      Justice Vance
Dismissed for want of jurisdiction
Opinion delivered and filed April 1, 1998
Do not publish