                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         FEB 20 2002
                         FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    MATTHEW JAMES GRIFFIN,

              Petitioner-Appellant,

    v.                                                 No. 00-2347
                                             (D.C. No. CIV-97-1560-LH/JHG)
    TIM LEMASTER, Warden,                               (D. N.M.)
    New Mexico State Penitentiary;
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,

              Respondents-Appellees.

    MATTHEW JAMES GRIFFIN,

              Petitioner-Appellant,

    v.
                                                       No. 01-2304
    TIM LEMASTER, Warden,                     (D.C. No. CIV-00-949-JP/RLP)
    New Mexico State Penitentiary;                      (D. N.M.)
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,

              Respondents-Appellees.

                          ORDER AND JUDGMENT            *

*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before LUCERO , PORFILIO , and ANDERSON , Circuit Judges.

       After examining the briefs and appellate records, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

       Petitioner, a former Albuquerque police officer, was convicted by a New

Mexico jury in 1991 of felony murder, aggravated burglary, five counts of armed

robbery, and tampering with evidence. Petitioner’s convictions were upheld on

direct appeal and in state collateral proceedings. His subsequent attempts to

secure federal habeas relief have followed a tortuous path. He currently seeks to

appeal the dismissal of two federal habeas petitions he filed pursuant to 28 U.S.C.

§ 2254.

       On December 8, 1997, petitioner filed a timely federal habeas petition

alleging nine grounds for relief. On June 12, 1998, after the State filed a motion

to dismiss, the district court appointed the Federal Public Defender for

New Mexico to represent petitioner and ordered the State to file all state court

records and to notify the court and petitioner when the record was filed.

Petitioner was given thirty days after the filing of the state court record to

respond to the State’s motion to dismiss. Shortly thereafter, the Federal Public

                                          -2-
Defender moved to withdraw due to a conflict of interest. The district court

granted the motion to withdraw and ordered that new counsel be appointed.

On July 9, 1998, attorney Allen Kerpan was appointed to represent petitioner.

On September 30, the State filed the state court record.   1

       By order entered January 5, 1999, the district court gave petitioner’s

counsel until February 5 to respond to the outstanding motion to dismiss. On

February 4, counsel filed a motion for extension of time seeking an additional

twenty days in which to respond to the motion to dismiss. Meanwhile, petitioner,

not having been able to contact his counsel for several weeks, and not knowing

that his counsel was going to seek an extension of time, filed a pro se response to

the motion to dismiss. This prompted petitioner’s counsel to write petitioner and

chastise him for filing pro se pleadings while being represented by counsel, and

prompted the government to move to strike the pro se pleading. The court

subsequently granted the motion to strike.

       On February 25, counsel filed a response to the motion to dismiss, which he

asked be substituted for petitioner’s pro se response. On May 3 the magistrate

1
       Petitioner contends that the record filed by the State is not complete
because it is missing a transcript of the hearing held by the state court in
post-conviction proceedings. Petitioner urged his counsel to bring this omission
to the attention of the district court, but counsel did not. Petitioner continues to
argue that, because he was not present at the hearing, he must be given an
opportunity to review the transcript in order to fully address the State’s arguments
against habeas relief.

                                            -3-
judge issued a report recommending that the motion to dismiss be denied, which

the district court later adopted. Meanwhile, however, the court set a briefing

schedule on the merits of the habeas petition giving petitioner until June 2 to file

an opening brief.

      On May 25, counsel for petitioner filed a motion for extension of time,

seeking an additional six months to file an opening brief. In his motion, counsel

said that petitioner wanted to participate in the strategy and drafting of the brief

and counsel was trying to negotiate this with him, that petitioner had been

transferred out of state and counsel was still trying to locate him, and that counsel

needed more time to review the voluminous state court record. By order of

June 1, the district court generously granted counsel the requested extension,

giving him until December 2 to file his opening brief.

      On November 4, however, counsel filed a motion to withdraw. Counsel

stated that he had been in the process of preparing the opening brief, but that

petitioner wanted to pursue a strategy with which counsel did not agree. Counsel

also said that petitioner had not responded to his last two letters. Counsel

therefore asked to withdraw on the ground that he and petitioner were unable to

agree on a common strategy. Alternatively, counsel asked to withdraw on the

ground that the representation would result in an unreasonable financial burden

on him if the court were to enforce the statutory cap for compensation under the

                                          -4-
Criminal Justice Act. Notably, counsel’s motion did not conform to the District

of New Mexico’s Local Civil Rule 83.8(b), which requires that the attorney serve

a copy of the motion to withdraw on his client and that he give notice in the

motion that the client has to file and serve any objection within fourteen days or

be deemed to have consented to the motion. Counsel did neither.

      By order entered November 10, the district court granted counsel’s motion

to withdraw, and ordered petitioner to proceed pro se. There is no indication in

the record, however, that this order was served on petitioner. Nothing further

transpired in the case until June 28, 2000, when the district court entered an order

sua sponte dismissing the case for failure to prosecute.

      On June 30, petitioner filed a second habeas petition that was virtually

identical to the first, which the district court docketed as a new case. On July 11,

petitioner filed a motion in the first action seeking to vacate the order of dismissal

and consolidate the two habeas actions.   2
                                               In his motion, petitioner said that he was

not served with a copy of his counsel’s motion to withdraw, but that he did learn

of the withdrawal by letter from counsel of December 13, 1999. Petitioner said

he assumed that when his counsel withdrew, the court would appoint new counsel

to represent him, as it had done when the Federal Public Defender withdrew.

Petitioner also stated that he was unaware that the court had ordered him to

2
      This motion qualified as a tolling motion under Fed. R. App. P. 4(a)(4).

                                              -5-
proceed pro se, because he never received a copy of the court’s November 10

order. Finally, petitioner said his transfer from New Mexico in May 1999

caused him to lose all his legal materials, which he was not able to recover until

January 2000. Petitioner noted that as soon as he learned of the court’s dismissal

of his habeas petition, he took immediate corrective action by refiling it. He

therefore asked that the court vacate its order of dismissal and consolidate the two

habeas petitions.

      The district court denied petitioner’s motion to vacate on September 8,

2000, stating only that “the motion is not well taken.” R., Vol. I, Doc. 41

(No. 00-2347). Thereafter, petitioner filed further objections with the district

court, to which he attached correspondence between himself and his attorney to

show his understanding of events. Petitioner objected to the manner in which his

counsel was permitted to withdraw without first giving him notice and an

opportunity to object. Petitioner also objected to the court’s dismissal of his

petition without prior notice, especially since he had not been served with a copy

of the court’s order directing him to proceed pro se and had previously been

chastised for filing a pleading pro se while being represented by counsel and had

the pleading stricken. Petitioner filed a timely appeal from the court’s dismissal

of his habeas petition and denial of his motion to vacate, which we docketed as

No. 00-2347.

                                         -6-
      Meanwhile, the district court went forward on petitioner’s second habeas

petition. The State moved to dismiss this petition, arguing that it was untimely

because it was filed beyond the one-year statute of limitations set forth in

28 U.S.C. § 2244(d). Petitioner filed motions seeking the appointment of counsel

and access to various legal materials, which the district court did not address.

Based on this court’s holding in   Petrick v. Martin , 236 F.3d 624, 629 (10th Cir.

2001), that the limitations period in § 2244(d)(2) is tolled during the pendency of

a federal habeas proceeding, the magistrate judge initially concluded that the

second petition was timely. After the Supreme Court effectively overruled

Petrick in Duncan v. Walker , 533 U.S. 167, ___, 121 S. Ct. 2120, 2129 (2001),

by holding that a federal habeas petition “is not an ‘application for State

post-conviction or other collateral review’” that will toll the statute of limitations

under § 2244(d)(2), the State renewed its motion to dismiss. The magistrate judge

agreed that the petition was untimely and recommended that it be dismissed.

      Petitioner filed timely objections to the magistrate judge’s report, arguing

that under the particular circumstances of his case, the court should toll the

statute of limitations. Among other things, petitioner noted that if the court did

not either treat his second petition as relating back to the filing date of his first

petition, or equitably toll the statute of limitations, then the dismissal of his first

petition would effectively be a dismissal with prejudice, because he could not

                                           -7-
possibly file another timely petition. The district court adopted the magistrate

judge’s recommendation and dismissed the petition as untimely without

addressing petitioner’s equitable tolling argument. Petitioner filed a timely

appeal, which we docketed as No. 01-2304.

       Because petitioner’s two appeals are closely related, we will consider them

together in the interests of judicial economy. Before petitioner may proceed in

either appeal, however, he must first obtain a certificate of appealability (“COA”)

from this court by making a “substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). To make this showing, petitioner must

demonstrate that “reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.”

Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). Where, as

here, the district court denies a habeas petition on procedural grounds without

reaching the underlying constitutional claims, the petitioner is not entitled to

a COA unless he can show both that “jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district court was correct

in its procedural ruling.”   Slack , 529 U.S. at 484.

                                            -8-
         Our review of the underlying merits of petitioner’s claims is necessarily

limited because petitioner’s actions were dismissed before he had an opportunity

to develop the factual and legal bases of his claims in the district court, the

district court did not rule on the merits of those claims, and the parties have not

briefed the merits on appeal. Therefore, “[w]e will only take a quick look at the

federal habeas petition[s] to determine whether [petitioner] has facially alleged

the denial of a constitutional right.”    Gibson v. Klinger , 232 F.3d 799, 803

(10th Cir. 2000) (quotations and original alterations omitted). After reviewing

the habeas petitions, we conclude that petitioner has satisfied the first prong of

the COA analysis, because “jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional right,”   Slack ,

529 U.S. at 484. Specifically, we conclude that at least one of petitioner’s claims,

which include that the evidence was insufficient to convict and that the jury

instructions erroneously shifted the burden to petitioner to disprove the existence

of a material element, debatably states a claim for the denial of a constitutional

right.

         We turn, then, to the second prong of the COA analysis, which concerns the

procedural issues raised by each appeal. In appeal No. 00-2347, petitioner raises

four procedural issues: whether the court erred in allowing petitioner’s counsel to

withdraw where the motion to withdraw and the order permitting withdrawal were

                                              -9-
not served on petitioner; whether the court erred in dismissing the action as a

sanction for petitioner’s failure to prosecute where the order directing petitioner

to proceed pro se was not served on petitioner; whether the court erred in denying

petitioner’s motion to vacate the dismissal and consolidate the two habeas

actions; and whether the district court should have tolled the limitations period

during the pendency of petitioner’s first federal habeas petition. In appeal

No. 01-2304, petitioner raises the same four issues, as well as two other similar

issues: whether petitioner adequately complied with the statute of limitations in

§ 2244; and whether the district court erred in not consolidating the two habeas

actions.

       Based upon our review, we conclude that petitioner has also satisfied the

second prong of the COA analysis, because “jurists of reason would find it

debatable whether the district court was correct in its procedural ruling[s],”   Slack ,

529 U.S. at 484. Specifically, we conclude that it is debatable whether the court

was correct in 1) dismissing the first habeas proceeding for failure to prosecute,

2) denying petitioner’s motion to vacate the dismissal and consolidate the two

habeas actions, and 3) not considering whether to equitably toll the limitations

period for the second petition during the pendency of the first habeas proceeding.

Therefore, we grant petitioner a COA on these three procedural issues.

                                            -10-
       A district court may sua sponte dismiss an action for failure to prosecute

without prior notice to the parties under appropriate circumstances.          Link v.

Wabash R.R. Co. , 370 U.S. 626, 633 (1962). We review the dismissal of an

action for failure to prosecute under an abuse of discretion standard.            Joplin v.

Southwestern Bell Tel. Co. , 671 F.2d 1274, 1275 (10th Cir. 1982). “To be sure,

such a dismissal is a drastic sanction. It is to be applied only in extreme

situations.” Stanley v. Continental Oil Co.      , 536 F.2d 914, 916 (10th Cir. 1976).

To determine whether the district court abused its discretion in dismissing

petitioner’s habeas action under the circumstances presented here, we must

examine the procedural history of the case.          Joplin , 671 F.2d at 1275.

       The procedural history discussed above shows that the district court was

very accommodating to petitioner and his counsel. The court appointed counsel

to represent petitioner when he requested it; the court then appointed new counsel

when the first counsel had a conflict of interest; and the court granted new

counsel several extensions of time to file required pleadings, including one

extension of six months. The court is to be commended for its accommodation of

petitioner. Nonetheless, given this history of accommodation, it is not surprising

that petitioner expected the court to appoint new counsel to represent him once

his counsel withdrew, especially because he had made it clear to his counsel that

                                              -11-
he did not wish to proceed pro se.   3
                                         Further, because nothing in the record before

us suggests that petitioner was not being truthful when he stated that he did not

receive a copy of the court’s order directing him to proceed pro se, we must

assume that he was never disabused of the reasonable expectation that new

counsel would be appointed to represent him.

       When we couple petitioner’s expectation that new counsel would be

appointed with the fact that the one time petitioner did file a pro se pleading

while he was represented by counsel, he was chastised for doing so and his

pleading was stricken, we cannot say that petitioner’s failure to file a pro se

merits brief was either grossly negligent or tantamount to nonfeasance.      See id.

at 1276. Nor is there any evidence in the record of “intentional delay,

contumaciousness, or bad faith on the part of [petitioner].”     Id. Moreover, as

soon as petitioner learned that the court had dismissed his action for failure to

prosecute, he immediately refiled his habeas petition and sought relief from the

judgment, explaining why he had not proceeded with his case pro se.

       Under these circumstances, we conclude that the district court abused its

discretion in dismissing petitioner’s habeas action for failure to prosecute and in

3
      That the district court also understood petitioner’s desire for continued
representation by counsel is evident from its statement in the order allowing
counsel to withdraw that petitioner had not waived the appointment of counsel.

                                            -12-
not reinstating it when petitioner explained the reasons for his inaction. On

remand, the district court should reinstate the first habeas petition.

       Petitioner also challenges the district court’s dismissal of his second habeas

petition as untimely. The Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), imposed a one-year limitation on a prisoner’s right to apply for habeas

relief, which generally runs from the date the prisoner’s conviction became final.

28 U.S.C. § 2244(d)(1)(A). For state prisoners like petitioner whose convictions

became final before AEDPA’s enactment on April 24, 1996, we recognized

a one-year grace period within which they were required to file their habeas

petitions. Hoggro v. Boone , 150 F.3d 1223, 1225-26 (10th Cir. 1998). This

one-year period is subject to both statutory and equitable tolling.       See 28 U.S.C.

§ 2244(d)(2); Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998).

       At the time petitioner filed his first habeas petition, there were

approximately seventeen days remaining in the one-year limitations period. His

first petition was pending for approximately two and one-half years when it was

dismissed without prejudice. Petitioner filed his second petition two days after

the first petition was dismissed. Therefore, his second petition was untimely

unless the limitations period was tolled during the pendency of the first petition.

The district court, relying on the Supreme Court’s opinion in         Duncan v. Walker ,

ruled that the pendency of the first petition did not toll the limitations period.

                                            -13-
Duncan , however, speaks only to statutory tolling under § 2244(d), and does not

address equitable tolling.

       We have held that equitable tolling is available “only in rare and

exceptional circumstances . . . [such as] when a prisoner is actually innocent,

when an adversary’s conduct–or other uncontrollable circumstances–prevents a

prisoner from timely filing, or when a prisoner actively pursues judicial remedies

but files a defective pleading during the statutory period.”   Gibson , 232 F.3d

at 808 (quotation and citations omitted). Petitioner argued that the circumstances

here were of a similar exceptional nature, so as to warrant equitable tolling of the

limitations period. It does not appear from the district court’s order that it

considered this argument. Therefore, we will reverse the dismissal of petitioner’s

second petition and remand to the district court so that it can consider whether

equitable tolling is warranted here.

       On remand, the district court should consolidate the two habeas

proceedings in the interests of judicial economy. Not only are the two habeas

petitions virtually identical, but the parties filed additional pleadings in the

second action that they did not file in the first action because it was prematurely

dismissed. Consolidation would obviate any need for the parties to refile those

pleadings in the first action. The district court should then proceed expeditiously

to set an appropriate briefing schedule on the merits, bearing in mind that

                                            -14-
petitioner has had quite a lot of time to ponder his arguments. The court should

also consider whether to appoint new counsel to represent petitioner, a matter on

which we express no opinion. Further, the court should consider whether

a transcript of the state post-conviction proceedings is necessary to petitioner’s

claims and, if so, should determine whether a transcript or a tape recording of

those proceedings can reasonably be made available to petitioner.

      In addition to his application for COA, petitioner has filed several motions

with this court. In particular, petitioner has filed a motion to consolidate his two

appeals, a motion for appointment of counsel or access to a law library, a motion

for sanctions, and a notice of and objection to change of address, which we have

construed as an objection to transfer. We grant petitioner’s motion to consolidate

the two appeals for procedural purposes only and deny the remainder of

petitioner’s motions.

      We previously denied petitioner’s motion for appointment of counsel by

separate order. Petitioner’s alternative motion for access to a law library

complains about the lack of access to legal materials in the New Mexico

penitentiary. Petitioner, however, does not allege any prejudice flowing from the

alleged denial of access to legal materials in New Mexico.   See Lewis v. Casey ,

518 U.S. 343, 351 (1996) (requiring inmate to “demonstrate that the alleged

shortcomings in the library or legal assistance program hindered his efforts to

                                          -15-
pursue a legal claim”). Further, petitioner has been transferred to a prison in

Virginia and is no longer in the New Mexico prison system. Therefore, any

complaint about the continued denial of legal materials in the New Mexico prison

system is moot.

      Petitioner’s motion for sanctions and his objection to transfer are related.

Petitioner objects to respondent warden having transferred him out of New

Mexico during the pendency of a habeas appeal without first obtaining court

approval, as required by Fed. R. App. P. 23(a), and he seeks sanctions against

respondent for doing so. Specifically, petitioner asks that respondent warden be

held in contempt, that he be ordered to return petitioner to New Mexico, and that

he be enjoined from transferring petitioner out of New Mexico in the future. In

his response to petitioner’s motion, respondent warden admits that he transferred

petitioner out of New Mexico without first seeking court approval and apologizes

for this failure, but asks that he not be ordered to transfer petitioner back to

New Mexico for security reasons. Based on the reasons given by respondent

warden for petitioner’s transfer to Virginia and the lack of any prejudice

demonstrated by petitioner as a result of his transfer, we conclude that the

relief sought by petitioner in his motion for sanctions is not warranted at

this time.

                                          -16-
      In conclusion, petitioner’s application for COA in No. 00-2347 is

GRANTED, and the judgment of the district court is REVERSED and the matter

REMANDED for further proceedings consistent with this order and judgment.

Petitioner’s application for COA in No. 01-2304 also is GRANTED, and the

judgment of the district court is REVERSED and the matter REMANDED for

further proceedings consistent with this order and judgment. Petitioner’s motion

for access to a law library, his objection to transfer, and his motion for sanctions

in No. 00-2347 are DENIED. Petitioner’s motion to consolidate appeal

No. 00-2347 and appeal No. 01-2304 is GRANTED insofar as the appeals are

consolidated for procedural purposes only.

                                                     Entered for the Court

                                                     Stephen H. Anderson
                                                     Circuit Judge

                                         -17-


20 Ariz. App. 77 (1973)
510 P.2d 388
Elmer L. ROWE, Petitioner,
v.
The INDUSTRIAL COMMISSION of Arizona, Respondent, Motorola, Inc., Respondent Employer, Motorola, Inc., Respondent Carrier.
No. 1 CA-IC 772.
Court of Appeals of Arizona, Division 1, Department A.
June 5, 1973.
*78 Chris T. Johnson, Phoenix, for petitioner.
William C. Wahl, Jr., Chief Counsel, The Industrial Commission of Ariz., Phoenix, for respondent.
Evans, Kitchel & Jenckes, P.C., by Stephen W. Pogson, Phoenix, for respondent Employer-respondent Carrier.
STEVENS, Judge.
The Industrial Commission of Arizona entered its award in the above matter on 7 February 1972. The petitioner, Elmer L. Rowe, who is the injured employee, filed a timely petition for a writ of certiorari to review the lawfulness of the award. Motorola, Inc., a self-insured employer, likewise addressed a petition for a writ of certiorari to the same award. The two petitions were consolidated in this single cause and have been processed under the above caption.
The industrial injury here in question was sustained on 3 October 1969. On that date the petitioner received an acid burn on his right forearm and he also inhaled some acid fumes. The acid fumes brought about a sinusitis problem for which the petitioner was treated by Neil O. Ward, M.D., from 20 October 1969 until he was discharged from that treatment on 27 February 1970. The matter of the sinusitis problem has been withdrawn and is not of concern in this opinion. The acid burn on the forearm is the basis for our current concern. The acid burn led to an ulcer on the forearm.
On 5 November 1968, while working for a different employer, insured by the State Compensation Fund, the petitioner sustained a back injury. That claim was still open and the petitioner was still receiving compensation in relation thereto when he secured his employment with Motorola.[1]
On 20 May 1971 Motorola issued its notice of claim status based upon a 25 March 1971 medical report submitted by Jerry W. Bains, M.D. The notice of claim status terminated the temporary compensation for the acid burn as of 14 May 1971 and terminated his medical benefits for the acid burn as of 25 March 1971. This notice of claim status laid the groundwork for the hearing and the award now in question.
The award of The Industrial Commission approved the award of the hearing officer which suspended the petitioner's compensation from 3 June 1971 through 24 September 1971. 24 September 1971 was the date of the second installment of the hearing arising out of Motorola's notice of claim status of 20 May 1971. The petitioner urges that there should have been no suspension or, at the most, that the suspension *79 should not have been for a greater period than 3 June 1971 to 25 June 1971. The petitioner also urges that the suspension of compensation did not authorize Motorola to suspend the payment of medical benefits. On the other hand, Motorola urges that both compensation and medical benefits should have been suspended as of 25 March 1971 and that neither should have been restored.
The basis of the suspension of compensation is found in A.R.S. § 23-1026, subsec. E which reads:
"E. Upon appropriate application and hearing, the commission may reduce or suspend the compensation of an employee who persists in unsanitary or injurious practices tending to imperil or retard his recovery, or who refuses to submit to medical or surgical treatment reasonably necessary to promote his recovery."
and in A.R.S. § 23-1027 which reads:
"No compensation shall be payable for the death or disability of an employee if his death is caused by, or insofar as his disability may be aggravated, caused or continued by an unreasonable refusal or neglect to submit to or follow any competent and reasonable surgical treatment or medical aid."
The hearing officer's award, which was approved by The Industrial Commission award of 7 February 1972, includes the following findings:
"18. In the instant case, the preponderance of the evidence is that the applicant's continuing medical difficulties were the result of his own unsanitary or injurious practices and/or his unreasonable refusal or neglect to follow reasonable medical advice.
* * * * * *
"26. The reasons for the applicant's continuing medical difficulties are his injurious practices and/or his unreasonable refusal or neglect to follow competent medical treatment. A.R.S. §§ 26-1026E, 1027.
"27. The applicant has failed to sustain his burden of proof that his continuing difficulties were not due to his own injurious practices and/or his negligence or refusal to follow the advice of his doctors without reasonable grounds for such refusal."
It is noted that the hearing officer did not expressly find that the petitioner's "unsanitary practices", or that the petitioner's "injurious practices", or that an "unreasonable refusal" by the petitioner "to follow reasonable medical advice", or that an "unreasonable * * * neglect to follow reasonable medical advice" in relation to any medical care or ulcer problem was the basis for the suspension. The hearing officer, without specification, combined the several grounds for suspension found in A.R.S. § 23-1026, subsec. E and § 23-1027. The hearing officer did not pinpoint any one or more of these alternatives as to the time or to the cause of the petitioner's slow recovery.
In Hamlin v. Industrial Commission, 77 Ariz. 100, 267 P.2d 736 (1954), the Arizona Supreme Court stated that:
"In making this decision [to suspend benefits] the Commission cannot act without sufficient facts to warrant its conclusion." 77 Ariz. at 104, 267 P.2d at 739.
In the Hamlin case the Supreme Court reviewed the medical evidence and concluded that Hamlin was not unreasonable in his refusal to submit to further back surgery. The Supreme Court further stated that:
"Each case must be determined upon the particular facts." 77 Ariz. at 105, 267 P.2d at 739.
Thus, it becomes necessary to review the extensive problems which were experienced by the petitioner.
Immediately following the 3 October 1969 acid burn the petitioner was referred by Motorola to F.R. Rabe, M.D. Dr. Rabe sent the petitioner to Carl Yarbrough, M.D., a dermatologist. Dr. Yarbrough treated the petitioner from 13 November 1969 to *80 5 January 1970. Dr. Yarbrough's experience was not dissimilar to that of later physicians in that the ulcer resulting from the burn would improve and then retrogress.
The doctor prescribed a Lassar's paste which the petitioner found to be very irritating to the skin. Petitioner understood his instructions to be to remove the paste with oil before reporting to the doctor's office for follow-up visits. The doctor testified that he instructed the petitioner to not wrap the wound. The petitioner did wrap the wound. Petitioner testified that the doctor's nurse advised that he might so do if the pain became too severe. After the ulcer appeared to be well on the way to healing it broke down. Dr. Yarbrough then hospitalized the petitioner to apply the same treatment under hospital supervision. The petitioner could not stand the hospital confinement and when released from the hospital the ulcer again appeared to be well on the way to healing. After the petitioner's release from the hospital the ulcer again broke down. The doctor expressed the opinion that the wrapping of the wound aggravated the ulcerous condition.
The doctor testified that part of the petitioner's problem was his failure to follow directions. He expressed the opinion that the petitioner did not intentionally, maliciously, or with purposeful intent aggravate the site of the injury. The doctor concluded his testimony stating:
"I just don't think I was helping him any, and I didn't think that I could get with him enough that I was going to help him."
Thereafter Dr. Rabe referred the petitioner to Eugene Leibsohn, M.D., a dermatologist. Under Dr. Leibsohn's care the ulcer would give the appearance of being substantially healed and would then break down. At times the pain was so great the petitioner called the doctor at night. The doctor testified that he questioned the petitioner closely about any activity which would aggravate the condition and that he was satisfied that the petitioner was following the doctor's instructions. The doctor could give no medical reason for the failure of the ulcer to ultimately heal.[2]
In December 1970 Dr. Leibsohn felt that possibly plastic surgery would be the answer and the petitioner was sent to Dr. Bains.
After certain preliminary surgical procedures, Dr. Bains performed a skin graft on 7 January 1971. During the healing process the petitioner was sent to Charles L. Echols, Jr., M.D., a neurologist. During one of Dr. Echols' examinations he noted a marked change for the worse in the appearance of the skin graft. On 25 March 1971 Dr. Bains wrote a report which was the basis of the 20 May 1971 notice of claim status. The report expressed the opinion that the retrogression in ulcerous condition was a factitial wound, that is, self-inflicted and other than natural. This the petitioner denied. The doctor suggested that any further treatment not be an industrial responsibility. The doctor nevertheless performed another skin graft on 26 April.
Dr. Bains testified:
"A I thought the wound was factitial, self-imposed. I confronted Mr. Rowe with this and he denied it. I stated so in my records and I still have that opinion.
"Q Was there anything that Mr. Rowe told you that gave you that opinion or was that just from your examination?
"A It was from several things throughout the case history. There is no proof, he did not state anything in the history, no, sir.
* * * * * *

*81 "Q Did you say the original graft at one point was completely healed?
"A There were two areas of about two millimeters in diameter which mysteriously would not heal, but to all intents and purposes he had a healed wound for six weeks, from the time of the grafting until this mysterious disease appeared in the center of the graft.
"Q Do you have any explanation for the recurrence of these new disease areas?
"A I have an opinion but no explanation.
"Q By way of hypothesis would such a recurrence of the diseased or ulcerated area result from severe scratching?
"A No, this does not appear to be that type wound. This was a blistering which progressed through the same type wound when I first saw him, the same appearance of the skin, a white thick tan color.
"Q This was on the surface of the grafted area?
"A This was in the center of the grafted area with some surrounding normal skin, uninvolved skin.
"Q It was on the basis of that alone that you felt that this had been a factitial situation or were there other factors?
"A Taking this into consideration of what we discussed at length of 18 months down from the time of the burn until the declaration of the third degree loss at the location of the new area which was in the center of the graft, the appearance of it appeared to be the same as I saw him for originally, all of which to me added up to this and again this is no proof, there is no way you can prove this sort of thing but that is my opinion. I realize I am sticking my neck out but on the other hand I have treated patients many times for factitial wounds and I suppose being sensitized to the problem makes it easy to arrive at a conclusion."
On 3 June Dr. Bains suggested that the petitioner see another doctor. Dr. Bains recognized that the petitioner was then in need of further medical care.
The petitioner returned to Dr. Leibsohn begging for help. Dr. Leibsohn testified that at that time the petitioner's condition was such that something had to be done.
On 25 June 1971 the petitioner first saw Eugene Migray, M.D., a plastic surgeon. Dr. Migray performed a Pedicle flap on 26 July 1971. In the process the forearm is bound to the abdominal wall for about four weeks. Although there were some unpleasant problems in relation to the graft, the graft appeared to be substantially successful with a supplemental pinch graft which was performed on 15 September 1971. The petitioner appeared to be making good progress at the time the doctor testified on 24 September 1971. [This is the date the hearing officer selected for the termination of the suspension of compensation.] The doctor testified that while it is rare, skin grafts do break down. He further testified:
"A. Yes, but it proves also he has a very bad blood supply and bad tendency for healing."
In the area of the matter of the petitioner's cooperation, Dr. Migray testified:
"Q. Doctor, did you ever have the feeling that Mr. Rowe was not following your orders in the care of his arm?
"A. He didn't really not follow the orders, but he is the type of person that is difficult to treat. He asks for more pain medication. He adjusts bandage and so on, but in general he followed my advice.
"Q. You say he adjusted his bandage. Were there occasions when you noted that the bandage had been adjusted between the time that you changed the bandages?
"A. Yes, but he said it was necessary, that it was falling off. It was not without reason."
*82 We quote portions of the petitioner's testimony:
"* * * When I went to the doctor and stuff, he asked me why I did it. I told him because I couldn't stand the stuff. He says, `If you can't stand it all the time, try to do it, you know, part time. Leave it unwrapped then if it gets to hurting so bad.' He said to go ahead and wrap it.
* * * * * *
"Q. You have heard some testimony by Dr. Yarbrough and Dr. Bains that they didn't feel that you were cooperating one hundred percent. What is your feeling on that?
"A. I did everything I could. I did everything I could. If I had to change anything that they told me to do, I called the office and asked the office first. I was going to get shots and everything else all the time at the hospital, the emergency room and everything else for this pain.
* * * * * *
"Q. Mr. Rowe, did you ever intentionally do anything to aggravate the condition of your arm?
"A. No, sir.
"Q. Did you ever unintentionally do anything, as far as you know, to aggravate your arm condition?
"A. No, sir.
"Q. Have you ever unintentionally bumped your arm against anything that seemed to make it flare-up?
"A. Not unless I did it in my sleep.
* * * * * *
"A. * * * The only thing I have got to say as to what Dr. Migray said, which I have known it for quite a few years. The type of blood I have and stuff, which I forget the type it is, I do not heal very well. If I cut a finger or something, it takes as long as three to six months to heal a little cut. I have had this on my arm right there now for almost seven months. Why isn't it healed? This is my only answer. I don't know."
From an overall review of the record, we find that the petitioner was a man with a very severe ulcer problem which was exceedingly painful. He had been told that he might sustain the loss of his arm if the ulcer was not cured. He was not the easiest patient to care for, and not all patients are. The exact period of the duration of the compensation arising out of the November 1968 back injury is not established in the record. The record clearly establishes that the petitioner did not purposely fail to follow the details of the advice of his doctors. It appears that the petitioner was not dependent upon temporary compensation related to the ulcer. He was 28 years of age at the time of the acid burn. There is no proof of self-inflicted aggravation of the ulcer. The continuation of the ulcer, the response to medical care and the recurring breakdowns at a time when healing appeared to be imminent defied the minds of several qualified specialists. Dr. Bains called it "mysterious".
We hold that the suspension of compensation was not reasonably supported by the medical evidence and that this case falls within the principles of Hamlin, supra. We need not answer the question as to whether the suspension of compensation prior to the closing of an industrial claim carries with it the suspension of medical, surgical and hospital benefits as defined by A.R.S. § 23-1062. The cases of Pressley v. Industrial Commission, 73 Ariz. 22, 236 P.2d 1011 (1951) and Stout v. Industrial Commission of Arizona, 12 Ariz. App. 211, 469 P.2d 103 (1970), are of interest but do not answer this particular question.
The award is set aside.
DONOFRIO, P.J., and OGG, J., concur.
NOTES
[1]  The petitioner's average monthly wage at the time of his November 1968 back injury was higher than the average monthly wage paid to him by Motorola. The two carriers entered into an agreement as to the share of the petitioner's temporary compensation which each would pay. No issue is presented as to this agreement as it did not affect the petitioner's overall temporary compensation payments.
[2]  On 13 October 1970 the petitioner, while being treated for the ulcer, was hospitalized in relation to his November 1968 back injury. We quote from the report of Howard M. Johnson, M.D.:

"Mr. Rowe was operated on on 10-20-70, and the protrusion of the disc material at lumbosacral interspace found. He has had a discectomy at this level."


Opinion issued November 2, 2006

In The
Court of Appeals
For The
First District of Texas

NO. 01-04-01091-CV
____________

GEORGE C. BROWN, Appellant

V.

 LUCY TRAYLOR, DARRYL KEITH WALKER, PAUL WAYNE
WALKER, ANTHONY C. WALKER, TERRY L. WALKER, and JAMES E.
WALKER, Appellees

On Appeal from Probate Court No. 4
Harris County, Texas
Trial Court Cause No. 323,033-401

SUPPLEMENTAL OPINION ON REHEARING
          On April 27, 2006, the Court issued its opinion and judgment, which affirmed
the lower-court judgment in part, reversed it in part with respect to the award of
attorney’s fees, and remanded the cause for a determination of certain matters relating
to attorney’s fees.  Appellant, George C. Brown (“George”), has moved for rehearing
and for en banc reconsideration.  The panel denies the motion for rehearing.
Furthermore, a majority of the justices of this Court deny the motion for en banc
reconsideration.  The panel’s April 27, 2006 opinion and judgment remain unchanged
by this supplemental opinion, which we issue to address very briefly the opinion
dissenting from the denial of en banc reconsideration.
          With the exception of the dissenting justice’s arguments relating to the
publication of a will, virtually all of the dissenting justice’s arguments fall into one
of the following categories: (1) unassigned, non-fundamental error—raised neither
in appellant’s opening brief, in his untimely reply brief,
 or in his motions for
rehearing or for en banc reconsideration—which we are prohibited from considering;
(2) non-fundamental-error challenges that were not preserved below;
 or (3)
credibility determinations, which we cannot make in a factual-sufficiency review.

As for the dissenting justice’s arguments concerning publication, we have already
explained why the self-proving-affidavit provision of the Probate Code, upon which
the dissenting justice relies, does not apply to a will (like this one) that does not
contain such an affidavit.  See Brown v. Traylor, No. 01-04-01091-CV, slip op. at
31–32 n.24, 2006 WL 1098265, at *11 n.24 (Tex. App.—Houston [1st Dist.] Apr. 27,
2006, no pet. h.) (“The purpose of the self-proving affidavit is to relieve the will’s
proponent of the burden of presenting witnesses to prove the will.  Its purpose is not,
however, ‘to add anything to the list of formalities required for the execution of a
will.’  Therefore, the requirement that a self-proving affidavit contain the witnesses’
averment that the testator published the will to them does not alter the other
provisions of section 59(a), which do not require publication of the will itself.”)
(citations omitted).

Tim Taft
Justice

Panel consists of Justices Taft, Higley, and Bland.

Appellant moved for rehearing.  The panel denied the motion for rehearing.

A majority of the justices of the Court voted to deny appellant’s motion for en banc
reconsideration.  See Tex. R. App. P. 41.2(c).

Justice Keyes, dissenting from denial of en banc reconsideration.


People v Joseph (2019 NY Slip Op 05565)

People v Joseph

2019 NY Slip Op 05565

Decided on July 10, 2019

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 10, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
SYLVIA O. HINDS-RADIX
VALERIE BRATHWAITE NELSON
ANGELA G. IANNACCI, JJ.

2017-00456

[*1]The People of the State of New York, respondent,
vWalter Joseph, appellant. (S.C.I. No. 10271/16)

Paul Skip Laisure, New York, NY (Lynn W. L. Fahey of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jodi L. Mandel of counsel; Robert Ho on the brief), for respondent.

DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (John T. Hecht, J.), rendered December 16, 2016, convicting him of petit larceny, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.
ORDERED that the judgment is affirmed.
We are satisfied with the sufficiency of the brief filed by the defendant's assigned counsel pursuant to Anders v California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel's application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v Paige, 54 AD2d 631; cf. People v Gonzalez, 47 NY2d 606).
RIVERA, J.P., HINDS-RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


544 U.S. 920
BAXTER INTERNATIONAL INC. ET AL.v.ASHER ET AL.
No. 04-763.
Supreme Court of United States.
March 21, 2005.

1
C. A. 7th Cir. Certiorari denied. Reported below: 377 F. 3d 727.