                                In the

      United States Court of Appeals
                   For the Seventh Circuit
                       ____________________
No. 15‐2235
KEVIN J. LOVELESS,
                                                  Plaintiff‐Appellant,

                                   v.

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
                                                  Defendant‐Appellee.
                       ____________________

          Appeal from the United States District Court for the
      Northern District of Indiana, Hammond Division at Lafayette.
            No. 4:14‐cv‐36— Joseph S. Van Bokkelen, Judge.
                       ____________________

    ARGUED DECEMBER 16, 2015 — DECIDED JANUARY 13, 2016
                 ____________________

    Before MANION, KANNE, and WILLIAMS, Circuit Judges.
    KANNE, Circuit Judge. Kevin Loveless applied for Disabil‐
ity  Insurance  Benefits  claiming  that  he  could  not  work  be‐
cause  of  a  shoulder  impairment,  diabetes,  and  pancreatitis.
An  Administrative  Law  Judge  concluded,  however,  that
Loveless  could  perform  light  work  with  restrictions.  The
Appeals Council and the district court upheld that determi‐
2                                                       No. 15‐2235

nation, but Loveless insists that the ALJ erred by minimizing
the  opinion  of  his  personal  physician  and  disbelieving  his
own testimony about the limiting effects of his impairments.
We reject these contentions.
                         I. BACKGROUND
    Loveless, who is now 56, has a long work history that in‐
cludes jobs as a warehouse worker, delivery person, restau‐
rant owner, and plumbing supply manager. In 2009 his per‐
sonal physician, Dr. John Cusack, referred Loveless to an or‐
thopedic  surgeon,  Dr. Peter Torok,  because  of  persistent
complaints  of  pain  in  his  right  shoulder  that  had  not  re‐
sponded to treatment including steroids, injections, physical
therapy,  and  anti‐inflammatory  medication.  Dr. Torok  per‐
formed  arthroscopic  surgery  in  September 2009  and  re‐
moved  a  bone  spur  from  Loveless’s  right  shoulder.  A  later
X‐ray did not show any abnormality, and Loveless returned
to his warehouse job around March 2010.
   Then  in  July 2010  Loveless  complained  to  Dr. Cusack
about “arm numbness,” “low back pain, leg pain from knees
up,”  “loose  stools,”  and  lethargy.  Dr.  Cusack’s  physical  ex‐
amination  did  not  identify  a  reason  for  Loveless’s  com‐
plaints,  but  a  blood  test  did  show  a  high  glucose  level.  Af‐
terward, Loveless continued working.
   In  December 2010  he  reinjured  his  right  shoulder  lifting
and  throwing  heavy  bags  at  work.  Dr. Torok  diagnosed  a
torn rotator cuff, and an MRI showed bone degeneration and
damage  to  the  cartilage,  muscles,  and  tendons  in  the  right
shoulder.  Dr. Torok  surgically  repaired  the  rotator  cuff  in
February 2011.  Two  weeks  after  that  operation,  Dr. Torok
noted after X‐rays that the incision was healing well and that
No. 15‐2235                                                          3

Loveless  was  “doing  great.”  Loveless  continued  to  regain
range of motion with decreasing pain, and by April 2011 he
was reporting that his shoulder pain was well controlled and
that he could elevate his right arm to 90 degrees.
     Loveless’s  recovery  was  interrupted  later  that  month
when he sought treatment at the emergency room after two
days  of  nausea,  vomiting,  and  abdominal  pain.  He  was  ad‐
mitted to the hospital and diagnosed with a number of alco‐
hol‐related conditions, including alcohol poisoning, alcohol‐
ic  pancreatitis,  and  alcoholic  hepatitis.  An  MRI  of  his  brain
showed minimal areas  of chronic ruptured or  clotted  blood
vessels but no other abnormality. During his hospitalization
Loveless  also  was  diagnosed  with  Type II  diabetes,  which
requires that he inject insulin daily. Loveless was discharged
after 17 days. Two months later, at the end of June 2011, he
was referred to a gastroenterologist and reported that he had
abstained from alcohol and lost 40 pounds since his hospital‐
ization.
    Two  weeks  after  that,  in  mid‐July,  Loveless  returned  to
Dr. Torok, the orthopedic surgeon, seeking an evaluation for
long‐term disability. Dr. Torok concluded that Loveless had
not  regained  full  range  of  motion  in  his  right  shoulder,  but
he noted that Loveless’s recovery had been hindered by his
hospitalization.  Dr. Torok  declined  to  declare  that  Loveless
had  reached  maximum  medical  improvement  until  he  had
completed two more months of physical therapy. That same
month Loveless also complained to Dr. Cusack about shoul‐
der pain and fatigue, but Dr. Cusack did not detect any issue
after  examination  and  recommended  that  Loveless  exercise
more.
4                                                      No. 15‐2235

     By  August 2011,  physical  therapists  were  noting  im‐
provement  as  Loveless  completed  exercises  with  fewer
breaks.  He  reported  mowing  the  lawn  with  minimal  shoul‐
der pain and said he had hung blinds and trimmed low tree
limbs.  He  also  was  using  his  right  arm  to  drive  except  for
steering to the right. Swinging a hammer was more difficult,
but he could manage a couple of swings with his right hand
before switching  to  both  hands.  That month Loveless could
lift 12 pounds to chest level, but in September he was able to
lift  16 pounds  to  chest  level,  his  shoulder  range  of  motion
was within functional limits, and his shoulder strength and
endurance had improved.
    Meanwhile,  in  mid‐September 2011,  Loveless  visited
Dr. Cusack  complaining  of  fatigue,  weakness,  and  glucose
levels  that  were  up  and  down,  but  generally  stable.
Dr. Cusack did not find anything wrong, however, and rec‐
ommended  that  Loveless  continue  monitoring  his  blood
sugar.  A  few  days  after  that,  when  Loveless  was  examined
again  by  Dr. Torok,  he  could  elevate  his  right  arm
160 degrees.  Dr. Torok  discharged  him  from  treatment  and
cleared him to work with permanent restrictions against lift‐
ing  more  than  10 pounds  overhead  and  20 pounds  overall.
Two weeks later, though, Loveless instead applied for disa‐
bility  benefits,  alleging  that  he  had  been  unable  to  work
since  January 2011  because  of  shoulder  surgeries,  diabetes,
and pancreatitis.
    A  state‐agency  physician,  Dr. J.V. Corcoran,  reviewed
Loveless’s  medical  records  and  opined  that  his  use  of  his
right  shoulder  was  limited  but  he  still  could  perform  light
work. Dr. Corcoran concluded that Loveless retained use of
his  right  hand  and  could  reach  occasionally  with  his  right
No. 15‐2235                                                           5

arm,  but  he  recommended  that  Loveless  never  reach  over‐
head with his right arm and that he not crawl or climb lad‐
ders, ropes, and scaffolds. Dr. Corcoran also concurred with
the  lifting  restrictions  imposed  by  Dr. Torok.  The  Social  Se‐
curity  Administration  then  denied  Loveless’s  application  in
early November 2011.
    The following month Loveless complained to Dr. Cusack
about frequent falls, numbness in his hands, and pain in his
knees  and  feet.  Dr. Cusack  ordered  another  MRI  of  Love‐
less’s  brain,  but  the  results  were  the  same  as  the  MRI  eight
months earlier.
    In  January 2012,  Dr. Torok completed  a private insurer’s
“physical  capabilities  evaluation.”  He  did  not  limit  Love‐
less’s ability to sit, stand, walk, or use his hands and feet for
repetitive  movements,  but  Dr. Torok  did  permanently  re‐
strict Loveless from lifting or moving more than 20 pounds.
Dr. Torok  opined  that  Loveless  could  perform  light  work,
which  the  insurer’s  form  defines  as  being  capable  of  fre‐
quently lifting and carrying 10 pounds and occasionally lift‐
ing 20 pounds.
   In  February 2012,  another  state‐agency  physician,
Dr. M. Brill,  reviewed  Loveless’s  file  and  agreed  with
Dr. Corcoran’s  opinion.  The  Social  Security  Administration
then denied Loveless’s application on reconsideration.
     Loveless  requested  a  hearing  before  an  ALJ.  Until  that
hearing his complaints to Dr. Cusack multiplied, with mixed
results. In March 2012 he reported pain in his right hand and
shoulder, and the doctor concluded that his range of motion
in  that  arm  was  reduced.  Then  in  May 2012  Loveless  com‐
plained  of  erratic  glucose  levels,  as  well  as  pain  in  both
6                                                       No. 15‐2235

shoulders. This time Dr. Cusack indicated that a physical ex‐
amination  had  produced  normal  results.  Yet  the  very  next
month, in  October 2012,  the doctor completed another  form
for  Loveless’s  private  insurer  and  said—in  contrast  with
Dr. Torok’s opinion from January—that Loveless could walk
but was unable to work because of chronic fatigue and pain.
Then in November Dr. Cusack’s exam results again were un‐
remarkable  after  Loveless  complained  of  unstable  glucose
levels and that “his shoulder is not better,” his “neck hurts,”
and he “can’t lift both arms.”
    Loveless  had  similar  complaints  when  he  next  visited
Dr. Cusack  in  January  2013,  nine  days  before  he  appeared
with his lawyer before the ALJ. The doctor’s progress notes
from this visit indicate that Loveless “can’t lift” and can only
raise his “shoulder” 90 degrees (presumably the right shoul‐
der, but the progress notes do not say). That day Dr. Cusack
also  completed  a  “medical  assessment”  form  asserting  that
Loveless  could  not  lift  more  than  5 pounds  with  his  right
arm, could not stand continuously for more than 15 minutes,
and  could  not  sit  more  than  30  minutes  continuously  or  90
minutes  total  during  an  8‐hour  work  day.  He  added  that
Loveless could not ever climb, crouch, or kneel and only oc‐
casionally could balance, stoop, or crawl. Dr. Cusack further
opined that Loveless could not use his hands except for oc‐
casional, simple grasping because of tingling and numbness.
Nor could Loveless tolerate, the doctor said, heat, humidity,
dust,  or  fumes,  and  he  could  not  work  around  heights  or
moving  machinery.  Dr.  Cusack  opined  that  it  was  reasona‐
ble  to  expect  Loveless  to  require  time  to  lie  down  and  rest
during the day to ameliorate the effects of pain and fatigue.
He opined that Loveless could be expected to miss, on aver‐
age, two to three days of work per month.
No. 15‐2235                                                          7

    Loveless  testified  before  the  ALJ  that  he  was  unable  to
work due to constant aching in his shoulders and neck, dis‐
comfort in his lower back from standing too long, and occa‐
sional tingling and numbness in his feet, fingers, and hands
that he attributed to diabetes and varying glucose levels. He
testified that turning his head in either direction aggravated
his  pain  and  that  he  could  look  down  for  only  5  to  10
minutes.  He  also  testified  that  he  had  fallen  about  10  times
since  his  hospitalization,  but  doctors  had  not  determined  a
reason  for  those  falls.  Loveless  said  he  could  attend  to  his
personal hygiene but had to sit in the shower. He didn’t as‐
sist with heavier housework like vacuuming, mopping, and
sweeping but did try to help his wife with the cooking and
laundry.  Loveless  noted  that  he  used  a  riding  lawn  mower
to  cut  the  grass,  but  even  that  was  difficult.  He  acknowl‐
edged driving to the hearing but said that typically he drives
only to medical appointments or to buy gas and groceries.
    The ALJ asked a vocational expert (“VE”) about jobs for a
person  of  Loveless’s  age,  education,  and  work  experience
who  could  perform  light  work  that  involved  no  use  of  the
dominant  right  arm  to  lift  more  than  10 pounds  overhead;
only  occasional  use  of  the  dominant  right  arm  to  reach  for‐
ward or overhead; no crawling or climbing of ladders, ropes,
or  scaffolds;  only  occasional  balancing,  stooping,  kneeling,
or  climbing  ramps  and  stairs;  and  no  exposure  to  uneven
terrain,  slippery  surfaces,  or  unprotected  heights.  The  VE
answered  that  work  as  a  dealer‐account  investigator,  park‐
ing lot cashier, and photofinishing counter clerk was availa‐
ble. The ALJ then directed the VE to assume the same indi‐
vidual but restricted to sedentary work. The VE replied that
jobs were available for food checkers, credit‐card clerks, and,
again, photofinishing counter clerks.
8                                                       No. 15‐2235

     The  ALJ  assessed  Loveless’s  claim  using  the  sequential
evaluation  process,  see 20  C.F.R.  § 404.1520,  and  concluded
that  he  was  not  disabled.  The  ALJ  found,  at  Step 1,  that
Loveless  was  insured  through  the  end  of  2015  and  hadn’t
engaged  in  substantial  gainful  activity  since  his  alleged  on‐
set; at Step 2, that Loveless suffers from diabetes and degen‐
erative  joint  disease  of  the  right  shoulder,  both  severe,  and
alcoholic pancreatitis, though not severe; at Step 3, that these
impairments, alone or in combination, did not meet or equal
a  listed  impairment;  at  Step 4,  that  Loveless  was  unable  to
perform his past relevant work; and, at Step 5, that he could
perform other available jobs.
     For  Steps 4  and  5,  the  ALJ  concluded  that  Loveless  had
the  residual  functional  capacity  to  perform  light  work  with
limitations: With his right arm he cannot lift overhead more
than  10 pounds;  with  either  arm  he  cannot  lift  more  than
10 pounds  frequently  or  20 pounds  occasionally;  he  cannot
stand,  walk,  or  sit  more  than  6 hours  total  in  an  8‐hour
workday;  he  cannot  crawl  or  climb  ladders,  ropes,  or  scaf‐
folds;  he  can  only  occasionally  reach,  balance,  stoop,  kneel,
crouch,  or  climb  ramps  and  stairs,  and  he  cannot  work  on
uneven  terrain,  slippery  surfaces,  or  unprotected  heights.
These restrictions are not as limiting as those recommended
in January 2013 by Dr. Cusack, whose opinion, the ALJ rea‐
soned, lacks support in the medical record and thus was en‐
titled  to  little  weight.  The  ALJ  also  concluded  that  several
factors undermined Loveless’s testimony concerning the se‐
verity  of  his  impairments,  including  his  daily  activities,  his
routine  and  conservative  medical  treatment  since  2011,  and
his earlier reports to physicians that he was experiencing no
pain or only minimal pain. The ALJ’s credibility finding in‐
corporates the agency’s standard boilerplate:
No. 15‐2235                                                         9

       After careful consideration of the evidence, the
       undersigned finds that the claimant’s medical‐
       ly determinable impairments could reasonably
       be expected to cause some of the alleged symp‐
       toms;  however,  his  statements  concerning  the
       intensity,  persistence,  and  limiting  effects  of
       those  symptoms  are  not  credible  to  the  extent
       they  are  inconsistent  with  the  residual  func‐
       tional capacity assessment below.
   The  Appeals  Council  denied  review,  making  the  ALJ’s
decision the final decision of the Commissioner. See Varga v.
Colvin, 794 F.3d 809, 813 (7th Cir. 2015).
                           II. ANALYSIS
    Loveless first argues that the ALJ should have given con‐
trolling,  or  at  least  greater,  weight  to  Dr. Cusack’s  opinion
from  January  2013,  since  that  opinion  reflects  the  doctor’s
most‐recent assessment and, according to Loveless, incorpo‐
rates all of his health issues instead of a narrow subset. Love‐
less also argues that the ALJ ignored the opinion given to the
private  insurer  by  Dr. Cusack  in  October 2012;  because  that
opinion  is  not  discussed,  says  Loveless,  an  inference  arises
that the ALJ may have overlooked other evidence.
   A  treating  physician’s  opinion  is  entitled  to  controlling
weight  unless  it  is  “inconsistent  with  the  other  substantial
evidence.”  20  C.F.R.  § 404.1527(c)(2);  see Scott  v.  Astrue,
647 F.3d 734, 739 (7th Cir. 2011); Campbell v. Astrue, 627 F.3d
299,  306  (7th  Cir. 2010).  In  this  case,  substantial  evidence
supports  the  ALJ’s  assessment  that  Dr. Cusack’s  Janu‐
ary 2013  opinion  contradicts  both  the  objective  medical  evi‐
dence and Loveless’s own account of his abilities.
10                                                       No. 15‐2235

    When a treating source’s opinion is not given controlling
weight,  the  ALJ  applies  other  factors  in  determining  what
weight  to  give  that  opinion.  See 20 C.F.R.  § 404.1527(c)(2).
Loveless contends that Dr. Cusack’s progress notes substan‐
tiate  the  extensive  functional  limitations  incorporated  into
his  January 2013  opinion.  That’s  not  so;  those  notes  docu‐
ment  Loveless’s  subjective  complaints  yet  generally  reflect
negative  findings  by  the  physician  after  physical  examina‐
tion. See 20 C.F.R. § 404.1528(a). Here, the ALJ properly dis‐
counted  Dr. Cusack’s  medical  opinion  that  rests  entirely  on
the  claimant’s  subjective  complaints.  See 20 C.F.R.
§ 404.1527(c)(3);  Bates  v.  Colvin,  736 F.3d  1093,  1100  (7th Cir.
2013);  Filus  v.  Astrue,  694 F.3d  863,  868  (7th Cir. 2012).  The
ALJ  also  properly  discounted  Dr.  Cusack’s  opinion  due  to
lack of consistency. See 20 C.F.R. § 404.1527(c)(4).
    As  for  Dr. Cusack’s  October 2012  opinion,  Loveless  pre‐
sumes that the doctor gave a “medical” opinion, but the So‐
cial  Security  Administration  defines  medical  opinions  as
“statements  from  physicians  and  psychologists  or  other  ac‐
ceptable  medical  sources  that  reflect  judgments  about  the
nature and severity” of a claimant’s impairments, including
the claimant’s symptoms, diagnosis, prognosis, physical and
mental  restrictions,  and  residual  functional  capacity.
20 C.F.R.  § 404.1527(a)(2);  Gayheart  v.  Commʹr  of  Soc.  Sec.,
710 F.3d 365, 375 (6th Cir. 2013). Omitted from this definition
are  opinions  about  a  claimant’s  ability  to  work,  a  question
the  regulation  reserves  for  the  Commissioner.  See 20  C.F.R.
§ 404.1527(d)(1);  Johansen  v.  Barnhart,  314 F.3d  283,  287–88
(7th Cir. 2002).  Thus,  the  ALJ  did  not  have  to  accept
Dr. Cusack’s  October  2012  conclusory  statement  that  Love‐
less  could  not  work.  The  ALJ  needed  only  to  weigh
Dr. Cusack’s  assessments  about  the  nature  and  severity  of
No. 15‐2235                                                        11

Loveless’s impairments, which he did. Additionally, an ALJ
is  not  required  to  list  each  document  he  considered,  but
must  only  weigh  the  relevant  evidence.  McKinzey  v.  Astrue,
641 F.3d 884, 891 (7th Cir. 2011); Craft v. Astrue, 539 F.3d 668,
673  (7th Cir. 2008).  Here  the  ALJ  discussed  and  evaluated
the  progress  notes  and  opinions  of  Dr. Cusack,  Dr. Torok,
and  Dr. Corcoran,  as  well  as  Loveless’s  testimony,  as  rele‐
vant evidence in assessing the claimant’s capacity to work.
    Loveless  next  challenges  the  ALJ’s  use  of  language  rou‐
tinely  criticized  by  this  court  as  “meaningless  boilerplate.”
See  Parker  v.  Astrue,  597  F.3d  920,  922  (7th  Cir.  2010);
see also Bjornson  v.  Astrue,  671  F.3d  640,  644–45  (7th  Cir.
2012);  Martinez  v.  Astrue,  630  F.3d  693,  696  (7th Cir. 2011).
Loveless  argues  that  the  language  is  faulty  and  represents
forbidden backward analysis requiring remand. But the use
of boilerplate is not a ground to remand if the ALJ justified
his  credibility  assessment  based  on  the  evidence.  Murphy  v.
Colvin,  759  F.3d  811,  816  (7th  Cir.  2014);  Pepper  v.  Colvin,
712 F.3d 351,  367–68  (7th  Cir.  2013).  And  here,  although  ac‐
knowledging  Loveless’s  testimony  that  he  could  not  work,
the  ALJ  reasoned  that  this  contention  was  contradicted  by
the claimant’s activities of daily living, his  routine and con‐
servative medical treatment since 2011, and many earlier re‐
ports of minimal or no pain.
    Loveless  insists,  though,  that  the  ALJ  improperly  over‐
emphasized his daily activities. As Loveless correctly notes,
we have criticized ALJs for equating activities of daily living
with an ability to work. See Bjornson, 671 F.3d at 647; Spiva v.
Astrue, 628 F.3d 346, 352 (7th Cir. 2010). But the ALJ did not
do this. Rather, the ALJ considered Loveless’s description of
his daily activities in assessing whether his testimony about
12                                                         No. 15‐2235

the  effects  of  his  impairments  was  credible  or  exaggerated.
See 20 C.F.R.  § 404.1529(c)(3)(i)  (explaining  that  agency  will
consider  daily  activities  in  evaluating  severity  of  claimant’s
symptoms); SSR 96‐7P, 1996 WL 374186, at *3 (directing ALJ
to  consider  daily  activities  in  determining  credibility  of
claimant’s  statements  about  symptoms);  Pepper,  712 F.3d
at 369  (agreeing  with  ALJ’s  reasoning  that  claimant’s  daily
activities  undermined  her  testimony  about  extent  of  her
symptoms). For example the ALJ considered Loveless’s abil‐
ity to perform light household chores, drive a car, and shop
for  groceries.  Moreover,  the  ALJ  explicitly  acknowledged
that Loveless’s ability to engage in these daily activities was
not  conclusive  proof  that  he  was  able  to  sustain  full‐time
work but instead was one factor that weighed against his ac‐
count of disabling limitations.
    Loveless also contends that the ALJ failed to give weight
to  his  significant  work  history.  We  recently  observed  that  a
“claimant with a good work record is entitled to substantial
credibility  when  claiming  an  inability  to  work  because  of  a
disability.”  Hill  v.  Colvin,  807  F.3d  862,  868  (7th  Cir.  2015)
(quoting Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983));
see  Singletary  v.  Sec’y  of  Health,  Educ.  and  Welfare,  623  F.2d
217,  219 (2d Cir. 1980) (explaining  that  claimant’s history  of
performing  demanding  work  over  long  hours  “justifies  the
inference  that  when  he  stopped  working  he  did  so  for  the
reasons  he  testified  to”);  Allen  v.  Califano,  613  F.2d  139,  147
(6th Cir. 1980)  (claimant’s  significant  work  history  “demon‐
strated a considerable inclination toward employment”). But
work  history  is  just  one  factor  among  many,  and  it  is  not
dispositive.  See Schaal  v.  Apfel,  134  F.3d  496,  502
(2d Cir. 1998).  And  here  the  ALJ’s  silence  is  not  enough  to
No. 15‐2235                                                     13

negate the substantial evidence supporting the adverse cred‐
ibility finding.
    Finally, Loveless argues that the ALJ erred by not incor‐
porating  the  limiting  effects  of  his  diabetes  and  hand  im‐
pairments  into  the  assessment  of  his  residual  functional  ca‐
pacity. But the ALJ did consider the limited evidence Love‐
less presented—the diabetes diagnosis, MRIs, glucose levels,
and  subjective  complaints—and  added  balancing  and  ma‐
nipulation  restrictions.  Loveless  does  not  identify  medical
evidence that would justify further restrictions.
                        III. CONCLUSION
   The ALJ’s decision is supported by substantial evidence.
Accordingly, the district court’s judgment is affirmed.


94 F.3d 651
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.James Lee HESS, Petitioner-Appellant,v.Samuel LEWIS, Respondent-Appellee.
No. 94-16944.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 12, 1996.*Decided Aug. 16, 1996.

Before:  BROWNING, SCHROEDER, and RYMER, Circuit Judges.

1
MEMORANDUM**

2
Arizona prisoner James Lee Hess appeals pro se the district court's dismissal without prejudice of his habeas corpus petition brought under 28 U.S.C. § 2254.  Hess contends that the district court erred by abstaining because of his ongoing criminal proceedings.  We have jurisdiction under 28 U.S.C. §§ 1291, 2253.  We review de novo,  Fort Belknap Indian Community v. Mazurek, 43 F.3d 428, 431 (9th Cir.1994), cert. denied, 116 S.Ct. 49 (1995), and affirm.

3
Generally, the federal courts will not intervene in a pending criminal proceeding absent extraordinary circumstances where the danger of irreparable harm is both great and immediate.  See Younger v. Harris, 401 U.S. 37, 45-46 (1971);   see also Fort Belknap Indian Community, 43 F.3d at 431 (abstention appropriate if ongoing state judicial proceedings implicate important state interests and offer adequate opportunity to litigate federal constitutional issues).  "[O]nly in the most unusual circumstances is a defendant entitled to have federal interposition by way of injunction or habeas corpus until after the jury comes in, judgment has been appealed from and the case concluded in the state courts."   Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir.1972) (per curiam);   see Carden v. Montana, 626 F.2d 82, 83-84 (9th Cir.), cert. denied, 449 U.S. 1014 (1980).

4
Here, Hess alleged both in his habeas petition and on appeal that several post-trial motions are currently pending in state court, following his 1993 convictions for armed robbery.  He concedes that he has not, and cannot, file a direct appeal of his conviction until the post-trial motions are resolved and he has been sentenced.  The record shows that numerous lengthy delays have occurred not only during the state criminal proceedings, but also in these federal habeas proceedings.  Nonetheless, Hess fails to show extraordinary circumstances indicating that he will suffer irreparable harm if we abstain until after he has a chance to present his due process and speedy trial claims to the state courts.  See Younger, 401 U.S. at 45-46;   Carden, 626 F.2d at 83-84;   Drury, 457 F.2d at 764-65.

5
Hess contends that he has exhausted his federal claims in the state courts by an extraordinary writ procedure.  We need not determine if he is correct because abstention is still appropriate, even if he has exhausted his claims.   See Carden, 626 F.2d at 83-84;   Drury, 457 F.2d at 765 (exhaustion of federal issue insufficient if criminal proceedings through direct appeal not yet complete);   cf. Sherwood v. Tompkins, 716 F.2d 632, 634 (9th Cir.1983) (declining to entertain habeas claim because, although constitutional question cannot be resolved in pending state appeal, appeal may result in reversal, mooting federal question).

6
AFFIRMED.

*
 The panel unanimously finds this case suitable for decision without oral argument.  Fed.R.App.P. 34(a);  9th Cir.R. 34-4.  Because we affirm the dismissal of the petition under the former version of 28 U.S.C. § 2254, we do not consider whether the Antiterrorism and Effective Death Penalty Act of 1996 applies to this appeal

**
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


535 U.S. 1074
BUSH ET UX.v.CITY OF ZEELAND.
No. 01-883.
Supreme Court of the United States.
May 13, 2002.

1
534 U. S. 1133. Petitions for rehearing denied.


338 F.3d 180
Sulaiman TARRAWALLY, Petitionerv.John ASHCROFT, Attorney General of the United States, Respondent.
No. 02-2951.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit LAR 34.1(a) July 10, 2003.
Filed July 29, 2003.

Steven A. Morley, Bagia & Morley, Philadelphia, PA, for Petitioner.
Robert D. McCallum, Jr., Assistant Attorney General, Civil Division, Terri J. Scadron, Assistant Director, Efthimia S. Pilitsis, Michael P. Lindemann, John D. Williams, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for Respondent.
Before NYGAARD, SMITH, Circuit Judges and IRENAS,* District Judge.
OPINION OF THE COURT
SMITH, Circuit Judge.

I. INTRODUCTION

1
Petitioner Sulaiman Tarawally1 appeals the denial of his application for asylum and for withholding of removal under the Immigration and Nationality Act, and his request for relief under the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment ("Convention Against Torture" or "Convention"). We now add our voice to the chorus of other circuits which have held that a court of appeals lacks jurisdiction to review an asylum petition that an Immigration Judge ("IJ") or Board of Immigration Appeals ("BIA") deems untimely. In reaching the merits of the petitioner's requests for withholding of removal and relief under the Convention Against Torture, we conclude that the Immigration Judge's finding that Tarawally was not likely to be persecuted or tortured was supported by substantial evidence.

II. FACTS

2
Sulaiman Tarawally is a citizen of Sierra Leone who entered the United States in January 1998 as a visitor for pleasure with authorization to remain until February 10, 1998. Tarawally filed an application for Temporary Protected Status, which was eventually denied. Sometime after October 12, 1999, he filed an application for asylum, withholding of removal and relief under the Convention Against Torture.

3
During the asylum hearing that followed, Tarawally testified to his personal history in Sierra Leone. Tarawally's father was chairman of the All People's Congress ("APC") for the Kono district of Sierra Leone. The APC was the ruling party until a 1992 coup, during which the National Provisional Ruling Council, also known as the Armed Forces Revolutionary Council ("AFRC"), took power. In early 1992, the AFRC arrested Tarawally's father for his political activities and detained him for about a month. At that time, Tarawally was living in the town of Bamakonta, some nine to twelve miles away from his family. Sometime after his father's detention, in March of 1992, Tarawally was visiting his family's home and awoke one night to the sound of gunfire. When he discovered that the rest of his family was missing, he immediately left Kono. He spent three days walking to the town of Bo, Sierra Leone, where he lived and attended secondary school from 1992 to 1993.2

4
In 1993, the school was closed due to civil unrest, so Tarawally traveled first to Guinea for three months, then to Gambia for a year, returning to Sierra Leone in 1994. Although Tarawally's application for admission to Injala University in Bo was accepted, he did not attend because of financial constraints.

5
Tarawally regularly traveled back and forth between Sierra Leone and Gambia from 1994 until 1996. Sometime in 1996 or 1997, Tarawally was sleeping in a school in Gambia when other Sierra Leone citizens, also in Gambia, threw a Molotov cocktail into the building. When Tarawally attended a soccer game in Gambia, he was physically attacked by the same individuals who had thrown the Molotov cocktail.3

6
Between 1993 and 1997, Tarawally advocated in support of the APC and assisted new members to register to vote. He also was active in the Student Mobilization For Democracy ("SMFD"), and the Youth Defense Army vigilante group in Sierra Leone. All of these groups opposed the Revolutionary United Front ("RUF") and AFRC.

7
In 1996, Tarawally discovered that his family was living in the town of Makeni in Sierra Leone and visited them for a week. He then went to Freetown, Sierra Leone, where he lived for a year. Around this time, he became uneasy about his participation in the SMFD and therefore decreased his involvement in its activities.

8
Although the Sierra Leone People's Party had been elected to power in 1996, a coup d'etat occurred in May of 1997, and the RUF, with support from the AFRC, overthrew the government.4 After the coup, the AFRC and the SMFD met in Freetown, and the AFRC threatened Tarawally and other SMFD members with amputation of their limbs if they did not cooperate and support the AFRC regime. Three days later, Tarawally was arrested5 in Freetown and then taken to the Pademba detention facility where he was held for several weeks and beaten. Around the same time, on June 18, 1997, Tarawally's father and sister were killed for their political activities and their opposition to the RUF.6 Tarawally was able to escape from prison with the assistance of a former school friend who was working there. Tarawally fled through the jungle to Guinea, a journey of approximately 75 miles, which he said he made in two days. He then went from Guinea to Gambia. He subsequently fled to the United States.

III. PROCEDURAL POSTURE

9
Following a removal hearing, the IJ issued an opinion in which he determined that because Tarawally did not file his asylum application within one year of his entry into the United States, his request for asylum should not be considered. The IJ then denied Tarawally's application for withholding of removal and relief under the Convention Against Torture, finding that Tarawally was not credible because of: 1) his initial uncertainty as to how long his father was detained following arrest; 2) his lack of knowledge regarding how his father was treated in prison; 3) his initial uncertainty as to what night he heard gunfire and fled Kono; 4) the implausibility that he would walk 97 kilometers from Kono to Bo and "instead of trying to locate his missing family, decide[] to enroll in a school in that city;" 5) the inconsistency between his 1998 affidavit, in which he stated that he started a new chapter of the SMFD in Bo in 1997 and that he was chairman of the chapter at the school, and his later testimony that he stopped actively participating in the SMFD organization in 1996, and that he never attended the University; 6) the conflicting dates he provided of his arrest, both early 1997 and June of 1997; 7) contradictions between petitioner's affidavit and his testimony as to the dates he attended high school; 8) contradictions as to whether he attended the University and whether he applied in 1993 or in 1997 after his father's death; 9) contradictions between his affidavit and his testimony as to whether threats of amputation occurred at the meeting between the AFRC and SMFD or three days later; 10) his failure to testify, consistent with his affidavit, that he was cut with razor blades and beaten senseless when arrested; 11) the inconsistency between his statement that he left prison in June 1997 and his affidavit that he arrived in Guinea in September, and that the trip took him only two days; 12) the implausibility that, between 1993 and 1997, he would have traveled back and forth between Sierra Leone and Gambia (a three to four day trip each way) with regularity to participate in student groups; and 13) contradictions as to whether he ever returned to Bo after 1993.

10
The BIA affirmed without opinion pursuant to 8 C.F.R. § 3.1(a)(7).7

IV. JURISDICTION

11
The IJ had subject matter jurisdiction under Sections 208(a) and 241(b)(3) of the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1158, 1231(b). The BIA exercised jurisdiction pursuant to 8 C.F.R. §§ 3.1 and 240.15. We have jurisdiction under Section 242(a) of the INA, 8 U.S.C. § 1252(a).

V. STANDARD OF REVIEW

12
Although we normally review only the decisions of the BIA, where the BIA summarily affirms the IJ's decision, we "must then review the decision of the IJ." Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002).8

13
We review de novo the issue of whether we have jurisdiction to determine what constitutes extraordinary circumstances for a late filed asylum petition. See Valansi v. Ashcroft, 278 F.3d 203, 207 (3d Cir.2002).

14
The IJ's adverse credibility determination and findings of fact with respect to his withholding and Convention claims must be reviewed under the substantial evidence standard. We will not disturb the IJ's credibility determination and findings of fact if they are "supported by reasonable, substantial and probative evidence on the record considered as a whole." Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir.1998) (internal quotation marks and citation omitted). Although we generally defer to the IJ's inferences, "deference is not due where findings and conclusions are based on inferences or presumptions that are not reasonably grounded in the record, viewed as a whole." Id. at 162 (internal quotation marks and citation omitted).

VI. LEGAL ANALYSIS

A. Eligibility for Asylum

15
An alien must prove by clear and convincing evidence that he filed his asylum application within one year of arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). However, if the alien can establish that there are "extraordinary circumstances relating to the delay in filing the application," failure to file the application within the one year period may be excused. 8 U.S.C. § 1158(a)(2)(D).

16
The relevant regulation lists as one possible extraordinary circumstance that "the applicant maintained Temporary Protected Status ... until a reasonable period before the filing of the asylum application." 8 C.F.R. § 208.4(a)(5)(iv). Tarawally argues that although he submitted his application for asylum more than a year after his arrival and although he was never granted Temporary Protected Status, the application for such status was itself an extraordinary circumstance.

17
The Government argues that we lack jurisdiction to review this question. In most cases, this court has jurisdiction to review a final order of removal resulting from the denial of an asylum request. See 8 U.S.C. § 1252(a)(1). However, INA Section 208(a)(3), 8 U.S.C. § 1158(a)(3), provides that "no court shall have jurisdiction to review any determination by the Attorney General under paragraph [(a)](2)," which includes the provision relating to whether extraordinary circumstances warrant waiving the one year time limitation for asylum applications. While there must be "clear and convincing evidence" to support a finding that Congress intended to preclude judicial review of an administrative action, specific language in a statute that indicates an intent to preclude judicial review satisfies this requirement. See Board of Governors of the Fed. Reserve Sys. v. MCorp Fin. Inc., 502 U.S. 32, 44, 112 S.Ct. 459, 116 L.Ed.2d 358 (1991); Block v. Community Nutrition Inst., 467 U.S. 340, 349, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984); see also INS v. St. Cyr, 533 U.S. 289, 298, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).

18
In Ismailov v. Reno, 263 F.3d 851, 855 (8th Cir.2001), the Eighth Circuit addressed whether it had jurisdiction to review the BIA's determination that the petitioner failed to demonstrate extraordinary circumstances with respect to his failure to file his asylum petition within one year of his arrival in the United States. That court held that it had no jurisdiction to review the BIA's decision, "because § 1158(a)(3) clearly indicates congressional intent to preclude judicial review of decisions made pursuant to § 1158(a)(2)." Id.

19
The Ninth Circuit followed the Eighth Circuit's lead in Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001). In Hakeem, the IJ denied the petitioner's request for asylum based on the untimeliness of his application, and the BIA dismissed the appeal, adopting the IJ's reasoning. The Ninth Circuit held that based on the language in § 1158(a)(3) it lacked jurisdiction to review the denial of asylum, as it was premised on the IJ's finding that the petitioner failed to file his asylum application within one year after his entry into the United States.

20
The Tenth and Eleventh Circuits subsequently addressed the same issue and held that they lacked jurisdiction to review denials of asylum petitions that an IJ or the BIA deemed untimely, based on the plain meaning of § 1158(a)(3). Tsevegmid v. Ashcroft, 318 F.3d 1226, 1230 (10th Cir. 2003); Fahim v. INS, 278 F.3d 1216, 1217 (11th Cir.2002). The Eleventh Circuit noted that "[t]he language of section 1158(a)(3) is so clear that several courts have, in dicta, used the section as an example of a clear congressional limit on courts' jurisdiction." Fahim, 278 F.3d at 1218.

21
We agree that the language of 8 U.S.C. § 1158(a)(3) clearly deprives us of jurisdiction to review an IJ's determination that an asylum petition was not filed within the one year limitations period, and that such period was not tolled by extraordinary circumstances. We therefore join the Eighth, Ninth, Tenth and Eleventh Circuits in holding that we are precluded from reviewing such determinations made pursuant to 8 U.S.C. § 1158(a)(2). See Tsevegmid, 318 F.3d at 1230; Fahim, 278 F.3d at 1217; Hakeem, 273 F.3d at 815; Ismailov, 263 F.3d at 855. While we lack jurisdiction to review the IJ's denial of Tarawally's asylum petition, based on the IJ's finding of untimeliness, Tarawally's applications for withholding of removal and relief under the Convention Against Torture are ripe for disposition.

B. Withholding of Removal

22
The standard for withholding of removal under INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), is: "the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group or political opinion." The alien must establish by a "clear probability" that his life or freedom would be threatened in the proposed country of deportation. INS v. Stevic, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984); Janusiak v. INS, 947 F.2d 46, 47 (3d Cir.1991). A clear probability means "more likely than not." Stevic, 467 U.S. at 429-30, 104 S.Ct. 2489.

23
Since Tarawally did not introduce any evidence other than his testimony to show that he belonged to groups opposing the AFRC/RUF and was persecuted on account of his political opinion, the IJ's adverse credibility determination precludes Tarawally from prevailing on his INA withholding of removal claim. We therefore must determine whether the IJ's adverse credibility determination was supported by substantial evidence.

24
Tarawally argues that the reasons offered by the IJ for his adverse credibility determination were either based on inferences or presumptions not grounded in the record as a whole, or on minor inconsistencies in dates that were easily explainable. First, Tarawally explains that his confusion as to dates was reasonably based, in part, on the fact that the events in question occurred almost nine years earlier. Second, he suggests that even though he requested that the hearing be held in English, the language barrier played a role in his misunderstanding the IJ's questions.9

25
Tarawally points to two examples of confusion which he claims arose from the language barrier. First, Tarawally suggests that the IJ did not understand what he meant when he said the rebel forces sought his father's "consent." The record demonstrates, however, that the IJ was able to determine that the "consent" the rebels were seeking was that Tarawally's father agree to withdraw from his political activities. Second, when the IJ asked if Tarawally "missed" his father, Tarawally claims he was unsure whether the IJ was asking if he was longing for his father or whether the two failed to connect at a particular time. This alleged uncertainty does not demonstrate that Tarawally had difficulty comprehending English; a person fluent in the language could just as easily be confused by the use of the word "miss." In any case, these examples are completely unrelated to the contradictions cited by the IJ. They do not demonstrate that Tarawally was having problems understanding the IJ because of a language barrier, and in light of the fact that Tarawally turned down the IJ's offer to provide a translator, he cannot now blame inconsistencies in his testimony on his lack of fluency.

26
Some of the IJ's reasons for his adverse credibility determination were based on presumptions not grounded in the record, such as his conclusion that it was implausible that Tarawally would not know exactly how his father was treated in prison, and that after walking 97 kilometers from Kono to Bo, "instead of trying to locate his missing family, [he] decided to enroll in a school in that city." However, the IJ also offered other rationales which went to the heart of the withholding of removal and Convention claims, and which could not be adequately explained by forgetfulness on the part of petitioner. For example, the IJ noted that Tarawally stated in his affidavit that he started a school chapter of the SMFD in Bo in 1997 and that he was chairman of the chapter, but testified that he was rarely participating in SMFD meetings or activities in 1997, and was living in Freetown not Bo; he contradicted himself as to whether he ever attended the University and whether he applied in 1993 immediately after high school or in 1997 after his father's death; he stated that he left prison in June 1997 and arrived in Guinea in September, but that the trip took him only two days; and he could not decide if he had ever returned to Bo for SMFD activities after his high school closed in 1993.

27
Moreover, although some minor discrepancies between Tarawally's 1998 affidavit and 2001 testimony might be understandable, Tarawally made irreconcilable contradictory assertions within the span of a few minutes.

28
Judge: I'm getting different answers here. He's answering both ways. Let me, let me understand. From the time you left Bo in '93, did you go back there, yes or no?

A: Yes

29
Judge: You went back to Bo?

30
A. [Indiscernible]

31
Judge: Let me go on to the next tape. You can think about your answer while I change the tape.

32
Q. All right. Now, you thought about the question, sir. Since you, since you left Bo in '93 did you ever return there? ... Since you left Bo in '93 did you ever return to Bo?

33
A. No.

34
. . . . .

35
Q. When was the last time you lived at that address [in Bo]?

36
A. '93.

Q. '93
A. Yeah

37
Q. All Right.

38
Judge: Proceed, Counsel.

39
Tarawally to Judge: To '97, something like that.

40
Judge: '93 to '97?

41
A. '93, something like that....

42
These inconsistencies and contradictions are not minor in nature but are material to the claim. As such, they constitute substantial evidence supporting the IJ's adverse credibility determination. Therefore, the IJ did not err in denying Tarawally's application for withholding of removal.

C. Convention Against Torture

43
The IJ denied the application for withholding under the Convention, in part because he found that Tarawally lacked credibility. He also stated that even if Tarawally were credible, he did not prove that he would be tortured if returned to Sierra Leone.

44
Under the Convention's implementing regulations "the burden of proof is on the applicant to establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal." 8 C.F.R. § 208.16(c)(2). The torture must be inflicted "by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." 8 C.F.R. § 208.18(a)(1). However, the torture need not be on the basis of Tarawally's political opinion, as is the case with asylum and withholding of removal. The evidence that the decision-maker should consider in evaluating whether the petitioner would be tortured includes "[e]vidence of gross, flagrant or mass violations of human rights within the country of removal" and "[o]ther relevant information regarding conditions in the country of removal." 8 C.F.R. § 208.16(c)(3). Several courts have held that "country conditions alone can play a decisive role in granting relief under the Convention." Kamalthas v. INS, 251 F.3d 1279, 1280 (9th Cir.2001); see also Mansour v. INS, 230 F.3d 902, 908 (7th Cir. 2000). Accordingly, a decision-maker must review claims for relief under the Convention and consider relevant country conditions even where adverse credibility determinations have precluded relief under the INA. See Mansour, 230 F.3d at 908; Kamalthas, 251 F.3d at 1284.

45
Petitioner suggests that even if his testimony is not credible, he established his eligibility for relief under the Convention based on the documents he submitted discussing country conditions. He claims that these documents demonstrate that torture by the AFRC/RUF, the current government, and the ECOMOG, a coalition of West African peace-keeping forces stationed in Sierra Leone, is so widespread that he is likely to be tortured if returned to Sierra Leone.

46
While the documents do establish that citizens who do not support the AFRC/ RUF are specifically targeted for torture, such as limb amputation, petitioner has introduced no evidence other than his own testimony that he was a member of groups opposing AFRC/RUF, such as the APC and SMFD. Therefore, accepting the IJ's adverse credibility determination, we must assume that the AFRC/RUF would treat Tarawally no differently than an ordinary citizen. Although Amnesty International recognizes that AFRC/RUF members commit "gross human rights abuses on a large scale," [R. 333] and that many civilians are killed arbitrarily even if they do not oppose the AFRC/RUF [R. 344], these statements alone are insufficient to demonstrate that it is more likely than not that a particular civilian, in this case Tarawally, will be tortured by AFRC/RUF if returned to Sierra Leone.10

47
Similarly, Tarawally failed to establish the likelihood that he will be tortured by the current government and/or the ECOMOG. While both have been accused of "gross violations of human rights." [R. 323], this does not demonstrate that it is more likely than not that Tarawally will be tortured.

48
Nor can Tarawally prevail on his argument that the current government will detain and torture him because it will believe him to be a supporter of the rebels based on the fact that he fled the country. Tarawally introduces no evidence to support either the fact that the government detains individuals re-entering Sierra Leone, or the fact that it presumes such individuals to be its opponents.11 Thus, the IJ did not err in refusing to grant relief under the Convention Against Torture.

VII. CONCLUSION

49
For the foregoing reasons, we will affirm the decision of the IJ.

Notes:

*
 Honorable Joseph E. Irenas, Senior United States District Judge for the District of New Jersey, sitting by designation

1
 Petitioner's name is frequently misspelled "Tarrawally" in the record, as it is in the above caption

2
 Tarawally's testimony on this point is unclear. He seems to suggest that between 1986 and 1993 his primary residence was in Bamakonta, but that he spent most of his time in Bo where he attended high school

3
 In his 1998 affidavit accompanying his asylum application, which was prepared with the assistance of his counsel, Tarawally claimed that the threats occurred in Gambia in 1994, and that he did not return to Sierra Leone until 1996

4
 The RUF and AFRC subsequently merged into one party, but the party was overthrown in March of 1998 after Tarawally left Sierra Leone

5
 In his affidavit, Tarawally stated that these threats about amputation were made when he was arrested, rather than at the meeting. During his cross-examination, he sought to explain the discrepancy by saying that the same threats were made on both occasions

6
 In his affidavit, Tarawally stated that after his father and sister were killed he returned to Bo to attend the University, and it was at that time that the meeting between the SMFD and ARFC took place

7
 The BIA issued its ruling on June 13, 2002. In 2003, the regulations were renumbered and the streamlining regulation by which a single Board member is permitted to affirm without opinion is now set forth at 8 C.F.R. § 1003.1(a)(7)

8
 Petitioner did not challenge our authority to review the IJ's decision when the BIA issues a summary affirmance under the streamlining regulation, or the validity of the regulation

9
 In his brief in support of appeal to the BIA, Tarawally also pointed out that he injured his head in a serious automobile accident on May 20, 2000, and was taking numerous prescription medications for forgetfulness and loss of memory. A letter dated June 15, 2000, from the Reading Hospital and Medical Center confirms that Tarawally was hospitalized for a month as a result of the accident, and that he "continue[d] to have significant cognitive deficits and [was] continuing therapy on an outpatient basis." However, Tarawally did not introduce any evidence that he continued to experience cognitive deficits a year later when the hearing took place

10
 Moreover, even if Tarawally could establish that he was likely to be tortured by the AFRC/RUF, his claim would still fail. The AFRC/RUF is no longer in power; therefore Tarawally cannot establish that any torture by the AFRC/RUF is at the instigation or with the acquiescence of the current governmentSee Lukwago v. Ashcroft, 329 F.3d 157, 183 (3d Cir.2003) (upholding denial of relief under Convention because petitioner alleged he would be tortured by the LRA rebels and since this was a guerilla group that fought the government, the government did not acquiesce in the LRA activities); Amanfi v. Ashcroft, 328 F.3d 719, 726 (3d Cir.2003) (upholding denial of relief under Convention because petitioner did not show that any public official had "awareness of this torture" by private individuals but refused to intervene and provide protection).
It might be possible to argue that the AFRC/ RUF should be viewed as a government entity since they were formerly in power, the Sierra Leone government is not particularly stable, and the AFRC/RUF might regain control at any moment. Nonetheless, in light of Tarawally's failure to introduce substantial evidence to show the likelihood he will be tortured by the AFRC/RUF, we need not reach this issue.

11
 Cf. Zubeda v. Ashcroft, 333 F.3d 463, 478-80 (3d Cir.2003) (where documentary evidence showed that government routinely tortured those it detained, if IJ took administrative notice of the likelihood that petitioner would be detained upon his return, petitioner might be entitled to withholding under the Convention despite adverse credibility determination).


216 F.3d 29 (D.C. Cir. 2000)
Mohamed Salem El-Hadad, Appelleev.United Arab Emirates and The Embassy of the United Arab Emirates, Appellants
No. 99-7220
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 19, 2000Decided June 16, 2000

Appeal from the United States District Court for the District of Columbia(No. 96cv01943)
James M. Johnstone argued the cause for appellant.  John  P. Szymkowicz was on the brief for appellant.
Sylvia J. Rolinski argued the cause and filed the brief for  appellee.
Before:  Ginsburg, Tatel, and Garland, Circuit Judges.
Opinion of the court filed by Circuit Judge Garland.
Garland, Circuit Judge:

1
Plaintiff Mohamed Salem ElHadad is a citizen of Egypt and a former employee of the  Embassy of the United Arab Emirates located in Washington,  D.C.  After his employment was terminated, El-Hadad sued  both the Embassy and the United Arab Emirates (collectively, "the U.A.E.") for alleged breach of contract and defamation.1  The U.A.E. moved to dismiss, asserting immunity from  suit under the Foreign Sovereign Immunities Act (FSIA), 28  U.S.C. §§ 1602 et seq.  The district court denied the U.A.E.'s  motion on the pleadings, holding that the employment relationship between the U.A.E. and El-Hadad came within the  "commercial activity" exception to sovereign immunity because El-Hadad was not a national of the U.A.E.  The court  also rejected the U.A.E.'s contention that even if plaintiff's  suit fell within the "commercial activity" exception, the FSIA  contains an "exception to that exception" for defamation  claims.

2
The U.A.E. appeals from the denial of its motion to dismiss. We conclude that there are factual questions that must be  resolved before the relationship between El-Hadad and the  U.A.E. can be characterized as commercial rather than governmental, and we therefore reverse in part and remand for  further proceedings.  We agree with the district court, however, that if El-Hadad's action is based upon commercial  activity, the U.A.E. is not immune from his claim for defamation.

3
* The denial of a foreign state's motion to dismiss on the  ground of sovereign immunity is subject to interlocutory  appeal under the collateral order doctrine.  See Trans-america Leasing, Inc. v. La Republica de Venezuela, 200  F.3d 843, 847 (D.C. Cir. 2000).  Because the district court  decided the motion on the pleadings, our standard of review is  de novo.  See id.

4
The FSIA provides the sole avenue by which American  courts can obtain jurisdiction over foreign states.  See Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 611 (1992).Under the FSIA, a foreign state is immune from the jurisdiction of our courts unless certain statutory exceptions are met.See 28 U.S.C. §§ 1604-1605.  The principal exception at issue  here is that for "commercial activity."  The Act provides that  a "foreign state shall not be immune from the jurisdiction of  courts of the United States or of the States in any case-...  (2) in which the action is based upon a commercial activity  carried on in the United States by the foreign state...."  Id.   1605(a).

5
Our precedent makes clear that the employment of personnel by a foreign state is not per se commercial activity under  the FSIA.2  In Broadbent v. Organization of American  States, applying an analysis based on the FSIA, we held that  the firing of staff members of the General Secretariat of the  Organization of American States (OAS) was not commercial  activity and therefore that the OAS was immune from suit for  improper discharge.  See 628 F.2d 27, 35 (D.C. Cir. 1980).  In  support, we cited the House Report on the FSIA, which states in part:  "Also public or governmental and not commercial in nature, would be the employment of diplomatic, civil  service, or military personnel...."  H.R. Rep. No. 94-1487, at  16 (1976).3  The words replaced by the ellipses in this quotation will soon become important, but for now it is enough to  note that, as we concluded in Broadbent, the "report clearly  marks employment of civil servants as noncommercial for  purposes of restrictive immunity."  628 F.2d at 34.4

6
The U.A.E. contends that El-Hadad was a civil servant of  the U.A.E., and that his firing is therefore noncommercial  and immune from suit in our courts.  Although El-Hadad is  an Egyptian citizen, it is uncontested that he worked for the  government of the U.A.E. for sixteen years.5  For the first  thirteen of those years, he worked in the U.A.E. as an  auditor.  Beginning in January of 1993, El-Hadad worked as  an auditor in the Cultural Division of the U.A.E.'s Embassy  in Washington.  The U.A.E. terminated El-Hadad's employment in February 1996.  El-Hadad alleges that he was  terminated after he uncovered misappropriation of U.A.E.  public funds.  The U.A.E. disputes this allegation, but contends that even if it were true, the auditing function ElHadad performed is the work of a civil servant and the  U.A.E. is therefore immune from suits arising from such  activity.

7
The district court held that regardless whether El-Hadad  was a member of the U.A.E.'s civil service, his employment  would nonetheless constitute commercial activity because he  is not a U.A.E. national.  The court based that conclusion on  language in our Broad bent opinion, which stated that there is  "an exception from the general rule" that civil service employment is noncommercial "in the case of employment of American citizens or third country nationals by foreign states."Broad bent, 628 F.2d at 34.  The district court did note,  however, that other circuits have not invoked such an exception.  Instead, those courts examine the specifics of the  employment relationship for indicia of civil service, treating  the employee's nationality--if they consider it at all--as a  non-dispositive factor.  See Holden v. Canadian Consulate,  92 F.3d 918, 920-22 (9th Cir. 1996) (examining details of  American's employment with Canadian Consulate to determine whether Consulate was immune on ground that plaintiff  was member of civil service);  Segni v. Commercial Office of  Spain, 835 F.2d 160, 165 & n.7 (7th Cir. 1987) (noting that  nationality can be a factor, but deciding the case by reference  to specifics of employment relationship rather than fact of  third country nationality).

8
We cannot fault the district court for its legal conclusion,  resting, as it did, on the language of Broadbent.  But that  language was plainly dictum, not necessary to decide the case  and therefore not binding upon us.  See, e.g., United States v.  Torres, 115 F.3d 1033, 1036 (D.C. Cir. 1997).  While Broadbent did opine that third country nationality would be dispositive in a case involving a sovereign state, Broadbent itself  involved an international organization.  Notwithstanding that  some of the plaintiffs were Americans, the court declined to  apply a "third country nationality" exception to the civil  service rule in that case, reasoning that since an international  organization has no nationals of its own, applying such an  exception in the context of international organizations would  "swallow up the rule of immunity for civil service employment  disputes."  Broadbent, 628 F.2d at 34.

9
Now that we are squarely faced with the question, we  conclude that a per se rule of non-immunity for a foreign state's employment of third country nationals is inconsistent  with Congress' intent to immunize foreign governmental activity from suit in American courts.  Indeed, when pressed at  oral argument, both sides appeared to agree.  Both concurred, for example, that if El-Hadad had been the U.A.E.'s  ambassador to the United States, the U.A.E. would have  immunity for firing him despite his Egyptian nationality. Nor, apparently, is this scenario particularly far-fetched.Both parties agreed that small countries such as the U.A.E.  do, at times, employ nationals of other countries (and particularly citizens of regional neighbors) in high governmental  positions.6

10
We now return to the ellipses noted above.  The full  quotation from the House Report is as follows:  "Also public  or governmental and not commercial in nature, would be the  employment of diplomatic, civil service, or military personnel,  but not the employment of American citizens or third country  nationals by the foreign state in the United States."  H.R.  Rep. No. 94-1487, at 16.  Broadbent read the language beginning with "but not" (for which we substituted the ellipses  above) as creating a per se exception from the general rule  that civil service employment is governmental rather than  commercial.  See Broadbent, 628 F.2d at 34.  That is surely a  reasonable interpretation.  But we think it at least as likely  that Congress was attempting to contrast civil service (and  diplomatic and military employment, not at issue here) with  non-civil service employment, operating on the assumption  that it was unlikely a country would employ an American or  third country national in such a position.  This view of the  legislative history is bolstered by the next paragraph of the  House Report, which lists, as additional examples of commercial activity, a foreign government's "employment or engagement of laborers, clerical staff or public relations or marketing agents," H.R. Rep. No. 94-1487, at 16--job categories which Congress apparently also thought unlikely to be occupied by members of a government's civil service.

11
In any event, the language that must control our decision is  that of the statute rather than of the somewhat muddy  legislative history.  Under the FSIA, the immunity exception  depends solely on whether the action is based upon a "commercial activity," without any mention of the nationality of the  participants.  See 28 U.S.C.  1605(a)(2).  We have no warrant, therefore, for formulating a test that turns solely on  nationality.  To the contrary, because under the usual understanding of the terms a foreign state can engage in noncommercial (i.e., governmental) activity through third country  nationals, the statutory language dictates that the inquiry  cannot end with the fact that the employee is not a citizen of  the employing state.  At oral argument, both parties agreed.

II

12
Because defendants' motion was dismissed on the pleadings, we remand the case to the district court to undertake a  further inquiry.  The ultimate question to be answered is  whether El-Hadad's employment constituted commercial activity.  As we held in Broadbent, the employment of civil  servants is noncommercial for purposes of the FSIA.  See  Broadbent, 628 F.2d at 34-36.  Hence, the operative question  is whether El-Hadad was a member of the U.A.E.'s civil  service.  In order to guide the proceedings on remand, we  suggest some questions that appear relevant to making that  determination in this case.  We do not regard them as an  exclusive list, nor as necessarily applicable in all cases.

13
First, how do the U.A.E.'s own laws define its civil service,  and do El-Hadad's job title and duties come within that  definition?

14
Second, what was the nature of El-Hadad's employment  relationship with the U.A.E.?  Did he have a true contractual  arrangement, or is his "contract" claim instead based, as the  U.A.E. contends, solely upon the civil service laws of the  U.A.E.?

15
Third, what was the nature of El-Hadad's employment  relationship when he worked in the U.A.E., and how did his  subsequent employment at the Embassy relate to that prior  tenure?  The U.A.E. contends that El-Hadad was a long-time  resident and member of its domestic civil service, who was  merely "transferred" to Washington to perform the same  functions (governmental audits) he had been performing at  home.  El-Hadad contends, on the other hand, that he quit  his position in the U.A.E. and began a "new" job in the  United States, "separate from his previous employment."

16
Fourth, what was the nature of El-Hadad's work?  As  noted above, Congress indicated that the "employment or  engagement of laborers, clerical staff or public relations or  marketing agents" would come within the definition of commercial activity.  H.R. Rep. No. 94-1487, at 16.

17
Fifth, what is the relevance of El-Hadad's Egyptian nationality on the facts of this case?  Is the U.A.E. a country in  which, as the House Report assumed, non-nationals are unlikely to be employed as governmental officers?  Or does the  U.A.E. often employ non-nationals in governmental positions?

18
We appreciate that this multi-factor inquiry is not analytically precise.  That is a consequence of Congressional preferences, however, rather than our own.  Congress expressly  concluded that it was "unwise to attempt an excessively  precise definition" of "commercial activity," and chose instead  to give the "courts ... a great deal of latitude in determining  what is a 'commercial activity' for purposes of" the FSIA,  providing only a few (sometimes conflicting) examples of the  kinds of employment it regarded as falling within that category.  Id. at 16.  Although the Supreme Court has repeatedly  lamented this situation, see Saudi Arabia v. Nelson, 507 U.S.  349, 359 (1993) (noting that the FSIA "leaves the critical term  'commercial' largely undefined") (quoting Weltover, 504 U.S.  at 612), it has also noted that courts "do not have the option  to throw up [their] hands" and must instead accept "judicial  responsibility to determine what a 'commercial activity' is for  purposes of the Act."  Id.

III

19
The U.A.E. contends that even if its termination of ElHadad were regarded as coming within the "commercial  activity" exception to sovereign immunity, plaintiff's claim  that he was defamed in connection with that termination  would nonetheless have to be dismissed under a "defamation"  exception to that exception.  As the district court correctly  held, however, defamation is not an "exception to the exception" for commercial activity, but rather an exception to a  separate FSIA exception for noncommercial torts.

20
The FSIA provides that a "foreign state shall not be  immune from the jurisdiction of courts of the United States  ... in any case" in which one of several exceptions applies.28 U.S.C.  1605(a).  The second exception, contained in  paragraph (2) of  1605(a), is the one considered above:  any  case "in which the action is based upon commercial activity  carried on in the United States by the foreign state."  Id.   1605(a)(2).  Paragraph (2) does not contain a defamation  exception to its commercial activity exception.  There is,  therefore, no indication that defamation arising out of a  commercial activity is immune from suit.

21
It is the fifth exception to immunity, contained in paragraph (5) of  1605(a), that is implicated by the U.A.E.'s  argument here.  That paragraph applies to any case "not  otherwise encompassed in paragraph (2) above, in which  money damages are sought against a foreign state for ...  damage to or loss of property occurring in the United States  and caused by the tortious act or omission of that foreign  state."  Id.  1605(a)(5).  Unlike the exception for commercial activity, this tort exception does contain an exception for,  inter alia, defamation:  "[T]his paragraph," the FSIA states,  "shall not apply to ... any claim arising out of ... libel, [or]  slander...."  Id.  1605(a)(5), (a)(5)(B).

22
The U.A.E. contends that the defamation exception to  paragraph (5) is applicable not only to the torts covered by  that paragraph, but also to the commercial activity covered by  paragraph (2).  That reading, however, is expressly contradicted by the language of the statute.  As just quoted, paragraph (5) begins by stating that it applies only to cases  "not otherwise encompassed in paragraph (2) above," i.e., only  to those tort cases not encompassed by the commercial  activity paragraph.  And in subsequently introducing its own  exceptions, paragraph (5) goes on to state that "this paragraph"--i.e., paragraph (5)--"shall not apply to" libel or  slander.  Id.  1605(a)(5), (a)(5)(B) (emphasis added).  The  language therefore makes clear that paragraph (5) and its  defamation exception are inapplicable to tort cases based  upon commercial activity.

23
This reading is confirmed by the legislative history, which  repeatedly refers to the category encompassed by paragraph  (5) as "noncommercial torts."  H.R. Rep. No. 94-1487, at 20,  21 (emphasis added);  see Argentine Republic v. Amerada  Hess Shipping Corp., 488 U.S. 428, 439 (1989) (referring to   1605(a)(5) as the "noncommercial torts exception");  cf.  Nelson, 507 U.S. at 361-62 (finding that the tortious activity  alleged in that case, wrongful arrest by Saudi police, failed to  qualify as commercial activity because it was "not the sort of  action by which private parties can engage in commerce").Paragraph (5), the House Report states, "is directed primarily at the problem of traffic accidents but is cast in general  terms as applying to all tort actions for money damages, not  otherwise encompassed by section 1605(a)(2) relating to commercial activities."  H.R. Rep. No. 94-1487, at 20-21 (emphasis added).  Its "purpose," the Report continues, "is to permit  the victim of a traffic accident or other noncommercial tort to  maintain an action against the foreign state to the extent  otherwise provided by law."  Id. at 21.

24
This reading is also consistent with the case law.  This  circuit has previously stated that the exceptions to paragraph  (5) do not limit the commercial activity exception.  See Gilson  v. Republic of Ireland, 682 F.2d 1022, 1028 n.27 (D.C. Cir.  1982) (stating that 28 U.S.C.  1605(a)(5)(B) "does not limit  id.  1605(a)(2)").  Those of our sister circuits that have  considered the question have reached the same conclusion. See Southway v. Central Bank of Nigeria, 198 F.3d 1210,  1219 (10th Cir. 2000);  Export Group v. Reef Industries, Inc.,  54 F.3d 1466, 1473-77 (9th Cir. 1995);  see also Letelier v.  Republic of Chile, 748 F.2d 790, 795 (2d Cir. 1984) (noting that the statutory language "suggests that the commercial  activity exception to jurisdictional immunity under paragraph  (2) and the tort exception under (5) are mutually exclusive").Accordingly, we affirm the district court's decision that activity encompassed by the waiver of sovereign immunity contained in 28 U.S.C.  1605(a)(2) does not become subject to  suit by virtue of the provisions of  1605(a)(5)(B).7

IV

25
The decision of the district court is reversed in part and the  case is remanded for further proceedings consistent with this  opinion.

Notes:

1
 The complaint also named three individuals acting in their  official capacities.  The district court granted the individuals' motion to dismiss for lack of personal jurisdiction, see El-Hadad v.  Embassy of U.A.E., 69 F. Supp. 2d 69, 76-79 (D.D.C. 1999), and  that decision is not at issue in this appeal.

2
 The FSIA provides that:  "The commercial character of an  activity shall be determined by reference to the nature of the course  of conduct or particular transaction or act, rather than by reference  to its purpose."  28 U.S.C.  1603(d).  As the Supreme Court  recognized in Weltover, however, this definition "leaves the critical  term 'commercial' largely undefined."  504 U.S. at 612.  The sentence "merely specifies what element of the conduct determines  commerciality (i.e., nature rather than purpose), but still without  saying what 'commercial' means."  Id.  The Court concluded that  the defining "issue is whether the particular actions that the foreign  state performs (whatever the motive behind them) are the type of  actions by which a private party engages in trade and traffic or  commerce."  Id. at 614 (internal quotation marks and citation  omitted).

3
 The Senate Report contains the same language, both on this  point and on the others quoted below.  See S. Rep. No. 94-1310, at  16 (1976);  see also id. at 20-21.

4
 That point distinguishes Broadbent from Janini v. Kuwait  University, 43 F.3d 1534 (D.C. Cir. 1995), in which we held that the  firing of teachers at Kuwait University came within the commercial  activity exception.  There was no claim in that case that the  teachers were civil servants of the government of Kuwait.

5
 The district court decided the motion to dismiss on the pleadings, and we therefore assume that this and the following facts,  taken from p 9 of the complaint, are true.  See Saudi Arabia v.  Nelson, 507 U.S. 349, 351 (1993).  In any event, except where noted,  the U.A.E. does not contest their validity.

6
 An estimated 75% of the U.A.E.'s population between the ages  of 15 and 64 consists of non-nationals.  See CIA, The World Fact  Book 1999, at 504 (available at http://www.odci.gov/cia/  publications/factbook/tc.html.)

7
 We reject the U.A.E.'s argument that foreign sovereigns  should be immune from actions for defamation under the FSIA  because the United States is immune from such actions under the  Federal Tort Claims Act (FTCA), 28 U.S.C.  2680(h).  Although  both statutes contain defamation exceptions, see H.R. Rep. No. 941487, at 21, the analogy becomes inapposite when applied in the  context of the FSIA's commercial activity exception because there  is no comparable immunity exception under the FTCA.  See Export  Group, 54 F.3d at 1476 (describing FSIA's commercial activity  exception as "ha[ving] no counterpart in the FTCA").


                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE

                     STATE OF ARIZONA, Respondent,

                                        v.

                  DAVID SOLOMON SOVERO, Petitioner.

                         No. 1 CA-CR 15-0142 PRPC
                              FILED 4-27-2017

    Petition for Review from the Superior Court in Maricopa County
                         No. CR2009-109769-001
                 The Honorable Michael W. Kemp, Judge

                  REVIEW GRANTED; RELIEF DENIED

                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Arthur G. Hazelton, Jr.
Counsel for Respondent

David Solomon Sovero, Buckeye
Petitioner

                       MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Judge James P. Beene joined.
                             STATE v. SOVERO
                            Decision of the Court

T H U M M A, Judge:

¶1             Petitioner David Solomon Sovero seeks review of an order
denying his petition for post-conviction relief, filed pursuant to Arizona
Rule of Criminal Procedure 32.1 (2017).1 Absent an abuse of discretion or
error of law, this court will not disturb a superior court’s ruling on a petition
for post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19 (2012).
Finding no such error, this court grants review but denies relief.

¶2             In November 2010, Sovero pled guilty to two counts of first
degree murder and one count of aggravated assault, all dangerous but non-
repetitive offenses. Sovero stipulated to natural life sentences for the
murder convictions and to a prison term of years on the aggravated assault
conviction, with no agreements as to concurrency. As a part of the plea
agreement, the State dismissed five other felony counts and its notice of
intent to seek the death penalty for both murders. In January 2011, the court
sentenced Sovero to consecutive natural life prison terms for the murder
convictions and a consecutive 21-year prison term for the aggravated
assault conviction.

¶3            Sovero filed his petition for post-conviction relief in this case
on September 2014. Sovero claimed his pleas were not knowing, intelligent
and voluntary because he was taking psychotropic medication under a
doctor’s care at the time. In pressing this argument, Sovero failed to present
a colorable claim. Sovero offered nothing from a medical professional to
explain the effects of any relevant medication in general or its effects on him
specifically. Moreover, although he pled guilty in November 2010, the
medical records he provides (which show that he was taking psychotropic
medication at one time) end in May 2010, six months before the change-of-
plea hearing.

¶4            While Sovero said at the November 2010 change-of-plea
hearing that he was still taking medication for mental health issues, he did
not identify the medications and did not complain of their effects, but
explained to the court that the medications helped him think more clearly.
Sovero then went through the full colloquy with the court and stated he
understood all the terms of the plea agreement, including the full range of
penalties. Nothing about that colloquy suggests his pleas were not
knowing, intelligent and voluntary. Moreover, given the nature of his

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

                                       2
                             STATE v. SOVERO
                            Decision of the Court

claims, because Sovero failed to present a colorable claim regarding his
pleas, he has also failed to present a colorable claim of ineffective assistance
of counsel based on the failure to raise this issue at the change-of-plea
hearing.

¶5            Sovero also argues the State failed to disclose the
supplemental report of an officer who investigated the aggravated assault,
which he claims proves he did not commit aggravated assault because it
states two witnesses did not see him point a gun at the victim. That two
witnesses did not see Sovero point a gun at the victim does not show he did
not point a gun at the victim. Nor does Sovero claim the report is newly
discovered evidence. Moreover, a plea agreement waives all non-
jurisdictional defenses, errors and defects that occurred before the plea,
meaning relief on this ground properly is denied. State v. Moreno, 134 Ariz.
199, 200 (App. 1982).

¶6             Sovero next argues ineffective assistance of trial counsel,
arguing his attorney failed to put adequate time into his case; failed to
investigate and interview witnesses and failed to request a hearing
pursuant to Arizona Rule of Evidence 609 regarding the impeachment at
trial of two witnesses with their prior felony convictions. To state a
colorable claim of ineffective assistance of counsel, a defendant must show
that counsel’s performance fell below objectively reasonable standards and
that the deficient performance prejudiced the defendant. Strickland v.
Washington, 466 U.S. 668, 687 (1984). On this record, relief properly was
denied because Sovero failed to present a colorable claim of ineffective
assistance of counsel.

¶7            First, Sovero’s argument about the amount of time his trial
attorney spent focuses on how much time counsel spent in the jail facility
visiting Sovero, the same subject of a motion to change counsel Sovero filed
nearly a year before he pled guilty. His argument does not challenge how
much time his attorney spent working on the case overall. To argue counsel
was not at the jail facility for as many hours as counsel claimed nearly a
year before Sovero pled guilty does not present a colorable claim that
counsel’s performance fell below objectively reasonable standards or that
Sovero suffered any prejudice.

¶8           Next, Sovero argues his trial attorney did not properly
investigate and/or interview witnesses. That argument, however, is not
supported by affidavits from those witnesses explaining what testimony
those witnesses could have offered. See State v. Borbon, 146 Ariz. 392, 399
(1985). Accordingly, relief properly was denied on that ground.

                                       3
                             STATE v. SOVERO
                            Decision of the Court

¶9            Sovero’s argument regarding a Rule 609 hearing similarly
shows no basis for relief. There was no reason to seek such a hearing unless
and until it became apparent that the matter would proceed to trial and
those witnesses would testify. Accordingly, relief properly was denied on
that ground.

¶10            Finally, Sovero argues his trial counsel was ineffective when
counsel failed to obtain the “law enforcement integrity files” of several
investigating officers; failed to depose investigators and failed to challenge
the grand jury proceedings. Sovero also argues the court erred when it
denied his request to assign a new judge to his post-conviction relief
proceedings. Sovero, however, did not raise these issues in his petition for
post-conviction relief. A petition for review may not present issues not first
presented to the superior court. See, e.g., State v. Bortz, 169 Ariz. 575, 577-78
(App. 1991); State v. Wagstaff, 161 Ariz. 66, 71 (App. 1988); State v. Ramirez,
126 Ariz. 464, 468 (App. 1980); Ariz. R. Crim. P. 32.9(c)(1)(ii). Nor has Sovero
supported his argument that the assigned judge had a bias or prejudice
against him. Accordingly, this court will not address these issues.

¶11           For these reasons, this court grants review but denies relief.

                            AMY M. WOOD • Clerk of the Court
                            FILED: AA

                                         4


932 F.2d 958
Bantam Doubleday Dell Publishing Group Inc.v.Kable News Company, Inc.
NO. 90-1913
United States Court of Appeals,Third Circuit.
APR 17, 1991

Appeal From:  E.D.Pa.,
Shapiro, J.

1
AFFIRMED.


Electronically Filed
Intermediate Court of Appeals
CAAP-17-0000391
25-JUN-2018
08:03 AM


         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED

ROGER LEE STONE II,

                Appellant,

 v.                                                       Case No. 5D16-4066

MONIKA LIND ANDERSON,

                Appellee.

________________________________/

Opinion filed December 1, 2017

Appeal from the Circuit Court
for Orange County,
Bob Leblanc, Judge.

Jeffrey A. Conner, Winter Garden, for
Appellant.

F. W. Blankner, Jr., of Ali & Blankner,
Orlando, for Appellee.

PER CURIAM.

       Roger Lee Stone II appeals the trial court’s order denying his exceptions to the

Report and Recommendation of General Magistrate. We agree that the child support

amount was erroneously calculated because Stone was to receive approximately 136

overnights per year with the minor child, not 103 overnights as utilized in the child support

calculations.
      We conclude that the other issues raised on appeal are without merit.

      AFFIRMED, in part; REVERSED, in part; and REMANDED for recalculation of

child support award.

PALMER, TORPY and EVANDER, JJ., concur.

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