823 F.2d 276
Glenn K. OKADA, William E. Takabayashi, and Richard A.Cooke, Jr., Plaintiffs-Appellees,v.MGIC INDEMNITY CORP., also known as AMBAC Indemnity Corp.and WMBIC Indemnity Corp., Defendant-Appellant.
No. 85-2501.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted March 25, 1986.Decided July 31, 1986.Amended July 8, 1987.Corrected Aug. 10, 1987.

Wallace A. Christensen, Washington, D.C., for defendant-appellant.
John S. Edmunds, Honolulu, Hawaii, for plaintiffs-appellees.
Appeal from the United States District Court for the District of Hawaii.
Before FERGUSON, CANBY and HALL, Circuit Judges.
FERGUSON, Circuit Judge:

1
Defendant MGIC Indemnity Corporation ("MGIC") appeals the district court's grant of summary judgment in favor of plaintiffs Glenn K. Okada, William E. Takabayashi, and Richard A. Cooke, Jr.  ("insureds"), who were insured under a Directors and Officers Errors and Omissions policy issued by MGIC.  The district court ruled that MGIC had a duty to pay the defense costs of insureds as those costs came due in lawsuits alleging losses caused by the insureds as directors of a savings and loan association ("the underlying lawsuits");  that more than one potentially covered "loss" was involved;  and that MGIC acted in bad faith by refusing to pay, without condition, the insureds' defense costs in the underlying lawsuits, refusing to affirm or deny coverage of claims in the underlying lawsuits, and refusing to enter settlement negotiations in the underlying lawsuits.   Okada v. MGIC Indem. Corp., 608 F.Supp. 383 (D.Hawaii 1985).

2
We affirm the rulings finding a duty to pay defense costs as they come due and more than one potentially covered "loss," but reverse the ruling that MGIC acted in bad faith.

I.

3
Plaintiff insureds were three of the eight directors of First Savings & Loan Association of Hawaii ("First Savings").  MGIC issued a Directors and Officers Errors and Omissions insurance policy, the relevant terms of which are:

4
[T]he insurer agrees:

5
(a) With the Directors and Officers of the Association that if, during the policy period, any claim or claims are made against the Directors and Officers, individually or collectively, for a Wrongful Act, the Insurer will pay, in accordance with the terms of this policy, on behalf of the Directors and Officers or any of them, their heirs, legal representatives or assigns all Loss which the Directors and Officers or any of them shall become legally obligated to pay.

6
....

1. DEFINITIONS

7
....

8
(d) The term "Loss" shall mean any amount which the Directors and Officers are legally obligated to pay or for which the Association is required to indemnify the Directors or Officers, or for which the Association has, to the extent permitted by law, indemnified the Directors and Officers, for a claim or claims made against the Directors and Officers for Wrongful Acts and shall include but not be limited to damages, judgments, settlements, costs (exclusive of salaries of officers or employees), and defense of legal actions, claims or proceedings and appeals therefrom and cost of attachment or similar bonds;  provided, however, such Loss shall not include fines or penalties imposed by law or matters which may be deemed uninsurable under the law pursuant to which this policy shall be construed.

9
....

3. EXCLUSIONS

10
(a) Except for Loss for which the Association is required to indemnify the Directors or Officers, or for which the Association has, to the extent permitted by law, indemnified the Directors or Officers, the Insurer shall not be liable to make any payment for Loss in connection with any claim made against the Directors or Officers:

11
(1) for libel or slander;

12
(2) based upon or attributable to their gaining in fact of any personal profit or advantage to which they were not legally entitled;

13
(3) for return by the Directors and Officers of any remuneration paid to the Directors and Officers without the prior approval of the governing bodies of the Association, which payment, without such previous approval, shall be held by the Courts to be in violation of law;

14
(4) for an accounting of profits in fact made from the purchase and sale and purchase by the Directors or Officers of securities of the Association within the meaning of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any state statutory law or common law;

15
(5) brought about or contributed to by the dishonesty of the Directors or Officers.  However, notwithstanding the foregoing, the Directors or Officers shall be protected under the terms of this policy as to any claims upon which suit may be brought against them, by reason of any alleged dishonesty on the part of the Directors or Officers, unless a judgment or other final adjudication thereof adverse to the Directors or Officers shall establish that acts of active and deliberate dishonesty committed by the Directors or Officers with actual dishonest purpose and intent were material to the cause of action so adjudicated.

16
....

4. LIMITS OF LIABILITY

17
....

18
(d) Claims based on or arising out of the same act, interrelated acts, or one or more series of similar acts, of one or more of the Directors or Officers shall be considered a single Loss and the Insurer's liability shall be limited to the limit of liability stated in Clause 4(b) and 4(c).  In the event that more than one Director or Officer is included in the same Loss, it shall be expressly understood that the total amount of such Loss, for the purpose of determining the aggregate limit for each such involved Director or Officer, shall be apportioned pro rata among each such involved Director or Officer unless otherwise mutually agreed upon by the Director or Officer and the Insurer.

5. COSTS, CHARGES AND EXPENSES

19
(a) No costs, charges and expenses shall be incurred or settlements made without the Insurer's consent which consent shall not be unreasonably withheld;  however, in the event such consent is given, the Insurer shall pay, subject to the provisions of Clause 4, such costs, settlements, charges and expenses.

20
....

21
(c) The Insurer may at its option and upon request, advance on behalf of the Directors or Officers, or any of them, expenses which they have incurred in connection with claims made against them, prior to disposition of such claims, provided always that in the event it is finally established the Insurer has no liability hereunder, such Directors and Officers agree to repay to the Insurer, upon demand, all monies advanced by virtue of this provision.

22
The policy covered each loss for up to $1 million each year for each director, with an aggregate annual limit for each director.

23
In 1980, First Savings became insolvent and the Federal Savings and Loan Insurance Corp.  ("FSLIC") took control of the institution.  In 1982, First Hawaiian Bank and FSLIC, as assignees of various shareholders' direct and derivative claims, filed the underlying lawsuits in federal district court against all eight directors of First Savings.   See FSLIC v. Alexander, 590 F.Supp. 834 (D. Hawaii 1984).  Each director hired defense counsel in the underlying lawsuits and sought payment from MGIC for the fees incurred.  MGIC agreed to pay the costs as they came due, but reserved its rights to contest coverage and to demand reimbursement if the policy did not cover the claims involved.

24
All eight directors accepted payments with MGIC's reservation of rights for nearly two years.  After that time three of them, the insureds here, refused to accept payment with the attached reservation of rights.  MGIC therefore stopped paying the defense costs of the three directors, who then filed this action in federal district court seeking a declaratory judgment that MGIC had a duty to pay, without condition, defense costs in the underlying litigation as those costs were incurred.  The defense costs in the underlying lawsuits exceeded $1 million at the time of the district court decision.

25
The district court granted the insureds' motion for summary judgment.  It ruled, first, that the policy was ambiguous because clause 5(c) conflicted with clause 1(d) and that the policy should be read against MGIC as the drafter of the adhesion contract.  The court concluded that MGIC had a duty to pay the insureds' defense costs in the underlying action as they came due.

26
Second, the district court ruled that the underlying lawsuits involved separate alleged acts, each of which was a potential "loss" and could have given rise to a distinct claim.  Therefore, even though the acts culminated in one result, First Savings' financial collapse, multiple potentially covered "losses" were involved.  Because of the policy limits, MGIC could be liable for "multiple millions" in the underlying lawsuits.

27
Finally, the district court found that MGIC acted in bad faith because it "has refused to affirm or deny coverage, tender defense costs when due, or enter into settlement negotiations."    MGIC timely appeals.II.

28
The district court had diversity jurisdiction over this case.1   "A federal court applies the choice of law rules of the state in which it sits ... to determine the substantive law to apply in a diversity action."   Lettieri v. Equitable Life Assurance Soc'y of the United States, 627 F.2d 930, 932 (9th Cir.1980) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941)).  Hawaii courts apply Hawaii state law when the acts covered by the policy occur in Hawaii, the insureds are Hawaii citizens, and the insurance company is not a Hawaii citizen.   See, e.g., Crawford v. Ranger Ins. Co., 653 F.2d 1248, 1250 (9th Cir.1981);  State Farm Mut. Auto. Ins. Co. v. Bailey, 58 Hawaii 284, 568 P.2d 1185 (1977).  Thus, Hawaii law governs this case.

29
We review de novo grants of summary judgment, First Ins. Co. v. State, 66 Hawaii 413, 416, 665 P.2d 648, 651 (1983), and contract interpretations, Hanagami v. China Airlines, Ltd., 688 P.2d 1139, 1144 (Hawaii 1984).

III.

30
Section 1(d) of the MGIC policy explains the limits of coverage.  The policy covers "Loss," which is defined as "the amount which the Directors and Officers are legally obligated to pay ... for a claim or claims made against the Directors and Officers for Wrongful Acts."    This language establishes the policy as a liability, rather than indemnity, policy.  This interpretation is confirmed by the captions to the policy's declarations, which clearly denominate the policy as "liability insurance."

31
MGIC does at times cryptically refer to its policy as an "indemnity-type policy."    Insureds assert that MGIC argued earlier that the policy was an indemnity policy in an effort to avoid contemporaneous liability for defense costs.  Whatever the case may be, the policy here is a liability policy.  As the Fifth Circuit explained in Continental Oil Co. v. Bonanza Corp., 677 F.2d 455 (5th Cir.1982):

32
In a liability contract, the insurer agrees to cover liability for damages.  If the insured is liable, the insurance company must pay the damages.  In an indemnity contract, by contrast, the insurer agrees to reimburse expenses to the insured that the insurer is liable to pay and has paid.

33
Id. at 459.  The policy here, based on loss as incurred and not as loss paid out by insureds, is a liability policy.

34
Since the policy is for liability rather than indemnity, payment by MGIC for loss is not conditioned upon the payment of damages by the directors.  Whenever "loss" occurs (i.e., whenever the directors are "legally obligated to pay" on a covered claim), MGIC must pay that amount.  The policyholders thus are assured that they need not expend their own funds in order to receive protection for liability.

35
The costs of the "defense of legal actions" are included in the definition of "Loss" in section 1(d).  Thus, in the absence of other provisions, the policy demands that MGIC pay those costs when the directors become legally obligated to pay them.  The issue in this case is whether MGIC effectively excluded such contemporaneous payment of costs by modifying the general rule encompassed in section 1(d).

36
MGIC claims that the provisions of section 5 of the policy (governing "costs, charges and expenses") exclude legal costs from the general rule of contemporaneous recovery.  Section 5(a) qualifies the contemporaneous duty to pay costs, charges, and expenses by giving MGIC the right of approval over such expenditures.  MGIC's discretion in reviewing costs, charges, and expenses, however, is not unlimited, for approval may not be "unreasonably withheld."    MGIC argues that the "defense of legal actions" referred to in section 1(d) is included in the "costs, charges and expenses."

37
MGIC argues that section 5(c) further limits payment.  Section 5(c) allows the payment of "expenses" prior to the disposition of claims.  The payment of expenses, however, is within the complete discretion of MGIC.  Nowhere does the policy define expenses, or explain how those expenses differ from the broader language of section 5(a), which covers "costs, charges and expenses."    We therefore know that the defense of legal actions is covered by the policy, that costs, charges and expenses must be approved by MGIC, but that expenses are excluded from the general duty of contemporaneous payment.

38
We must interpret the policy to determine whether "expenses," excluded from contemporaneous payment under section 5(c), contain the "defense of legal actions," covered under section 1(d).  It is a commonplace that a contract is interpreted to conform to the expectations of the parties at the time of the contracting.  See E. Farnsworth, Contracts Sec. 77.7, at 478 (1982) ("The language of a contract is directed, not at describing experience, but at controlling human behavior....  The concern of the court is not the truth of this language but with the expectations that it aroused in those parties.").  In contracts of insurance, however, Hawaii law applies a strict form of the rule of construction against the drafter of a contract.   See Hurtig v. Terminix Wood Treating & Contracting Co., 692 P.2d 1153, 1154 (Hawaii 1984) ("[I]nsurance policies must be construed liberally in favor of coverage because they are contracts of adhesion.").  Thus in examining the entire contract to ascertain and fulfill the reasonable expectations of the parties, see Sturla, Inc., v. Fireman's Fund Ins. Co., 67 Hawaii 203, 209, 684 P.2d 960, 964 (1984), conflicts will be resolved in favor of the insured since MGIC controlled the language of the agreement.

39
With this background, the contract cannot be read to exclude defense costs from the effect of the general rule of a liability policy.  Given the prosecution of this suit, MGIC clearly intended to exclude attorneys fees from immediate payment.  At the time critical to our inquiry, however, the time of contracting, it could not have been clear to insureds that they would not be protected from the costs of fees.  Section 1(d) provides the coverage in clear language;  section 5(c) (we now know) attempts to postpone that coverage pending determination of liability on the underlying claims.  The language of section 5(c) simply is unclear in its attempt.  Nowhere are "expenses" defined;  nor is it explained how they differ from the broader category of "costs, charges and expenses" of section 5(a).  As one court recently noted in following our previous discussion of this policy, "the large print giveth and the small print taketh away."   Little v. MGIC Indem. Corp., 649 F.Supp. 1460, 1465 (W.D.Pa.1986).  Were the effect of the "small print" exception clear, we could not uphold the district court's interpretation.  Where, however, the attempted disclaimer is unclear, the insureds reasonably could have believed that contemporaneous payment for legal defense was assured.   See Hurtig, 692 P.2d at 1154 ("Coverage exists under the policy unless the exclusions clearly provide otherwise.").  To rule otherwise would be to force insureds to rewrite a contract that they have no power to rewrite.

40
Our decision need not create havoc in the already disturbed field of D & O liability insurance.2   Reports discussing policies similar to the one at hand demonstrate a wide variety of policy language.3   The leading policy in this field, Lloyd's of London's "Lydando No. 1," upon which the MGIC policy appears to be based, contains references to costs, charges, and expenses in general.  When the policy means to refer to defense costs, however, it expressly does so, avoiding the confusion that is MGIC's downfall here.  See Lloyd's Lydando No. 1 Policy Form Sec. 6(C), reprinted in Hinsey, The New Lloyd's Policy Form for Directors' and Officers' Liability Insurance--An Analysis, 33 Bus.Law. 1961 (1978).

41
This result works no particular hardship on MGIC.  MGIC's liability is limited to losses incurred with covered claims.  Section 3 of the policy defines claims that are not covered, and therefore the claims upon which MGIC need not pay for the directors' defense.  As the district court found, the coverage may be determined by the nature of the underlying complaint.  608 F.Supp. at 389.  For example, if a libel claim is filed against a director, MGIC need not pay for the legal defense, since section 3(a)(1) expressly excludes libel and slander claims from coverage.  Complaints based on the first four exceptions (libel and slander, illegal profit or advantage, illegal compensation, and short-swing profits) should be easily determined from the pleadings.

42
The one exclusion from coverage that may be difficult to determine from the pleadings, section 3(a)(5), employs a mechanism to meet this problem.  Section 3(a)(5) excludes loss brought about by the "active and deliberate dishonesty" of the directors.  The exclusion is subject to a special provision that mandates payment unless a final judgment has been rendered confirming the directors' dishonesty.  Section 3(a)(5) thus broadens coverage for the one case where coverage cannot be determined until judgment is reached.  The district court in Little reached this same conclusion.   Little, 649 F.Supp. at 1465.

43
If an action against the directors incorporates both covered and uncovered claims, the parties must apportion the costs so that MGIC need only pay for amounts generated in defense of covered claims.  The apportionment of costs between covered and uncovered claims may be a troublesome problem, but it is one often met under these policies.4   It is certainly no reason to accept MGIC's characterization of the agreement.

44
This suit was instituted at the behest of directors who refused to accept MGIC's reservation of rights regarding the costs advanced.  MGIC may, of course, in payment of costs on covered claims as those costs come due, reserve its rights pursuant to the contract should the claims ultimately prove uncovered.  For example, MGIC, while advancing costs, may reserve its rights under section 3(a)(5) should the directors' acts ultimately prove intentional rather than negligent.  The directors have a right to the contemporary payment of costs.  They have no right, however, to the unconditional payment of costs, when those conditions were clearly and unequivocally expressed.

45
We conclude that the district court correctly ruled that MGIC must make contemporaneous payments for legal defense on claims covered by the policy.  MGIC may reserve its rights under the agreement, however, for the return of advances should the claims ultimately prove to be uncovered.

IV.

46
MGIC argues that the district court finding of more than one potentially covered "loss" was premature, and that the evidence does not support the court's finding of more than one potential loss.  The finding was not premature, however, because MGIC had paid more than $1 million.  Because the policy limits are $1 million for each "loss," the court had to consider whether MGIC needed to pay any more defense costs.  If more than one loss was involved, MGIC would continue to be responsible for the defense costs.  The facts on which the district court based its finding are undisputed and, if true, establish that the district court was correct.

47
MGIC concedes that more than $1 million has been expended for defense costs in the underlying lawsuits, but argues that this amount is irrelevant because these defense costs are not a "loss" under clause 1(d), but rather an optional payment under clause 5(c).  Therefore, MGIC argues, no "loss" has been paid;  the first $1 million has not been expended, and it is unnecessary at this stage to determine whether another $1 million or more is available.5   MGIC's argument rests primarily on its related argument that it had no duty to defend the underlying lawsuits.  MGIC concedes that if it had a duty to defend then the defense costs would come out of the $1 million increments.  However, its prematurity argument collapses because we find that it must make contemporaneous payments for legal defense on claims covered by the policy.

48
The district court found that the underlying lawsuits alleged several distinct acts potentially covered by the MGIC policy.6   The district court reasoned that more than one "loss" can culminate in one overall result, First Savings & Loan's failure, but one result does not require finding only one "loss."    Finally, the court reasoned that the parties contemplated more than one loss because the directors chose a $1 million "per loss" policy rather than one with a $1 million ceiling.7   Thus, the district court finding was timely and correct.

V.

49
The district court improperly granted summary judgment on the issue of MGIC's bad faith.  Summary judgment is appropriate only when " 'there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.' "   First Ins. Co. v. State, 66 Hawaii 413, 416, 665 P.2d 648, 651 (Hawaii 1983) (citations omitted).  None of the grounds on which the district court based its findings of bad faith--refusal to pay defense costs without reserving its rights, refusal to affirm or deny coverage, and failure to enter settlement negotiations--could have been resolved on summary judgment.  MGIC argues that disputed material facts remain.  We agree.

50
Moreover, it is unclear whether Hawaii would recognize a duty of good faith and fair dealing for insurance contracts, or bad faith for a breach of such a duty.  Neither party cites Hawaii cases, the district court cites a California case for this proposition, and no Hawaii case appears to discuss this issue directly.  We need not decide whether Hawaii would adopt this rule, however, because the district court improperly resolved the bad faith issues on summary judgment.

51
The court erred in finding that MGIC acted in bad faith by advancing defense costs with a reservation of its rights to contest coverage and demand reimbursement.  We agree with MGIC that it was reasonable to reserve its rights because coverage liability had not been resolved.   See First Ins. Co., 66 Hawaii at 422, 665 P.2d at 654 (discussing reservation of rights without discussing bad faith).  We also agree with MGIC that its advancement of defense costs of more than $1 million in the underlying lawsuits raises a material factual dispute as to its good faith.

52
The district court also erred in finding bad faith in MGIC's refusal to affirm or deny coverage.  This conduct was consistent with its reservation of rights to contest coverage.  In addition, whether it refused to address the possibility of coverage is a disputed material fact.

53
Finally, the district court erred in finding that MGIC acted in bad faith by refusing to enter settlement negotiations on behalf of the insureds in the underlying lawsuits.  The court cites ACandS, Inc. v. Aetna Casualty & Sur. Co., 666 F.2d 819 (3d Cir.1981), in support of its finding.  That case holds that an insurance company has a duty to settle in good faith.  MGIC does not contest this general rule.  However, the record does not support the finding in this case because of material factual disputes;  the breach of a duty to settle in good faith depends on the reasonableness of the insurer's conduct.  MGIC contests the finding that it refused to enter settlement negotiations.  MGIC argues that it did participate in settlement talks;  that it asserted its right to participate in settlement negotiations, but that the defendants in the underlying action refused to allow MGIC to participate.  The insureds concede that MGIC "insisted on its right to be present at settlement discussions."

54
Thus, because of the uncertainty as to whether Hawaii would adopt the insurance "bad faith" developments of other jurisdictions, and because the district court erred in resolving the issue on summary judgment when material facts were disputed, we reverse the finding of bad faith.

VI.

55
We affirm the grant of summary judgment in favor of the insureds on the first two rulings:  that the policy created a contemporaneous duty to pay costs and that the underlying lawsuits involved more than one potentially covered "loss."    MGIC may reserve its rights under the contract for return of the advances should the losses ultimately prove uncovered.  Because disputes of material fact remain, and because it is unclear whether Hawaii recognizes the duty of good faith and fair dealing in insurance contracts, we reverse the summary judgment on the ruling that MGIC acted in bad faith.

56
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

1
 The plaintiffs were citizens of Hawaii, and the defendant was a New York corporation with its principal place of business in Wisconsin.  Because the insureds alleged that they each accrued over 200 hours of defense counsel costs and that MGIC was liable for the costs, each fulfilled the $10,000 amount in controversy required for diversity jurisdiction.  See 28 U.S.C. Sec. 1332

2
 See Comment, Void Ab Initio:  Application Fraud as Grounds for Avoiding Directors' and Officers' Liability Insurance Coverage, 74 Calif.L.Rev. 929, 929 (1986)

3
 Compare the MGIC policy with the policy interpreted in Pepsico, Inc., v. Continental Casualty Co., 640 F.Supp. 656, 659-60 (S.D.N.Y.1986), and other policies discussed therein

4
 See W. Knepper, Liability of Corporate Officers and Directors, 642-43 (3d ed, 1978) (discussing the apportionment of defense payments between covered directors and the uncovered corporation)

5
 The district court and both parties apparently agree that MGIC's duty to pay defense costs, if one exists, will end when the costs exceed the policy limits.  It is unclear whether the agreement is based on the policy language that defense costs constitute a "loss" or on a general rule that the duty to defend lapses when the policy limits are exhausted

6
 For example, "(1) voting at separate times to authorize spot loans to home buyers;  (2) authorizing five separate, unrelated large condominium project loans;  [and] (3) ordering the move and renovation of corporate headquarters without having sufficient funds therefor."

7
 The insureds chose the more expensive option for limits of liability, which provided for $1 million each loss, with an aggregate limit each policy year for each director and officer.  The other option would have provided $1 million each year, regardless of the number of suits or the number of Directors and Officers insured


440 So.2d 567 (1983)
Carmaleta KENCHEL
v.
Thomas KENCHEL.
Civ. 3868.
Court of Civil Appeals of Alabama.
October 12, 1983.
*568 David H. Meginniss of Hornsby, Blankenship, Robinson & Meginniss, Huntsville, for appellant.
M.H. Lanier and H. Harold Stephens of Lanier, Shaver & Herring, Huntsville, for appellee.
HOLMES, Judge.
This is a divorce case.
The trial court after an ore tenus hearing divorced the parties, made an award of alimony in gross to the wife, and required the husband to pay child support. The parties agreed upon a division of property.
The wife appeals, contending in effect that the trial court erred in failing to award periodic alimony. We find error in the trial court's action and reverse.
Viewing the record with the attendant presumptions accorded the trial court's action, the following is pertinently revealed:
The parties to this action were married twenty-seven years. There were two children born of the marriage, the oldest twenty-one years old and the youngest fifteen.
At the time of the divorce hearing, the wife was fifty-one years old. The wife has a high school education. She worked full time during the first years of marriage, but subsequently gave up regular employment, working only from time to time at various jobs such as selling "Avon" cosmetics and trading at flea markets. During this time, the wife took care of the house and the children. At the time of the divorce hearing, the wife had been employed for the past year and a half as a "linen buyer" at a department store. Her net weekly pay amounts to $103.46.
The husband works as the advertising manager for Martin Industries and has been employed there approximately twenty years. The husband's gross pay is $2,915 per month. From that amount the husband takes home $1,280 per month. We note, however, that some $400 of the money deducted from the husband's monthly check is deducted at the husband's request to cover, at least in part, the daughter's college expenses and "emergency funds." At the time of the hearing the daughter was expected to graduate in less than a year.
The marital home is worth somewhere between $167,000 and $195,000 with a mortgage of approximately $13,000. Shortly before the divorce, the parties purchased a lake front lot worth approximately $40,000. There is a mortgage on the lot for almost that same price. In addition to the two mortgages, the husband testified that he has borrowed approximately $6,000 on his insurance policies and some $2,500 from his father. The husband also borrowed $2,000 from his credit union, that debt being deducted from his pay check at the rate of $200 a month.
With the above before it, the trial court entered a decree providing as follows:
As indicated, the parties agreed to a division of property whereby each acquired certain items of household and personal property. Additionally, the wife received a 1973 Cadillac automobile and the husband got a 1973 Gremlin automobile and a 1968 pickup truck. The trial court ordered the wife to deed all of her interest in the lake lot to the husband with the husband responsible for the mortgage. The court also ordered that the marital house be sold for not less than $167,000 and the proceeds divided equally after the mortgage and certain other expenses were deducted.
The trial court's decree also required the husband to pay $250 per month as child support for the one minor child.
Additionally, and most pertinently, the husband was required to pay $200 per month as "periodic alimony" beginning in *569 May 1983 and continuing for a period of five years.
We note that the trial court and both parties refer to the award of alimony as being periodic alimony; however, the award is more properly alimony in gross. The specific designation of an alimony award as being in gross is not necessary; the lack of such a label will not defeat a provision which in substance provides for an award of alimony in gross as part of a property settlement. In other words, the substance of the award takes precedence over the form or label. Hartsfield v. Hartsfield, 384 So.2d 1097 (Ala.Civ.App.1980). For alimony to be in gross it must satisfy two requirements, (1) the time of payment and the amount must be certain, (2) the right to alimony must be vested. Ex parte Hager, 293 Ala. 47, 299 So.2d 743 (1974). In the present case, clearly the time and amount of payment are certain and it is apparent to this court that the award is not modifiable and hence "vested." It is therefore clear to this court that the award qualifies as alimony in gross.
In view of the above, the dispositive issue is whether the trial court erred in failing to award periodic alimony.
It is well known that the award of alimony is within the sound discretion of the trial court and its decision will not be disturbed on appeal absent plain and palpable abuse of that discretion; however, the trial court's decision is subject to appellate review and revision. Davis v. Davis, 274 Ala. 277, 147 So.2d 828 (1962).
Considering the trial court's decision on the interrelated matters of child support, alimony, and property division along with the particular facts and circumstances of the case, this court cannot say that the trial court erred in failing to award a specific amount as periodic alimony. In other words, after consideration of all the evidence and all other reasonable inferences drawn therefrom, this court cannot say that the trial court was plainly and palpably wrong. Austin v. Austin, 408 So.2d 138 (Ala.Civ.App.1981); Peterson v. Peterson, 403 So.2d 236 (Ala.Civ.App.1981), writ denied, 403 So.2d 239 (Ala.1981). To do so would be to substitute our judgment for that of the trial court. This the law does not permit. Allen v. Allen, 385 So.2d 1323 (Ala.Civ.App.1980). However, we find that the trial court erred in not at least reserving the right to award periodic alimony in the future. We therefore reverse on this ground. Parker v. Parker, 392 So.2d 229 (Ala.Civ.App.1980).
The wife's limited earning capacity, her age, the husband's ability to earn, the length of the marriage, and the property division are such that while the trial court did not err in failing to award periodic alimony, it was error at least not to reserve the right to award periodic alimony. Although the wife could receive, under one view of the evidence, some $70,000 on the sale of the marital home, it is not certain when or if this sum will in fact be realized. Considering the above with the wife's precarious economic status, to wit, minimum wage earner, of somewhat advanced age, the failure to reserve the right to award periodic alimony is reversible error. See Parker v. Parker, 392 So.2d 229 (Ala.Civ. App.1980). Needless to say, all other aspects of the learned trial judge's decree are affirmed.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THE ABOVE.
WRIGHT, P.J., and BRADLEY, J., concur.


UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JENNINGS V. HELTON, JR.,
Plaintiff-Appellee,

v.

NATIONWIDE MUTUAL INSURANCE
COMPANY; NATIONWIDE MUTUAL FIRE
INSURANCE COMPANY; NATIONWIDE
LIFE INSURANCE COMPANY;
                                                                   No. 97-1172
NATIONWIDE GENERAL INSURANCE
COMPANY; NATIONWIDE PROPERTY AND
CASUALTY COMPANY; NATIONWIDE
VARIABLE LIFE INSURANCE COMPANY;
COLONIAL INSURANCE COMPANY OF
CALIFORNIA,
Defendants-Appellants.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Elizabeth V. Hallanan, Senior District Judge.
(CA-95-298-5)

Argued: December 1, 1997

Decided: January 15, 1998

Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.

_________________________________________________________________

Reversed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: William Henry Jernigan, Jr., JACKSON & KELLY,
Charleston, West Virginia, for Appellants. Michelle Maria Memena
Price, KING, ALLEN & GUTHRIE, Charleston, West Virginia, for
Appellee. ON BRIEF: Taunja W. Miller, JACKSON & KELLY,
Charleston, West Virginia; David L. White, WHITE, SMITH, MOR-
GAN & SCANTLEBURY, L.C., Bluefield, West Virginia, for Appel-
lants. Robert A. Goldberg, KING, ALLEN & GUTHRIE, Charleston,
West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellee, Jennings V. Helton, was an exclusive agent for appel-
lants, the Nationwide Insurance Companies. Helton had been an agent
(though not always an exclusive one) for the Nationwide Companies
for more than twenty years when the Nationwide Companies termi-
nated Helton's agency agreement on March 19, 1993. Helton brought
suit in state court alleging, inter alia, that the Companies' termination
of their agency agreement with him violated W. Va. Code § 33-12A-1
et seq. (the "Agency Act"). The Nationwide Companies removed the
case to federal court.

The Agency Act prohibits an insurance company from terminating
an exclusive agency relationship controlled by a written contract in
effect for more than five years, except for "good cause" and after giv-
ing at least 90 days notice to the agent. W. Va. Code § 33-12A-3. The
West Virginia Supreme Court of Appeals held in Shell v.
Metropolitan Life Insurance Co., 380 S.E.2d 183 (W. Va. 1989), that
the Act violated the contracts clauses of the Federal and West Vir-
ginia Constitutions as applied to contracts entered into before the
effective date of the Act -- June 1, 1984. Thus, the Agency Act only
applies to the contract in this case if it was entered into after that date.

Helton entered into his first written agency agreement with the
defendants in 1972. In accordance with the Nationwide Companies'

                     2
policy, Helton kept the signed agency agreement in a binder, together
with supplemental documents. J.A. at 301-02, 367-68. That agree-
ment was replaced by a new, signed agreement in 1974, and thereafter
there were sequential replacement agreements in 1977, 1981, and
1983. J.A. at 368-74. Each of the agreements was on a printed form,
with the blanks completed by the parties, and signed by both Helton
and an authorized representative of the Nationwide Companies. By its
terms, each new agency agreement became effective when it was exe-
cuted and delivered, and it superseded all prior agreements. J.A. at
368-74. Helton was instructed by the Companies to replace the old
agency agreement in the binder with the new agreement and to dis-
card the old agreement. J.A. at 301-02, 680-81.

At the time the Nationwide Companies terminated their agency
relationship with Helton, his binder contained a completed, signed
agency agreement dated February 10, 1983 (the "1983 Agreement").
J.A. at 930-38. The binder also contained an unsigned 1985 form
agency agreement (the "1985 Agreement"), the blanks on which were
not filled in. J.A. at 951-57. If the 1983 Agreement governed the par-
ties' relationship at the time the Nationwide Companies terminated
Helton, then his Agency Act claim is precluded by the Shell decision.
Helton contends, however, that both he and the Nationwide Compa-
nies evidenced their assent to the 1985 Agreement through their
course of conduct and that, since that agreement postdates the effec-
tive date of the Agency Act, he has a valid claim under that Act.

The district court submitted to the jury the question of whether the
1983 or 1985 contract was the governing agency contract at the time
of Helton's termination, and the jury found that the 1985 Agreement
was the governing contract. The jury also found that, although defen-
dants had "good cause" to terminate plaintiff, they had not given him
the 90 day notice required by the Agency Act. The jury thus awarded
Helton compensatory damages for his termination.

We hold that the district court erred in submitting Helton's Agency
Act claim to the jury and denying defendants' motion for judgment
as a matter of law. Helton had the burden of proving that the
unsigned, incomplete 1985 form Agreement was both assented to and
substituted for the signed, completed 1983 Agreement. The 1985
Agreement provides that "[t]he execution and delivery of this Agree-

                    3
ment shall supersede and take the place of any prior Agreement." J.A.
at 957. Thus, by its terms, the 1985 Agreement could only supersede
the 1983 Agreement if it was executed and delivered. Indeed, even
the parties' preexisting 1983 Agreement provides that it can be
"changed, altered, or modified only in writing signed by [the agent]
and an officer of the Companies." J.A. at 936.

Not only was the 1985 Agreement unsigned, but it was also incom-
plete in other respects. As Helton concedes, the 1985 contract was not
signed by either party, despite the fact that the concluding provision
states that "IN WITNESS WHEREOF, the Agent has signed his name
and the Companies have caused their corporate names to be affixed
by their duly authorized representative" and also designates lines on
which the parties were to sign. J.A. at 957. Moreover, in the 1985
Agreement, the parties had not even filled in the contracting agent's
name, the states in which he was authorized to represent the Compa-
nies, or the effective date of the contract. See J.A. at 951-57. What-
ever the exact contours of the 1985 Agreement's"execution"
provision, we believe that as a matter of law it requires more than
Helton's receipt of a blank, unsigned form agreement and party con-
duct arguably consistent with that agreement's terms.

The district court's instruction to the jury that"[a] contract can
exist by virtue of the behavior of the parties and does not always
require any particular formalities such as a signature to be binding,"
J.A. at 845 (emphasis added), may correctly state general principles
of West Virginia contract law, but in this case the contract language
itself appears to preclude proof of assent through a course of conduct
rather than through signature or perhaps some other formal manifesta-
tion of assent. Even if Helton could prove that the parties' course of
conduct evidenced assent to some unwritten, de facto contract that
embodied terms similar to those in the 1985 Agreement, this showing
would be insufficient to sustain his Agency Act claim in any event,
because the Agency Act applies only to written contracts. See W. Va.
Code § 33-12A-3.

Accordingly, the district court erred in submitting Helton's Agency
Act claim to the jury, and the court's denial of defendants' motion for
judgment as a matter of law is therefore reversed.

REVERSED

                    4


535 F.2d 1251
U. S.v.Weeks
No. 75-1840
United States Court of Appeals, Fourth Circuit
3/30/76

1
E.D.Va.

AFFIRMED


779 F.2d 1139
UNITED STATES of America, Plaintiff-Appellee,v.Carl Thomas GUICHARD, Defendant-Appellant.
No. 85-1096.
United States Court of Appeals,Fifth Circuit.
Jan. 8, 1986.

Steve John Williams, Irving, Tex.  (Court-appointed), for defendant-appellant.
Marvin Collins, Fort Worth, Tex., James A. Rolfe, U.S. Atty., Christopher Lee Milner, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before GARWOOD, HIGGINBOTHAM, and DAVIS, Circuit Judges.
GARWOOD, Circuit Judge:

1
Appellant Carl Thomas Guichard appeals his conviction for mailing a threatening communication in violation of 18 U.S.C. Sec. 876, to which he pleaded guilty, claiming primarily that there was a failure to fully comply with Fed.R.Crim.P. 11 ("Rule 11").  We affirm.

Facts and Proceedings Below

2
Appellant was charged with four counts of violating 18 U.S.C. Sec. 876, which makes it a crime to send threatening communications through the mail.  The indictment alleged that on four separate occasions between October 11 and October 28, 1984, the appellant knowingly and wilfully caused to be delivered by the United States Postal Service letters threatening to injure Lorraine Diane Karkosky, his common-law wife.1   In one letter mentioned in the indictment, Pat Karkosky, Lorraine's mother, was also threatened.  On December 20, 1984, appellant pleaded not guilty to these charges during his initial arraignment.

3
Pursuant to a later plea bargain, appellant subsequently pleaded guilty at his rearraignment to one count of mailing a threatening communication in return for the dismissal of the remaining three counts.  A Rule 11 proceeding was then conducted and Judge Buchmeyer thereafter accepted appellant's guilty plea.  On February 1, 1985, Judge Porter, after a sentencing hearing, assessed appellant a three-year sentence.  At this hearing, appellant stated that he was prompted to mail the letters because Lorraine Karkosky had left him and taken their two children away from Houston, where he lived, to Dallas.

4
After being sentenced, appellant filed his notice of appeal.  He now asserts four respects in which Rule 11 allegedly was not complied with and which he claims vitiate his conviction:  (1) that he was not informed that a guilty plea waives his right to confront the witnesses against him, (2) that he was not informed of the exact nature of the charge against him, (3) that the district judge failed to inquire whether the plea was being made freely and voluntary, and (4) that his guilty plea lacked a sufficient basis in fact and should not have been accepted.

Discussion
Rule 11

5
Rule 11 "creates a prophylactic scheme designed to insure both that guilty pleas are constitutionally made and that a full record will be available in the event that a challenge is made to the plea."   United States v. Adams, 634 F.2d 830, 837 (5th Cir.1981).  To this end, Rule 11 specifies a long list of substantive and procedural requirements to be observed before a guilty plea is accepted.  This Court does not, however, require "letter-perfect" compliance with all of these requirements.   See United States v. Dayton, 604 F.2d 931, 939 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980).  Indeed, in 1983 Rule 11(h) was added to ensure application of a harmless error rule in appeals based on noncompliance.

6
In Dayton, we held en banc that if the three core concerns of Rule 11 are met--that the guilty plea is free from coercion, that the accused understands the nature of the charges against him, and that the accused knows the direct consequences of his guilty plea--there is no violation of the body or spirit of Rule 11.   Dayton, supra, at 939-40.  We found that reversible error exists only when there is an "entire failure" to address any of the three core concerns of Rule 11.   Id. at 939-40.  However, an "inadequate address," or less than "letter-perfect" compliance with Rule 11, is harmless error if the three core concerns are met and the accused has shown a desire "to come to terms with the legal system, and to admit his fault."   Id. at 940.  We noted that an earlier intimation by the Supreme Court that "prejudice inheres in a failure to comply with Rule 11," McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 1173, 22 L.Ed.2d 418 (1969), concerned a much simpler version of Rule 11 than the Rule at issue in Dayton.  Dayton, supra, at 939-40.    McCarthy, we found, was concerned with the core values of Rule 11 and should not be extrapolated to require strict compliance with the "punctilios" of a now greatly expanded and more detailed Rule 11.  Id. at 940.  The dissent in Dayton disagreed with this analysis, observing that "[a]lone among the circuits that have considered the question, this court now refuses to require literal compliance with Rule 11."   Id. at 948 (footnote omitted).  Thus, even before the adoption of Rule 11(h) we held that specific Rule 11 rights are often ancillary to the larger McCarthy concerns, and that all Rule 11 errors do not therefore require automatic reversal.

Confrontation of Witnesses

7
Appellant claims that during the Rule 11 proceeding accompanying his guilty plea the district judge failed to warn him that his plea waived his right to confront the witnesses against him, as required by Rule 11(c)(3).2   The record does indeed indicate that the district court neglected expressly to inform appellant that a guilty plea waived his right to confront witnesses, but the record also shows that all of the other requirements of Rule 11, in particular Rule 11(c), were met.3   Thus, as appellant claims, the record contains technical error.  As noted, however, reversal requires more than this;  it requires an entire failure to meet a core concern.  See id.

8
Of the three core concerns of Rule 11, only the requirement that the accused knows the direct consequences of his plea is implicated when the accused alleges that he was not informed that a guilty plea waived his right of confrontation.  In determining whether the appellant was knowledgeable of these consequences, we observe that he was informed of all other Rule 11 rights, including, inter alia, that he waived the right to a jury trial, that he waived the right not to testify against himself, that he knew the maximum penalty against him, and that he waived the right to force the state to meet its burden of proof beyond a reasonable doubt.  See note 3, supra.    Where, as here, the only deficiency respecting this core concern is the singular failure to mention one Rule 11(c) right, here the right of confrontation, we cannot hold that this constitutes an "entire failure" to inform the appellant of the consequences of his plea.  Appellant knew he had waived a trial at which he did not have to testify and the government had to affirmatively prove his guilt, and could not rely on any failure of his to testify, all of which to a significant extent implies a waiver of the right of confrontation. Moreover, we observe that appellant had competent counsel who obviously had advised him both of the charge and the ramifications of a guilty plea.  We find, therefore, that appellant knew the consequences of his plea.   United States v. Caston, 615 F.2d 1111, 1115-16 (5th Cir.), cert. denied, 449 U.S. 831, 101 S.Ct. 99, 66 L.Ed.2d 36 (1980).

9
Additionally, in the past we have held similar types of errors harmless.  See Caston, supra, at 1115-16.  In Caston, for example, we held that despite the district judge's failure to inform the defendant of his right to a jury, of his right to the assistance of counsel at trial, of his right not to incriminate himself at trial, and that his sworn answers to the court's questions could be used against him in perjury charges, all of which are required by Rule 11, the error was harmless.  Caston, supra, at 1115-16.  We stated, "Although the trial judge did not comply adequately with Rule 11(c), we find that he did sufficiently determine that Caston understood the direct consequences of his plea including his waiver of certain constitutional rights."    Thus in Caston we found no entire failure of this core concern.   Id. at 1115 (citing Dayton, supra, at 942-43).  In Adams, supra, at 839, we focused on these broader core concerns by noting that "[t]he ban on judicial participation in plea discussions is not a 'technical' amendment to the Rule, as are, for example, the detailed explanations required of the judge by Rule 11(c)."    We also note that even before the quite substantial 1974 amendments which added most of Rule 11(c), see Rule 11(c) advisory committee notes to 1974 amendments, this Court had held that an error similar to the one here did not allow the defendant to plead anew.   United States v. Frontero, 452 F.2d 406, 415 (5th Cir.1971) (upholding guilty plea despite defendant not being informed that his plea waived the right of confrontation and the right of self-incrimination).

10
Our analysis is further strengthened by the addition of section (h) in the 1983 amendments to Rule 11, providing:  "Any variance from the procedures required by this rule which does not affect substantive rights shall be disregarded."    This amendment reversed the per se doctrine then in vogue for Rule 11 violations, see Dayton, supra, at 948 (dissent), and instituted a harmless error analysis.  Like Fed.R.Crim.P. 52(a), the harmless error provision for most other criminal case procedural violations, see Rule 11(h) advisory committee notes (discussing how McCarthy led many appellate courts to reject harmless error for Rule 11 cases), the new Rule 11(h) does not attempt to define harmless error.4

11
In the face of Rule 11(h), we are unwilling to expand the Dayton jurisprudence categories of Rule 11 transgressions which result in reversal.  In United States v. Corbett, 742 F.2d 173, 179 n. 14 (5th Cir.1984), one of our first decisions to discuss Rule 11(h), we stated that "[w]e are convinced ... that the addition of section (h) comports with our prior practice."    We further stated that "[c]learly, Rule 11(h), as applied to core concerns, is designed to forgive 'inadequate addresses' not 'entire failures.' "    Id.  The advisory committee to Rule 11(h) noted that the strict "prejudice inheres" rule of McCarthy Rule 11 violations is inapplicable to the current, expanded version of Rule 11.  It stated:

12
"[I]t is important to recall that McCarthy dealt only with the much simpler pre-1975 version of Rule 11, which required only a brief procedure during which the chances of a minor, insignificant and inadvertent deviation were relatively slight, [and] [t]his means that the chances of a truly harmless error ... are much greater under present Rule 11 than under the version before the Court in McCarthy."    Rule 11(h) advisory committee notes.

13
Although the committee does not specifically cite Dayton, the above passage is to a large extent an acceptance of the Rule 11 chronological analysis employed by this Court in Dayton to form our "core concern" approach for Rule 11 transgressions.5   Thus, we are justified in rejecting appellant's claims based on a Dayton analysis.

Nature of the Charge

14
Guichard further asserts that during the Rule 11 hearing he was not adequately advised of the nature of the charges against him and this, he claims, is also fatal to his plea.  He argues that the district judge merely asked a few perfunctory questions about the charge and failed to advise him in any meaningful manner.6   This contention is not well founded.

15
In United States v. Coronado, 554 F.2d 166, 173 (5th Cir.), cert. denied, 434 U.S. 870, 98 S.Ct. 214, 54 L.Ed.2d 149 (1977), this Court held that the district court in a Rule 11 proceeding " 'must explain the meaning of the charge and what basic acts must be proved to establish guilt.' "   Id. at 173 (quoting Woodward v. United States, 426 F.2d 959, 962 (3d Cir.1970)).  As the Supreme Court stated, the defendant must possess "an understanding of the law in relation to the facts."   McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969).  In analyzing whether this knowledge is attained by a defendant, we have stated that the district court "should address the problem on the assumption that the defendant is ignorant of the nature of the charges," Coronado, supra, at 172.

16
In this case, the record clearly shows that the appellant was informed of the nature of the charges against him.  The charge here is relatively simple.7   There are no technical terms likely to be unfamiliar to lay persons.  Likewise, there are no particularly subtle aspects of this offense which must be grasped before one can understand the charge.  In relatively simple cases of this sort, we have held that "a reading of the indictment, followed by an opportunity given the defendant to ask questions about it, will usually suffice."    Dayton, supra, at 938.  Here, the indictment was read to appellant and the district judge inquired thereafter into appellant's understanding of the charge.8

17
Appellant was sufficiently informed of the nature of the charge against him.  At appellant's initial arraignment, before the Rule 11 proceeding, the record shows that appellant was asked by the district judge whether he had spoken with counsel and appellant replied that he had.  The judge directly addressed the appellant and asked whether appellant understood the charges.  Appellant replied affirmatively.  At his rearraignment, where he pleaded guilty and the Rule 11 proceeding transpired, appellant was read the charges against him.  He was twice asked if he understood the charges and he twice replied that he did.  When asked, appellant stated that he had discussed the charge against him with his attorney.  The district judge also inquired whether appellant had any questions about the charge, and the appellant replied in the negative.  Further, appellant signed a "Factual Resume" that identified each and every element of the crime with which he was charged.9   The judge also asked appellant's counsel whether he thought appellant understood the charge.  Counsel replied affirmatively.  We find that the district judge more than adequately informed appellant of the nature and scope of the charge against him.

Voluntariness of Plea

18
Appellant also asserts that his plea is invalid under Rule 11 because the court failed to inquire fully whether the plea was made freely and voluntarily.10   Appellant claims that, as the Supreme Court has noted, a plea is not "voluntary ... unless the defendant received 'real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.' "   Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 2257-58, 49 L.Ed.2d 108 (1976) (citing Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 574, 85 L.Ed. 859 (1941)).

19
There has been no claim of coercion in the literal sense.  See Dayton, supra, at 938.  As to any claim of involuntariness grounded in appellant's lack of knowledge of the charge, we find, as noted above, that the district judge adequately established during the Rule 11 hearing that the appellant understood the charge against him.  The judge also advised the appellant of the rights he was waiving by his plea, and proceeded to question him as to any possible coercion or additional promises made by the government or prosecutor.  To the latter inquiry, the appellant responded negatively.  The fact that the court did not expressly use the precise word "voluntary" when addressing appellant does not render the proceedings insufficient.  Taken as a whole, the record shows that the court ascertained from appellant that the plea was in substance voluntary.  Further, counsel for appellant during the Rule 11 proceeding stated that it was his opinion that the plea was completely voluntary.

20
In United States v. Araiza, 693 F.2d 382, 385 (5th Cir.1982), we held that in the absence of overt coercion the district court may consider whether the defendant was closely assisted by counsel in determining the voluntariness of a plea.  Here, the record contains no hint of any coercion, and it makes apparent the direct and substantial participation of appellant's counsel in his plea decision.  Consequently, we find that appellant's claim that his lack of knowledge about the charges against him made his plea involuntary must fail.

Factual Sufficiency

21
Appellant's last Rule 11 claim is that his plea is invalid because the district judge did not develop a sufficient factual basis of his guilt before accepting the plea.11   Appellant specifically argues that a sufficient basis in fact is not presented on the record because the district judge neither heard testimony relating to his guilt nor sufficiently developed the record by other types of proof.  This claim, too, must fail.

22
In United States v. Antone, 753 F.2d 1301, 1305 (5th Cir.1985), we stated, "To support a guilty plea the prosecutor must present evidence to the subjective satisfaction of the district court which indicates that a defendant actually committed the offense to which he is pleading guilty."    This analysis cannot be applied in a vacuum, however, but must depend on the facts and circumstances present in each case.  See Dayton, supra, at 938.  Thus, we must now evaluate, using only the record, see Coronado, supra, at 172, the facts presented to support appellant's plea.

23
The record reflects that the district judge properly established that there was a factual basis for the plea as mandated by Rule 11(f).  When asked if there were any changes he would like to make just after the facts were recited to him, appellant replied in the negative.12   See United States v. Davila, 698 F.2d 715, 717-18 (5th Cir.1983).  Further, the charge was read before the court and appellant, and was thus entered into the record, see note 7, supra, and we have held that this may provide factual support for a guilty plea.  Antone, supra, at 1305.  Lastly, the appellant signed a factual resume which included facts that would have been necessary for conviction under the charge and presented this to the court, see note 9, supra.    With these matters reflected by the record, we find that the district judge had a sufficient factual basis to accept appellant's guilty plea.

24
Having rejected each of the appellant's contentions, we affirm the judgment of the district court.

25
AFFIRMED.

1
 There is doubt as to the marital status of Lorraine Karkosky and appellant.  Appellant claims she is his common-law wife, but apparently he is still married to a "former" wife because the divorce decree was never finalized.  Resolution of this question is not necessary for this appeal and therefore we do not decide it

2
 Fed.R.Crim.P. 11(c)(3) provides in pertinent part:
"(c) Advice to Defendant.  Before accepting a plea of guilty or nolo contendre, the court must address the defendant personally in open court and inform him of, and determine that he understands, the following:
"...."
"(3) that he has the right to plead not guilty or to persist in that plea if it has already been made, and he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself...."

3
 The following colloquy appears in the record of the defendant's rearraignment:
"THE COURT:  Do you understand the charges that are being made against you?
"THE DEFENDANT GUICHARD:  Yes, Your Honor.
"THE COURT:  Have you discussed those charges with Mr. Williams [defense counsel]?
"THE DEFENDANT GUICHARD:  Yes, Your Honor.
"THE COURT:  Have you discussed with him the penalties that might be imposed if I accept your plea of guilty?
"THE DEFENDANT GUICHARD:  Yes, Your Honor.
"THE COURT:  Do you understand that you have a right to plead not guilty?
"THE DEFENDANT GUICHARD:  Yes, Your Honor.
"THE COURT:  And do you understand that if you pled not guilty the Government would have the burden of proving that you were guilty beyond a reasonable doubt?
"THE DEFENDANT GUICHARD:  Yes, sir.
"THE COURT:  You understand you would have a right to a jury trial?
"THE DEFENDANT GUICHARD:  Yes, sir.
"THE COURT:  You understand you would have a right not to testify?
"THE DEFENDANT GUICHARD:  Yes, sir.
"THE COURT:  You understand that if you didn't testify during the trial that couldn't be held against you?
"THE DEFENDANT GUICHARD:  Yes, sir.
"THE COURT:  Do you understand that you give up these rights if you plead guilty?
"THE DEFENDANT GUICHARD:  Yes, Your Honor.
"THE COURT:  Now, have you discussed with your client the charges being made against him and the maximum penalties involved?
"MR. WILLIAMS:  Yes, sir.
"THE COURT:  In your opinion does he understand both?
"MR. WILLIAMS:  Yes, sir.
"THE COURT:  Then how do you plead to the charges in Count 1 of the Indictment?
"THE DEFENDANT GUICHARD:  Guilty, Your Honor."

4
 The advisory committee notes to Rule 11(h) do provide examples of what it considers to be harmless error.  The committee stated:
"Illustrative [of Rule 11(h) harmless errors] are:  where the judge's compliance with subdivision (c)(1) was not absolutely complete, in that some essential element of the crime was not mentioned, but the defendant's responses clearly indicate his awareness of that element ...;  where the judge's compliance with subdivision (c)(2) was erroneous in part in that the judge understated the maximum penalty somewhat, but the penalty actually imposed did not exceed that indicated in the warnings ...;  and where the judge completely failed to comply with subdivision (c)(5), which of course has no bearing on the validity of the plea itself...." (Citations omitted).

5
 The Sixth Circuit, one of the few circuits to yet stake a position on Rule 11(h), has taken a broad, unitary approach to the relatively new harmless error provision.   United States v. Stead, 746 F.2d 355, 356 (6th Cir.1984) ("The failure to mention the specific rights named by the defendant [the right against self-incrimination and the right to confront and cross-examine witnesses] does not preclude a finding that Stead voluntarily and intelligently entered his guilty plea.").  This is a far cry from the literal approach that the Sixth Circuit formerly followed.  Id.  This approach appears to look at all the surrounding facts in determining whether the error is harmless

6
 Rule 11(c)(1) provides in pertinent part:
"(c) Advice to Defendant.    Before accepting a plea of guilty or nolo contendre, the court must address the defendant personally in open court and inform him of, and determine that he understands, the following:
"(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole term...."

7
 At appellant's rearraignment, the district judge asked the Assistant United States Attorney to present the charge.  The prosecutor stated in pertinent part:
"On or about October 11, 1984 in the Dallas Division of the Northern District of Texas, defendant Carl Thomas Guichard, knowingly and wilfully caused to be delivered by the United States Postal Service ... a letter ... which letter contained a threat to injure the person of another;  to-wit, to kill Lorraine Diane Karkosky.  A violation of Title 18, United States Code, Section 876."
18 U.S.C. Sec. 876 provides, in pertinent part:
"Whoever knowingly so deposits or causes to be delivered ... any communication ... containing any threat to kidnap any person or any threat to injure the person ... shall be fined not more than $1,000 or imprisoned not more than five years, or both."
We find neither the charge nor the statute itself particularly complex.

8
 The appellant was read the charges against him, see note 7, supra, and the following colloquy then appears in the record of appellant's rearraignment:
"THE COURT:  Do you have any questions about the charges?
"THE DEFENDANT GUICHARD:  No, sir.
"THE COURT:  Do you understand the charges that are being made against you?
"THE DEFENDANT GUICHARD:  Yes, Your Honor."

9
 The appellant and his counsel prepared the following "Factual Resume", which they both signed:
"FACTUAL RESUME
"On or about October 11, 1984, in Irving, Texas, Defendant CARL THOMAS GUICHARD knowingly and wilfully caused to be delivered by the U.S. Postal Service, according to the directions thereon, a letter addressed to
"Larry Karkosky, American Western Custom Homes
"901 Esters Road, P.O. Box 154356
"Irving, Texas 75015
"which letter contained a threat to kill Lorraine Diane Karkosky."

10
 Rule 11(d) provides in pertinent part:
"(d) Insuring That the Plea is Voluntary.    The court shall not accept a plea of guilty or nolo contendre without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement."

11
 Rule 11(f) provides:
"(f) Determining Accuracy of Plea.    Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea."

12
 The following colloquy appears in the record of appellant's rearraignment after the government read into the record the "Factual Resume", see note 9, supra
"THE COURT:  Is that what happened?
"THE DEFENDANT GUICHARD:  Yes, Your Honor.
"THE COURT:  Are there any corrections that should be made in that factual statement that you know of from your conversation with your client?
"THE DEFENDANT GUICHARD:  No.
"MR. WILLIAMS [defense counsel]:  No."


                                                                                Opinions of the United
2005 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

7-12-2005

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

Docket No. 04-3001

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                                                                   NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

                                        No. 04-3001

                                   ASLLAN I. MEZINI,
                                          Petitioner

                                               v.

                  ATTORNEY GENERAL OF THE UNITED STATES,*
                                              Respondent

               *(Caption amended pursuant to Rule 43(c), Fed. R. App. Pro.)

                              Petition for Review of an Order
                           of the Board of Immigration Appeals
                                       (A95-356-281)

                        Submitted Under Third Circuit LAR 34.1(a)
                                     July 11, 2005

        Before: SLOVITER, McKEE, Circuit Judges, and FULLAM, District Judge *

                                  (Filed:    July 12, 2005)

                                            OPINION

_______________

*   Hon. John P. Fullam, Senior Judge, United States District Court for the Eastern
    District of Pennsylvania, sitting by designation.
SLOVITER, Circuit Judge.

       Asllan I. Mezini, a native and citizen of Albania, seeks review of a final order

issued by the Board of Immigration Appeals (“BIA”) on June 4, 2004, denying his

Motion to Reopen and Reconsider the BIA’s September 22, 2003, decision to sustain the

government’s appeal of the Immigration Judge’s (“IJ’s”) grant of asylum. This court has

jurisdiction pursuant to 8 U.S.C. § 1252. For the reasons stated below, we will deny the

Petition for Review.

                                             I.

       Because the parties are familiar with the factual and procedural background of this

case, we refer only to those facts that are pertinent to our disposition. Mezini entered the

United States as a nonimmigrant visitor on or around March 16, 2001, with authorization

to remain for a period not to exceed six months. In October, he applied for asylum. He

was interviewed by an INS 1 asylum officer who placed him in removal proceedings. At

the subsequent immigration hearing on July 31, 2002, Mezini conceded the charge of

removability, but renewed his application for asylum.

                    1
                    Effective March 2003, the Immigration and Naturalization
            Service (“INS”) ceased to exist as an independent agency within
            the Department of Justice and its functions were transferred to the
            Bureau of Citizenship and Immigration Services within the
            Department of Homeland Security. The BIA remains within the
            Department of Justice. Homeland Security Act of 2002, 6 U.S.C.
            §§ 271, 291.

                                              2
       In support of his application, Mezini testified that his godfather, an uncle, a

cousin’s spouse, and two friends were all killed by the Albanian government over a span

of more than fifty years. He recounted his own experiences with the Albanian secret

police, and his fear of persecution if removed to Albania. Mezini also testified that both

of his parents had been granted asylum in the United States, and his sister had been

granted withholding of removal. Although his father and sister were both available to

testify at the hearing, only Mezini testified.

       The IJ issued an oral decision on August 28, 2002, finding Mezini’s testimony

credible and granted him asylum. Less than a month later, the government filed a Notice

of Appeal with the BIA, arguing that the IJ’s decision was “arbitrary, capricious, and an

abuse of discretion,” made without any corroborating evidence, and that Mezini had not

met his burden of proof to establish eligibility for asylum. The government also argued

that the IJ improperly relied on facts not found in the record.2

       The government requested, and received, an extension to file its brief. One day

after the deadline, the government submitted a brief along with a Motion to Consider Late

Filed Appellate Brief. The BIA denied the motion, returned the brief, and refused to

consider any additional motions to accept the late filed brief. Nevertheless, the

                    2
                      The IJ partially relied on the movie The Hunt for Red
             October to overcome Mezini’s lack of corroborating evidence and
             deficiencies in testimony.

                                                 3
government filed a Motion to Reconsider Decision not to Accept Late Filed Appellate

Brief, along with said brief. That same day, in light of the government’s failure to submit

a timely brief, Mezini filed a letter with the BIA stating his intent to rely on the IJ’s

decision instead of submitting a brief.

       On September 22, 2003, the BIA sustained the government’s appeal, vacated the

IJ’s opinion, and ordered Mezini’s removal. Mezini did not appeal that order but instead

filed a timely Motion to Reopen and Reconsider, arguing that he was not given an

opportunity to present a full case or submit a brief to the BIA. He offered previously

unpresented evidence, including a statement from his father and a 1988 arrest declaration.

However, Mezini admitted in the accompanying affidavit that his father had been

available to testify, and the arrest declaration had been available at the time of the hearing

as well. Thus the BIA rejected Mezini’s Motion to Reopen and Reconsider on June 4,

2004, noting that he had an opportunity to present additional evidence but chose not to do

so, despite the government’s stated intent to appeal. Moreover, Mezini chose to rely upon

the IJ’s decision when he could have submitted a brief. This appeal followed.

                                              II.

       Because INS decisions involve foreign relations issues, the reasons for giving

deference to agency decisions apply with greater force in the immigration context. INS

v. Abudu, 485 U.S. 94, 110 (1988). This is even more applicable in the deportation

context because delays work in favor of the alien who “wishes merely to remain in the

                                               4
United States.” INS v. Doherty, 502 U.S. 314, 323 (1992). Thus, a decision by the BIA

to deny a motion to reopen or reconsider is reviewed for abuse of discretion, regardless

of the underlying basis for the request, and will only be disturbed if it is “‘arbitrary,

irrational, or contrary to law.’” Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005)

(quoting Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). Finally, the court reviews

de novo its own jurisdiction. Nugent v. Ashcroft, 367 F.3d 162, 165 (3d Cir. 2004).

                                              III.

       Under 8 C.F.R. § 1003.2(b), a motion to reconsider must “specify[] the errors of

fact or law in the prior Board decision and shall be supported by pertinent authority.” A

motion to reopen is granted when “the evidence sought to be offered is material and was

not available and could not have been discovered or presented at the former hearing.” 8

C.F.R. § 1003.2(c).

       Mezini’s brief suggests that the court reviews discretionary decisions by the BIA

de novo, but offers no authority to support this contention. Nor have we found any

authority to support this claim. Because of his reliance on the more lenient standard of

review, much of Mezini’s brief is devoted to arguing that the IJ’s decision was “fair and

correct as a matter of fact and law” rather than showing that the BIA abused its discretion.

Br. for Pet’r at 14.

       However, even if Mezini did argue that the BIA abused its discretion, this court

would not reverse the BIA’s ruling. In order for this court to disturb the BIA’s decision

                                               5
to deny the Motion to Reconsider, Mezini must show that the BIA made a decision that

was “arbitrary, irrational, or contrary to law.” Guo, 386 F.3d at 562. But as the BIA

noted, Mezini’s attorney completed his questioning and did not present additional

evidence or testimony. Mezini also chose to rely on the IJ’s decision even though he had

time and opportunity to submit a brief to rebut the issues raised in the government’s

notice of appeal.

       When the BIA denies a motion to reopen, it does so on one of three grounds: (1)

failure to establish a prima facie case; (2) failure to introduce previously available,

material evidence that would justify reopening; or (3) if discretionary relief 3 is sought, the

BIA determines that the movant would not be entitled to relief even if he met both

requirements. Abudu, 485 U.S. at 104-05. In this case, the BIA denied the motion

because Mezini failed to introduce previously unavailable, material evidence.

       In an affidavit in support of the Motion to Reopen, Mezini conceded that although

additional evidence 4 was available at the time of the hearing, he was unable to present it

“due to exceptional circumstances.” App. at 18. The BIA rejected this justification based

on Mezini’s own admission that the evidence was not new. Moreover, other than the

statement and the arrest declaration, neither Mezini’s nor his lawyer’s affidavits contained

                       3
                      Discretionary relief includes asylum, suspension of
             deportation, and adjustment of status. Abudu, 485 U.S. at 104-05.
                       4
                           An arrest declaration from 1988, and a statement from his
             father.

                                                  6
any new material evidence.

       Because the court reviews the BIA’s decision to deny a motion to reopen and

reconsider under the deferential abuse of discretion standard, and Mezini failed to show

that the BIA’s decision was “arbitrary, irrational, or contrary to law,” we will reject the

Petition for Review.

                                             IV.

       Mezini’s final argument challenges the merits of the BIA’s September 22, 2003,

decision directing his removal. Under 8 U.S.C. § 1252(b)(1), a petition for review of a

final order of removal must be filed within thirty days of the date of the order. This

deadline is mandatory and jurisdictional. See Pomper v. Thompson, 836 F.2d 131, 132-

33 (3d Cir. 1987) (per curiam). Moreover, it cannot be tolled by a motion to the BIA to

reopen and reconsider. See Stone v. INS, 514 U.S. 386, 395 (1995). Because Mezini

filed a Motion to Reopen and Reconsider instead of a Petition for Review to this court,

Mezini’s challenge to the removal order is untimely and we may not consider the merits

of the argument.

                                             V.

       For the above reasons, Mezini’s Petition for Review will be denied.

________________________


                                    UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT

                                      No. 17-2030

TORNELLO FONTAINE PIERCE EL BEY,

                    Plaintiff - Appellant,

             v.

JOSH STEIN; PAT MCCRORY; STATE OF NORTH CAROLINA; JAMES
ALLEN JOINES; SHERIFF WILLIAM T. SCHATZMAN; BJ BARNES, a/k/a
Eschol Edward Barnes, Jr.; NANCY VAUGHAN,

                    Defendants - Appellees.

Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Frank D. Whitney, Chief District Judge. (3:15-cv-00539-FDW-DCK)

Submitted: January 2, 2018                                   Decided: January 11, 2018

Before WILKINSON, KING, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Tornello Fontaine Pierce El Bey, Appellant Pro Se. Grady L. Balentine, Jr., Special
Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh
North Carolina; James R. Morgan, Jr., WOMBLE BOND DICKINSON (US) LLP,
Winston-Salem, North Carolina; Lonnie Glenn Albright, III, FORSYTH COUNTY
SHERIFF’S OFFICE, Greensboro, North Carolina; James Demarest Secor, III,
Greensboro, North Carolina; Polly D. Sizemore, CITY OF GREENSBORO LEGAL
DEPARTMENT, Greensboro, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

                                            2
PER CURIAM:

       Tornello Fontaine Pierce El Bey appeals the district court’s order dismissing his

amended complaint with prejudice. On appeal, we confine our review to the issues raised

in the Appellant’s brief. See 4th Cir. R. 34(b). Because Pierce El Bey’s informal brief

does not raise any specific challenge to the basis for the district court’s disposition of the

merits of his claims, Pierce El Bey has forfeited appellate review of the court’s order. *

See Williams v. Giant Food Inc., 370 F.3d 423, 430 n.4 (4th Cir. 2004). Accordingly, we

affirm the district court’s judgment. We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials before this court and

argument would not aid the decisional process.

                                                                                AFFIRMED

       *
        We conclude that the district court had subject-matter jurisdiction as Pierce El
Bey’s false arrest claim should have been raised pursuant to 42 U.S.C. § 1983 (2012).
We further reject Pierce El Bey’s conclusory assertion that the district judge was biased.
See Belue v. Leventhal, 640 F.3d 567, 573 (4th Cir. 2011).

                                              3


                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                            No. 97-6618

MICHAEL ANTHONY DUNCAN,

                                            Petitioner - Appellant,

         versus

BISHOP ROBINSON,

                                             Respondent - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Chief District Judge.
(CA-97-692-JFM)

Submitted:   August 14, 1997              Decided:   August 25, 1997

Before NIEMEYER, Circuit Judge, and BUTZNER and PHILLIPS, Senior
Circuit Judges.

Dismissed by unpublished per curiam opinion.

Michael Anthony Duncan, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Appellant appeals the district court's order denying relief on

his petition filed under 28 U.S.C.A. § 2254 (West 1994 & Supp.

1997). We have reviewed the record and the district court's opinion

and find no reversible error. Accordingly, we deny a certificate of

appealability and dismiss the appeal on the reasoning of the dis-
trict court. Duncan v. Robinson, No. CA-97-692-JFM (D. Md. Mar. 19,
1997). We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                         DISMISSED

                                2


996 F.2d 308
Harrisonv.Tenneco Oil Co.
NO. 91-3467
United States Court of Appeals,Fifth Circuit.
June 25, 1993

1
Appeal From:  E.D.La.

2
AFFIRMED.


3 So.3d 344 (2008)
Stephen WINTER, Appellant,
v.
Robert HAGER, Jon Miller, Bruce Carr, Emerald Shares, LLC, South Elmwood Realty Co., Inc., Safe Harbour World Health & Healing Foundation, China America Group, Inc., and David Knoll, Appellees.
No. 2D08-593.
District Court of Appeal of Florida, Second District.
December 3, 2008.
Susan W. Fox of Fox & Loquasto, P.A., Tampa, for Appellant.
Philip J. Crowley and Tracy Martinell Henry of Hinshaw & Culbertson LLP, Tampa, for Appellees Robert Hager, Jon Miller, and Bruce Carr.
No appearance for remaining appellees.
PER CURIAM.
Appellees Robert Hager, Jon Miller, and Bruce Carr filed suit against appellant Stephen Winter and his co-defendants, appellees Emerald Shares, LLC, South Elmwood Realty Co., Inc., Safe Harbour World Health & Healing Foundation, China America Group, Inc., and David Knoll, claiming breach of contract, unjust enrichment, and account stated. The suit was based on a loan to Emerald Shares, LLC that was allegedly guaranteed by Mr. Winter and his co-defendants. Attached to the complaint was the primary evidence: the promissory note of Emerald Shares for one million dollars and the guaranties of the defendants. Mr. Winter's alleged personal payment guaranty consisted of ten *345 pages of which only the last, the signature page, contained a fax notation showing that it was sent from Mr. Winter's home telephone number. After several pretrial motions and discovery, the plaintiffs moved for summary judgment, despite the fact that some motions had not yet been ruled upon. Mr. Winter opposed the motion for summary judgment, claiming, among other things, that what he signed was not a personal guaranty but an agreement to grant the plaintiffs a shared lien on a parcel of real estate. The trial court granted the summary judgment and entered judgment in favor of the plaintiffs. We reverse.
We are cognizant of the fact that immediately above Mr. Winter's signature on the last page of the alleged guaranty appears the following: "IN WITNESS WHEREOF, the undersigned has duly executed this Guaranty as a sealed instrument the day and year first above set forth[.]" Mr. Winter testified in deposition that he did not realize, not having the remaining pages before him when he signed this page and faxed it to the plaintiffs, that this was a personal guaranty and not the agreement for the shared lien position he had negotiated. Several other witnesses, whose sworn statements were presented to the trial court, corroborated Mr. Winter's understanding. This evidence shows that a disputed, material fact existed, including receipt of an email containing the entire ten-page guaranty. It was, thus, error for the trial court to grant summary judgment at this stage. See Brakefield v. CIT Group/Consumer Fin., Inc., 787 So.2d 115, 116 (Fla. 2d DCA 2001) (reversing summary judgment because movant had not "demonstrated conclusively and with certainty that [the nonmovant] could not raise any genuine issues of material fact").
Summary judgment reversed and cause remanded for further proceedings.
FULMER, CASANUEVA, and KELLY, JJ., Concur.


                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                              No. 02-7808

DAVID EMANUEL STRICKLAND,

                                             Petitioner - Appellant,

          versus

THEODIS BECK, Secretary of the North Carolina
Department of Correction,

                                              Respondent - Appellee.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CA-01-1132-1)

Submitted:   March 20, 2003                 Decided:   March 25, 2003

Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

David Emanuel Strickland, Appellant Pro Se. Clarence Joe DelForge,
III, OFFICE OF THE ATTORNEY GENERAL OF NORTH CAROLINA, Raleigh,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

      David Emanuel Strickland seeks to appeal the district court’s

order accepting the recommendation of the magistrate judge and

denying relief on his petition filed under 28 U.S.C. § 2254 (2000).

We   have   independently   reviewed    the   record   and   conclude   that

Strickland has not made a substantial showing of the denial of a

constitutional right.       See Miller-El v. Cockrell, 123 S.Ct. 1029

(U.S. Feb. 25, 2003).         Accordingly, we deny a certificate of

appealability, deny leave to proceed in forma pauperis, and dismiss

the appeal.    See 28 U.S.C. § 2253(c) (2000).     We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

                                                                 DISMISSED

                                    2