153 U.S. 228 (1894)
BURKE
v.
DULANEY.
No. 326.
Supreme Court of United States.
Argued and submitted March 28, 1894.
Decided April 23, 1894.
APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF IDAHO.
*230 Mr. W.B. Heyburn, for appellant, submitted on his brief.
Mr. Leigh Robinson for appellee.
*232 MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.
The general rule that a written contract cannot be contradicted or varied by evidence of an oral agreement between the parties before or at the time of such contract, has been often recognized and applied by this court, especially in cases in which it was sought to deprive bona fide holders of or parties to negotiable securities of the rights to which they were entitled according to the legal import of the terms of such instruments. Renner v. Bank of Columbia, 9 Wheat. 576, 587; Brown v. Wiley, 20 How. 442; Specht v. Howard, 16 Wall. 564; Forsythe v. Kimball, 91 U.S. 291; Brown v. Spofford, 95 U.S. 474; Martin v. Cole, 104 U.S. 30; Burnes v. Scott, 117 U.S. 582; Falk v. Moebs, 127 U.S. 597.
*233 Several of these cases were cited in the opinion of the court below, and have been cited here, as supporting the exclusion of the evidence which the appellant offered to introduce. 23 Pac. Rep. 915. It is supposed that Burnes v. Scott is particularly in point for the appellees. That was an action by the indorsee of a negotiable note against the maker. The defendant in that case offered to prove that the note was not intended by him or by the payee as a promissory note, but was given to and was received by the payee as a mere memorandum of the estimated value of the payee's interest in certain railroad bonds placed in the hands of the maker, and which were to be accounted for in the settlement of certain partnership affairs in which the maker and payee were interested; and that upon such settlement it would appear that the payee had received, prior to the giving of the note, more than his proper share of the partnership assets, and, therefore, was not entitled to claim anything in virtue of such memorandum. This court held the evidence inadmissible upon the ground that, by an alleged contemporaneous verbal agreement, it varied and contradicted the written contract of the parties. If that action had been brought by the original payee against the maker, and if the evidence above referred to had been excluded, a different question would have been presented. But, as we have seen, the issue in Burnes v. Scott was between the indorsee of a negotiable note and the maker. The rule is settled that a negotiable instrument, in the hands of an innocent holder for value, cannot be contradicted, to his prejudice, by evidence of an oral agreement or understanding between the original parties variant from the terms of their written contract.
The authorities cited do not determine the present case. The issue here is between the original parties to the note. And the evidence offered by the appellant, and excluded by the court, did not in any true sense contradict the terms of the writing in suit, nor vary their legal import, but tended to show that the written instrument was never, in fact, delivered as a present contract, unconditionally binding upon the obligor according to its terms from the time of such delivery, but was left in the hands of Dulaney, to become an absolute obligation *234 of the maker in the event of his electing, upon examination or investigation, to take the stipulated interest in the property in question. In other words, according to the evidence offered and excluded, the written instrument, upon which this suit is based, was not  except in a named contingency  to become a contract, or a promissory note which the payee could at any time rightfully transfer. Evidence of such an oral agreement would show that the contingency never happened, and would not be in contradiction of the writing. It would prove that there never was any concluded, binding contract entitling the party who claimed the benefit of it to enforce its stipulations. The exclusion of parol evidence of such an agreement could be justified only upon the ground that the mere possession of a written instrument, in form a promissory note, by the person named in it as payee, is conclusive of his right to hold it as the absolute obligation of the maker. While such possession is, undoubtedly, prima facie, indeed, should be deemed strong evidence that the instrument came to the hands of the payee as an obligation of the maker, enforcible according to its legal import, it is open to the latter to prove the circumstances under which possession was acquired, and to show that there never was any complete, final delivery of the writing as the promissory note of the maker, payable at all events and according to its terms. The rule that excludes parol evidence in contradiction of a written agreement presupposes the existence in fact of such agreement at the time suit is brought. But the rule has no application if the writing was not delivered as a present contract. The authorities supporting these views are numerous, and to some of them it will be well to refer.
In Ware v. Allen, 128 U.S. 590, 595, which was an action upon a written instrument, the defence was that it was understood between the parties at the time the instrument was signed that it should not be of any effect unless in certain named contingencies, which, it was shown, never occurred. Mr. Justice Miller, speaking for this court, said: "We are of opinion that this evidence shows that the contract upon which this suit is brought never went into effect; that the condition upon which it was to become operative never occurred, and that it is not a *235 question of contradicting or varying a written instrument by parol testimony, but that it is one of that class of cases, well recognized in the law, by which an instrument, whether delivered to a third person as an escrow or to the obligee in it, is made to depend, as to its going into operation, upon events to occur or to be ascertained thereafter"  citing Pym v. Campbell, 6 El. & Bl. 370, 373; Davis v. Jones, 17 C.B. 625; Wallis v. Littell, 11 C.B. (N.S.) 369; Wilson v. Powers, 131 Mass. 539; and Pawling v. United States, 4 Cranch, 219.
Pym v. Campbell, above cited, was an action upon an alleged agreement by the defendants to purchase from the plaintiff an interest in an invention of the latter. The defendants gave in evidence that, in the course of negotiations with the plaintiff, they got so far as to agree upon the price at which the invention should be purchased, if bought at all, and had appointed a meeting at which the plaintiff was to explain his invention to two engineers, when, if they approved, the machine would be purchased. At the appointed time the defendants and the two engineers attended, but the plaintiff did not come, and the engineers went away. Shortly after they were gone the plaintiff arrived. One of the engineers was found, and expressed a favorable opinion. The other could not then be found. It was then proposed that, as the parties were together and might find it troublesome to meet again, a writing should be then drawn up and signed, which, if the absent engineer approved the invention, should be the agreement; but if he did not approve it, should not be one. The absent engineer did not approve of the invention when he saw it, and the defendants contended that there was no bargain. The jury were directed that if it was agreed among the parties before the paper was signed that it should not operate as an agreement until the absent engineer approved of the invention, they should find for the defendants. A verdict was accordingly returned for the defendants. A verdict was accordingly returned for the defendants. Upon a rule nisi for a new trial on the ground of misdirection, the cause was heard before the Court of Queen's Bench. Erle, J., said that, while the production of a paper purporting to be an agreement of a party, with his signature attached, affords a strong presumption *236 that it is his written agreement, and if, in fact, he did sign the paper animo contrahendi, the terms contained in it were conclusive, and could not be varied by parol evidence, yet, if it were proved that in fact the paper was signed with the express intention that it should not be an agreement, the other party could not fix it as an agreement upon those so signing. "The distinction in point of law," he said, "is that evidence to vary the terms of an agreement in writing is not admissible, but evidence to show that there is not an agreement at all is admissible." p. 374. Crompton, J., said that he knew of no rule of law estopping parties from showing that a paper, purporting to be a signed agreement, was in fact signed on the terms that it should not be an agreement till money was paid or something else done. "The parties," he observed, "may not vary a written agreement, but they may show that they never came to an agreement at all, and that the signed paper was never intended to be the record of the terms of the agreement; for they never had agreeing minds. Evidence to show that does not vary an ageeement, and is admissible." pp. 374, 375. Lord Campbell, C.J.: "I agree. No addition to or variation from the terms of a written contract can be made by parol; but in this case the defence was that there never was any agreement entered into. Evidence to that effect was admissible; and the evidence given in this case was overwhelming. It was proved in the most satisfactory manner that before the paper was signed it was explained to the plaintiff that the defendants did not intend the paper to be an agreement till Abernethie had been consulted, and found to approve of the invention; and that the paper was signed before he was seen only because it was not convenient to the defendants to remain. The plaintiff assented to this, and received the writing on those terms. That being proved, there was no agreement." See also Lindley v. Lacey, 17 C.B. (N.S.) 578, 585; Clever v. Kirkman, 33 L.T. (N.S.) 672; Gudgen v. Besset, 6 El. & Bl. 986; 2 Taylor's Ev. (8th ed.) § 1135.
The case of Wilson v. Powers, above cited, was an action brought by the payee against the sureties in a promissory note. The defence was that the sureties had been discharged *237 from liability by a written agreement between the payee and the principal, which was delivered to the principal, whereby the time of payment was extended. To this the plaintiff replied, and sustained his position by proof, that the writing signed by him, and which was relied upon as discharging the sureties, was delivered as a proposition merely, and upon the agreement that it should become binding only upon the assent of the sureties. The Supreme Judicial Court of Massachusetts said: "The manual delivery of an instrument may always be proved to have been on a condition which has not been fulfilled, in order to avoid its effect. This is not to show any modification or alteration of the written agreement, but that it never became operative, and that its obligation never commenced." 131 Mass. 539, 540.
In Benton v. Martin, 52 N.Y. 570, 574, the principle is thus stated: "Instruments not under seal may be delivered to the one to whom upon their face they are made payable, or who by their terms is entitled to some interest or benefit under them, upon conditions, the observance of which is essential to their validity. And the annexing of such conditions to the delivery is not an oral contradiction of the written obligation, though negotiable, as between the parties to it, or others having notice. It needs a delivery to make the obligation operative at all, and the effect of the delivery and the extent of the operation of the instrument may be limited by the conditions with which delivery is made. And so, also, as between the original parties and others having notice, the want of consideration may be shown." To the same effect are Juilliard v. Chaffee, 92 N.Y. 529, 535, and Reynolds v. Robinson, 110 N.Y. 654, in the latter of which it was said that the rule was now well established that "parol evidence is admissible to show that a written paper which, in form, is a complete contract, of which there had been a manual tradition, was, nevertheless, not to become a binding contract until the performance of some condition precedent resting in parol."
The same doctrine was announced in McFarland v. Sikes, 54 Connecticut, 250, 251, 252. That was an action upon a *238 note, which, the defendant alleged, had been executed and delivered to the plaintiff upon an agreement that it should be cancelled under certain named circumstances, and in the event he demanded, by a named day, that it be returned to him. The trial court having ruled that the facts relied upon by the defendant did not constitute a defence, the Supreme Court of Errors of Connecticut, reversing the judgment, said: "The error was in applying to the case the familiar and well-established rule that parol evidence is inadmissible to contradict or vary a written contract. A written contract must be in force as a binding obligation to make it subject to this rule. Such a contract cannot become a binding obligation until it has been delivered. Its delivery may be absolute or conditional. If the latter, then it does not become a binding obligation until the condition upon which its delivery depends has been fulfilled. If the payee of a note has it in his possession, that fact would be prima facie evidence that it had been delivered; but it would be only prima facie evidence. The fact could be shown to be otherwise and by parol evidence. Such parol evidence does not contradict the note or seek to vary its terms. It merely goes to the point of its non-delivery. The note in its terms is precisely what both the maker and the payee intended it to be. No one desires to vary its terms or to contradict them."
For the reasons stated, and without considering the case in other aspects, we are of opinion that it was error to exclude the evidence offered by the defendant tending to show that the writing sued on was not delivered to or received by Dulaney as the promissory note of the defendant, binding upon him as a present obligation, enforcible according to its terms, but was delivered to become an obligation of that character when, but not before, the defendant examined and, by working them, tested the mining properties purchased by the plaintiff, and elected to take the stipulated interest in them. According to the evidence so offered and excluded the writing in question never became, as between Burke and Dulaney, the absolute obligation of the former, but was delivered and accepted only as a memorandum of what Burke *239 was to pay in the event of his electing to become interested in the property, and from the time he so elected, or could be deemed to have so elected, it was to take effect as his promissory note, payable according to its terms. His election, within a reasonable time, to take such interest, was made a condition precedent to his liability to pay the stipulated price. The minds of the parties never met upon any other basis, and a refusal to give effect to their oral agreement would make for them a contract which they did not choose to make for themselves.
The judgment is reversed and the cause is remanded, that a new trial may be ordered, and further proceedings had in conformity with this opinion.


68 Wn.2d 231 (1966)
412 P.2d 349
EUGENE A. PETERSEN, Appellant,
v.
BETTE TURNBULL et al., Respondents.[*]
No. 38189.
The Supreme Court of Washington, Department One.
March 17, 1966.
W.F. Ingram and Bell, Ingram & Smith, for appellant.
Ostrander & Van Eaton, for respondents.
HUNTER, J.
Eugene A. Petersen, plaintiff (appellant), brought this action to recover on a promissory note executed by Bette Turnbull, defendant (respondent). Plaintiff also seeks to foreclose a mortgage on real and personal property given to secure the promissory note. (William G. Himelhoch was joined as a party defendant by reason of a claimed mortgage interest in the realty covered by plaintiff's mortgage. A judgment of default was entered against this defendant, from which no appeal was taken.)
By the unchallenged finding of the trial court, the note and mortgage were issued to plaintiff "solely as the payment of the purchase price of the name, goodwill and chattels of a tavern business in Bremerton, Washington, known variously as Sonia's Tavern and Rendezvous Tavern." Betty Turnbull, the sole defendant (respondent) in this appeal, successfully defended the action on the basis that the note and mortgage were procured by false representations. Judgment was entered denying recovery on the note and foreclosure of the mortgage. (No issue is raised as to right of possession of the property.)
The facts giving rise to the issuance of the note and mortgage are as follows: In November of 1961, plaintiff paid one Billy K. Sparks $4,250 for his equity in the tavern. Plaintiff advanced this money on behalf of one Sonia Coffield, hereafter referred to as Coffield. He thereafter issued checks totaling $4,100 to Coffield for the purpose of making improvements in the tavern. Plaintiff was in turn given a chattel mortgage by Coffield in the amount of $9,000 in February of 1962. The tavern personal property was already *233 encumbered by a mortgage, which plaintiff later purchased, at or shortly after the time of the transaction with defendant, for a consideration of $6,000. After a few payments, Coffield fell into default under the terms of her mortgage, and plaintiff threatened to foreclose his interest. Coffield then placed an advertisement in a Seattle newspaper offering the tavern for sale. The advertisement, which contains some of the alleged misrepresentations, is as follows:
Modern, 65 kegs, good side money, $5,000 will handle. Owner, La. 4-5130
In answer to this advertisement, defendant contacted Coffield, who took her to plaintiff's residence in Everett. In plaintiff's presence, Coffield represented to defendant that: (1) The tavern sold 85 kegs, though she had only advertised a rate of 65 kegs; (2) she made $1,000 net; (3) the tavern sold 150 cases of bottled beer weekly.
Defendant eventually purchased the tavern, issuing to plaintiff her note and mortgage totaling $22,153.75. Plaintiff's attorney closed the transaction and plaintiff retained all of the proceeds.
The assignments of error are grouped around two basic contentions. Plaintiff's first contention is that the trial court erred when it found that plaintiff had made Coffield his agent for purposes of the sale, and was therefore bound by Coffield's representations to defendant. Plaintiff argues that the relationship between himself and Coffield was one of creditor-debtor, rather than principal-agent, and that defendant knew of this fact. Plaintiff further argues that the trial court's finding of agency must be a finding of a real or implied agency, as opposed to an apparent agency, since the latter depends upon acts and conduct of the alleged principal; and asserts there is nothing in the record to indicate that the plaintiff, by his action and conduct, induced the defendant to believe that Coffield was his partner or agent in the sale of the tavern. Plaintiff then argues that a real or implied agency cannot be shown because an essential *234 element is missing: control by the principal over the conduct of the agent.
We disagree with the plaintiff's contention. There is ample evidence in the record to sustain the following findings of the trial court:
XII
That the defendant, Turnbull, met with Colfield [sic] and Petersen to discuss the purchase of the tavern; that said meeting took place at Petersen's house; that Petersen took an active part in the negotiation of the purchase price and value of the tavern. That Colfield [sic] at said meeting in the presence of Petersen did make representations to Turnbull concerning the volume of business of the tavern which representations were false.
XV
That subsequent to the meeting at Petersen's home, Petersen called many times in person and by telephone to the defendant, Turnbull, urging and inducing her to buy the tavern.
XVI
That Petersen's investment in the tavern according to the evidence, did not exceed $14,350, which was the entire Colfield [sic] acquisition money and some operating money, yet the purchase price as evidenced by the note and mortgage for $22,153.75 was to Petersen, to the exclusion of Colfield [sic], and retained in full by him.
[1, 2] These findings establish that the plaintiff did, by his action and conduct, induce the defendant to believe that Coffield was his partner or agent in the sale of the tavern. His actions were inconsistent with the position of a mere creditor. By actively negotiating in the sales transaction, by having the note and mortgage executed directly to him to the exclusion of Coffield, and by accepting the entire purchase price as evidenced by the note and mortgage, plaintiff demonstrated that the sale was by him and for his benefit. The findings further establish that by retaining the entire purchase price, approximately $7,800 over his security interest, the plaintiff was in fact the principal and Coffield was his agent. It is not necessary that *235 plaintiff and Coffield understood their relationship to be that of principal and agent, if by their actions such a relationship existed in fact. Freeman v. Navarre, 47 Wn.2d 760, 289 P.2d 1015 (1955); Robbins v. Wilson Creek State Bank, 5 Wn.2d 584, 105 P.2d 1107 (1940).
[3] Within this context, plaintiff is bound by material misrepresentations made by Coffield within the scope of her authority. Restatement (Second), Agency §§ 257, 259 (1958).
In order for the alleged misrepresentations to qualify as an adequate defense of fraudulent inducement to enter into the transaction, they must meet the essential elements of fraud as set forth in numerous Washington cases. See, e.g., Webster v. L. Romano Eng'r Corp., 178 Wash. 118, 34 P.2d 428 (1934). Despite argument to the contrary, the record amply supports the trial court's findings that eight of these nine elements are present in this transaction. As to the remaining essential element, that of justifiable reliance, the trial court made no specific finding. Moreover, the plaintiff contends that the record cannot support such a finding.
Plaintiff's contention is based upon the following factors: Defendant had operated a tavern for two years (the record does not state when), and had visited the tavern here involved three times in the company of plaintiff. Also, one of the representations, concerning the volume of bottled beer sold, was so unreasonably large as to defy belief.
[4] The court's findings, which we have held are supported by the record, show that the defendant was induced by Coffield to rely upon her misrepresentations and that she did rely thereon. The business records of the tavern, which would have disclosed the truth or falsity of the representations, were within the exclusive control and possession of Coffield. Under these facts it is clear that the defendant was not required to demand the records for examination. She was therefore entitled to rely on Coffield's misrepresentations. This is in conformity with our holding in Jenness v. Moses Lake Dev. Co., 39 Wn.2d 151, 234 P.2d 865 (1951). wherein we stated:

*236 Unquestionably, appellants were naive and credulous, particularly in the light of their experience in the tavern business, but the rule is well settled in this jurisdiction that a wrongdoer cannot defend his wrongful actions by calling attention to his victim's gullibility.
Also, see, Shattuck, Contracts in Washington 1937-1957, 34 Wash. L. Rev. 467 at 525, 526.
The judgment is affirmed.
ROSELLINI, C.J., HILL, OTT, and HALE, JJ., concur.
NOTES
[*]  Reported in 412 P.2d 349.


101 U.S. 433 (____)
SOUTH CAROLINA
v.
GAILLARD.
Supreme Court of United States.

*436 Mr. Edward McCrady, jr., and Mr. Ch. Richardson Miles, for the plaintiff in error.
The court declined to hear counsel for the defendant in error.
MR. CHIEF JUSTICE WAITE, after stating the facts, delivered the opinion of the court.
No question is raised in this case as to whether or not the act of 1877 impaired the obligation of the contract of the State, which is contained in the bills of the bank, or the charter. By accepting the act and bringing suit under it, Trenholm conceded its validity. He contends, however, that when he tendered his bills in payment of his taxes, and so far complied with the provisions of that act as to allow the bills to be deposited with the clerk of the court to abide the result of any proceeding that might be instituted in regard to them, the State entered into a *437 new contract with him, by which it agreed to accept his bills in payment of his taxes if he established their validity in the way provided. It is the obligation of this alleged new contract which he claims has been impaired by the act of 1878.
We cannot find from the record that this question was presented in this precise form to the Supreme Court of the State, but it was undoubtedly involved in the case, and must have been decided directly or indirectly. No other question has been argued here.
As we look upon the act of 1877, it does no more than provide a way of determining whether bills offered in payment of taxes are binding on the State. It provides a remedy in case a county treasurer shall wrongfully refuse to accept a bill that is offered him. It is, in fact, what its title says it is, "An Act to prescribe the mode of proving bills of the bank of the State tendered for taxes, and the rules of evidence applicable thereto." It makes no offer of a new contract to a tax-payer or bill-holder, but simply says to him, if your bills are any time refused when offered in payment of taxes, you may proceed in a certain way to compel their acceptance if they are genuine and valid. There is no new contract, but a new way of enforcing an old one.
By the act of 1878 the remedy thus given has been taken away, with no saving in favor of tenders already made, except to give those who have made such tenders the right to pay their taxes under protest, without penalty, in sixty days, and sue to recover back what they have thus paid. They have still all their old remedies unless they have been taken away by the act of 1878, which is not the question here. All we have to decide is, whether that act has taken away from Trenholm the remedy he had under the one of 1877.
The new remedy formed no part of the charter contract of the State. Passed, as the act was, long after the charter was granted, and long after all the outstanding bills of the bank were issued, the State was restrained by no contract obligation from taking away or changing the remedy it then gave. All the cases in this court, where the question has arisen, agree in holding that "the States may change the remedy, provided no substantial right secured by the contract is impaired." It is *438 enough if the contract is "left with the same force and effect, including the substantial means of enforcement, which existed when it was made. The guaranty of the Constitution gives it protection to that extent. Walker v. Whitehead, 16 Wall. 314; Tennessee v. Sneed, 96 U.S. 69.
We agree with the Supreme Court of the State that the "proceeding" contemplated by the act of 1877 was not "instituted" when the repeal took place. The tender and deposit of the bills laid the foundation for the authorized proceeding, but did not institute it. This is clear from the language. The bills are to be deposited "to abide the decision of the court in any proceeding which may be instituted," thus implying that when the deposit was made proceedings had not been instituted. These proceedings may be "by mandamus or otherwise to compel the reception of the bills." The taxes are not paid by the tender. If the acceptance of the tender can be enforced, then the payment will be complete, but not before. This tender was made when a special remedy for its enforcement was allowed. Before Trenholm availed himself of that remedy it was taken away, and he was remitted to such as he had before this act, or such as were substituted on the repeal, if that rightfully took away those which existed when the charter contract was made. But whether this be so or not is unimportant, because it is well settled that if a statute giving a special remedy is repealed without a saving clause in favor of pending suits, all suits must stop where the repeal finds them. If final relief has not been granted before the repeal went into effect, it cannot be after. Railroad Company v. Grant, 98 U.S. 398, and cases there cited. The simple question in this case is, whether this repeal was valid and constitutional as against Trenholm and his rights. We think it was.
Judgment affirmed.


        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 16-1408V
                                      Filed: June 15, 2017
                                         UNPUBLISHED

****************************
KARINA C. KURTZ,                         *
                                         *
                    Petitioner,          *     Damages Decision Based on Proffer;
v.                                       *     Influenza (“Flu”); Shoulder Injury
                                         *     Related to Vaccine Administration
SECRETARY OF HEALTH                      *     (“SIRVA”);
AND HUMAN SERVICES,                      *     Special Processing Unit (“SPU”)
                                         *
                    Respondent.          *
                                         *
****************************
Elizabeth Muldowney, Rawls, McNelis and Mitchell, P.C., Richmond, VA, for petitioner.
Ilene Albala, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

       On October 27, 2016, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered on
September 3, 2014. Petition at 1. The case was assigned to the Special Processing
Unit of the Office of Special Masters.

       On March 23, 2017, a ruling on entitlement was issued, finding petitioner entitled
to compensation for a SIRVA. On June 14, 2017, respondent filed a proffer on award of
compensation (“Proffer”) indicating petitioner should be awarded $115,262.64. Proffer
at 1. In the Proffer, respondent represented that petitioner agrees with the proffered

1
  Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to
identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.
2
 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
award. Based on the record as a whole, the undersigned finds that petitioner is entitled
to an award as stated in the Proffer.

       Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner a lump sum payment of $115,262.64 in the form of a check payable to
petitioner, Karina C. Kurtz. This amount represents compensation for all damages
that would be available under § 300aa-15(a).

       The clerk of the court is directed to enter judgment in accordance with this
decision.3

IT IS SO ORDERED.

                                          s/Nora Beth Dorsey
                                          Nora Beth Dorsey
                                          Chief Special Master

3
  Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.

                                                      2
                 IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                           OFFICE OF SPECIAL MASTERS

                                                      )
    KARINA C. KURTZ,                                  )
                                                      )
                 Petitioner,                          )
                                                      )   No. 16-1408V
    v.                                                )   Chief Special Master Dorsey
                                                      )   ECF
    SECRETARY OF HEALTH AND HUMAN                     )
    SERVICES,                                         )
                                                      )
                 Respondent.                          )
                                                      )

                        PROFFER ON AWARD OF COMPENSATION

I.       Items of Compensation

         On March 23, 2017, Chief Special Master Dorsey issued a Ruling on Entitlement finding

that petitioner was entitled to vaccine compensation. Based upon the evidence of record,

respondent proffers that petitioner should be awarded $115,262.64, which represents all elements

of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). 1

Petitioner agrees.

II.      Form of the Award

         Respondent recommends that the compensation provided to petitioner should be made

through a lump sum payment of $115,262.64, in the form of a check payable to petitioner.

Petitioner agrees.

         Petitioner is a competent adult. Evidence of guardianship is not required in this case.

1
 Should petitioner die prior to the entry of judgment, the parties reserve the right to move the
Court for appropriate relief. In particular, respondent would oppose any award for future
medical expenses, future lost earnings, and future pain and suffering.
                                                  1
                       Respectfully submitted,

                       CHAD A. READLER
                       Acting Assistant Attorney General

                       C. SALVATORE D’ALESSIO
                       Acting Director
                       Torts Branch, Civil Division

                       CATHARINE E. REEVES
                       Deputy Director
                       Torts Branch, Civil Division

                       VORIS E. JOHNSON, JR.
                       Senior Trial Attorney
                       Torts Branch, Civil Division

                       s/ Ilene Albala
                       ILENE ALBALA
                       Trial Attorney
                       Torts Branch, Civil Division
                       U.S. Department of Justice
                       P.O. Box 146
                       Ben Franklin Station
                       Washington, D.C. 20044-0146
                       Direct dial: (202) 616-3655

Dated: June 14, 2017

                          2


                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT

                              No. 11-7528

BABI KITELONGA,

                  Petitioner - Appellant,

          v.

WARDEN,

                  Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.    Claude M. Hilton, Senior
District Judge. (1:10-cv-01357-CMH-JFA)

Submitted:   March 15, 2012                 Decided:   March 19, 2012

Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Babi Kitelonga, Appellant Pro Se.     Alice Theresa Armstrong,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Babi Kitelonga seeks to appeal the district court’s

order     dismissing       as    untimely       his    28   U.S.C.      § 2254     (2006)

petition.      The order is not appealable unless a circuit justice

or    judge   issues      a    certificate      of    appealability.        28     U.S.C.

§ 2253(c)(1)(A) (2006).            A certificate of appealability will not

issue     absent     “a       substantial    showing        of    the   denial     of   a

constitutional right.”            28 U.S.C. § 2253(c)(2) (2006).                 When the

district court denies relief on the merits, a prisoner satisfies

this    standard     by    demonstrating        that   reasonable       jurists     would

find that the district court’s assessment of the constitutional

claims is debatable or wrong.               Slack v. McDaniel, 529 U.S. 473,

484    (2000);     see    Miller-El    v.    Cockrell,      537    U.S.   322,     336-38

(2003).       When the district court denies relief on procedural

grounds, the prisoner must demonstrate both that the dispositive

procedural ruling is debatable, and that the petition states a

debatable claim of the denial of a constitutional right.                           Slack,

529 U.S. at 484-85.             We have independently reviewed the record

and conclude that Kitelonga has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal.        We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

                                            2
before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                   DISMISSED

                                    3


                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 28, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-11051
                         Summary Calendar

UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

WALTER WAYNE MCMILLEN,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC Nos. 3:02-CV-2078-G
                       3:01-CR-139-ALL-G
                      --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Walter Wayne McMillen (“McMillen”), federal prisoner #26819-

177, moves this court for a certificate of appealability (“COA”)

to appeal the district court’s denial of his 28 U.S.C. § 2255

motion to vacate, set aside, or correct his sentence.      Construing

his motion liberally, McMillen argues that the waiver in his plea

agreement did not bar his 28 U.S.C. § 2255 motion and that the

district court should have held an evidentiary hearing on his

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                             No. 03-11051
                                  -2-

claims that he would not have pleaded guilty but for his

counsel’s ineffectiveness and that his counsel was ineffective

for failing to file a notice of appeal.     McMillen’s further

argument that the district court erred by failing to consider the

combined affect of his ineffective assistance of counsel claims

is refuted by the record.    McMillen additionally states that all

of the claims he raised in the district court were meritorious,

but because he does not explain why his remaining claims were

meritorious, he has failed to adequately brief these claims and

they are deemed waived.     See Yohey v. Collins, 985 F.2d 222, 224-

25 (5th Cir. 1993).

     To obtain a COA, McMillen must make “a substantial showing

of the denial of a constitutional right.”     28 U.S.C.

§ 2253(c)(2).   As McMillen’s 28 U.S.C. § 2255 motion was denied

both on procedural grounds and on its merits, he “must

demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or

wrong” and “that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

     The claims that McMillen raises in this court are

ineffective assistance of counsel claims.     Although some

ineffective assistance of counsel claims may be waived, see

United States v. White, 307 F.3d 336, 343-44 (5th Cir. 2002), in

this case the waiver specifically excepted ineffective assistance
                            No. 03-11051
                                 -3-

of counsel claims.    Accordingly, McMillen’s waiver did not bar

these claims and McMillen has shown that the district court’s

procedural ruling was debatable or wrong.    See Slack, 529 U.S. at

484.

       The district court denied McMillen’s relevant ineffective

assistance of counsel claims without conducting an evidentiary

hearing because the affidavit of McMillen’s counsel contradicted

McMillen’s allegations, because it found that no evidence

supported McMillen’s claim that he had a viable public authority

defense, and because it found that any appeal McMillen could have

filed would have been meritless.    McMillen’s affidavit, however,

set forth facts that, if true, showed that his counsel failed to

file a notice of appeal after McMillen requested that he do so,

that his counsel lied to him during plea negotiations, that he

was working as a confidential informant at the time of his

arrest, and that he asked his counsel to investigate and present

a public authority defense but that his counsel refused to do so.

       A district court may deny a 28 U.S.C. § 2255 motion without

holding an evidentiary hearing “only if the motion, files, and

records of the case conclusively show that the prisoner is

entitled to no relief.”    United States v. Bartholomew, 974 F.2d

39, 41 (5th Cir. 1992).    We review a district court’s denial of a

28 U.S.C. § 2255 motion without holding an evidentiary hearing

for an abuse of discretion.    United States v. Cervantes, 132 F.3d

1106, 1110 (5th Cir. 1998).    “[C]ontested fact issues [in a 28
                            No. 03-11051
                                 -4-

U.S.C. § 2255 case] ordinarily may not be decided on affidavits

alone, unless the affidavits are supported by other evidence in

the record.”    United States v. Hughes, 635 F.2d 449, 451 (5th

Cir. Unit B 1981).

       The record does not conclusively show that McMillen is not

entitled to relief on his ineffective assistance of counsel

claims.    See Hughes, 635 F.2d at 451.    McMillen presented

facially valid claims that he would not have pleaded guilty but

for his counsel’s ineffectiveness and that his counsel was

ineffective for failing to file a notice of appeal.      See Hill v.

Lockhart, 474 U.S. 52, 59 (1985); Strickland v. Washington, 466

U.S. 668, 688-92 (1984); Roe v. Flores-Ortega, 528 U.S. 470, 477

(2000).    The district court’s finding that any direct appeal

filed by McMillen would have been without merit does not change

this analysis because the failure to file a notice of appeal upon

request is ineffective assistance of counsel without a showing

that the appeal would have merit.    See Flores-Ortega, 528 U.S. at

477.    Accordingly, we GRANT McMillen a COA on his claims that he

would not have pleaded guilty but for his counsel’s

ineffectiveness and that his counsel was ineffective for failing

to file a notice of appeal, VACATE the district court’s denial of

28 U.S.C. § 2255 relief, and REMAND to the district court for an

evidentiary hearing regarding these issues.      See Dickinson v.

Wainwright, 626 F.2d 1184, 1186 (5th Cir. 1980).     COA is DENIED

on any remaining issues.

       COA GRANTED IN PART, DENIED IN PART; VACATED AND REMANDED.


J-S62034-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                             Appellee

                       v.

HAKIM ABDUL WAKEEL

                             Appellant                      No. 3449 EDA 2013

                Appeal from the PCRA Order November 12, 2013
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0003579-2008

BEFORE: ALLEN, J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                      FILED APRIL 14, 2015

       Hakim     Abdul      Wakeel   appeals   from   the   order   entered   in   the

Northampton County Court of Common Pleas, dated November 12, 2013,

dismissing his first petition filed under the Post-Conviction Relief Act

(“PCRA”).”1 Wakeel seeks relief from the amended judgment of sentence of

an aggregate 315 to 846 months’ imprisonment imposed on February 23,

2011, following his jury conviction of four counts of robbery, two counts of

aggravated assault, one count of burglary, one count each of conspiracy to

commit aggravated assault, robbery, and burglary, four counts of recklessly

endangering another person, four counts of unlawful restraint, five counts of

____________________________________________

1
    42 Pa.C.S. §§ 9541-9546.
J-S62034-14

terroristic threats, and two counts of simple assault.2     On appeal, Wakeel

argues the PCRA court erred by refusing to allow him to dismiss his court-

appointed counsel, which prevented him from properly preserving and

arguing his Brady3 claim.         Based on the following, we are constrained to

reverse and remand for further proceedings.

       The facts underlying Wakeel’s convictions are well known to the

parties, and have been fully discussed in our decision in connection with

Wakeel’s direct appeal.        See Commonwealth v. Wakeel, 47 A.3d 1260

[1205 EDA 2011] (Pa. Super. 2012) (unpublished memorandum at 1-3).

Therefore, we need only state that Wakeel’s convictions arose out of a

robbery and burglary that he committed on July 26, 2007, together with two

co-conspirators.

       On May 18, 2009, a jury convicted Wakeel of 25 criminal counts, as

mentioned above. On June 12, 2009, the trial court originally sentenced him

to an aggregate term of 336 to 888 months’ imprisonment. Wakeel filed a

direct appeal.    On December 14, 2010, a panel of this Court reversed the

judgment of sentence and remanded the matter for resentencing.             See

Commonwealth v. Wakeel, 23 A.3d 579 [2179 EDA 2009] (Pa. Super.

____________________________________________

2
   18 Pa.C.S. §§ 3701(a)(1)(i), 2702(a)(4), 3502(a), 903(a)(1), 2705,
2902(a)(1), 2706(a)(1), and 2701(a)(3), respectively.
3
    Brady v. Maryland, 373 U.S. 83 (1963).

                                           -2-
J-S62034-14

2010) (unpublished memorandum).4               On February 23, 2011, Wakeel was

resentenced to an aggregate term of 315 to 846 months’ incarceration. He

filed a second direct appeal,5 and a panel of this Court affirmed the

judgment of sentence on March 30, 2012.             See Wakeel, supra, 47 A.3d

1260.

        On April 10, 2013, Wakeel filed a timely pro se PCRA petition. Counsel

was appointed to represent him. Nevertheless, Wakeel filed an amended pro

se PCRA petition on May 23, 2013.                Counsel filed a “Comprehensive

Description of Issues Raised Pursuant to Post-Conviction Relief Act, Title 42

Pa.C.S.A. §9541 et seq. and Pennsylvania Rules of Criminal Procedure, Rule

905” and a brief in support of Wakeel’s claims on July 3, 2013, and October

9, 2013, respectively. A PCRA evidentiary hearing was held on September

24, 2013.

        Thereafter, Wakeel filed a motion requesting counsel be dismissed and

that he be allowed to proceed pro se and file his own brief.6 PCRA counsel

____________________________________________

4
   The panel determined that because the charges were based on a single
criminal episode, Wakeel’s convictions for terroristic threats and simple
assault merged into his robbery convictions for sentencing purposes. See
Wakeel, supra, 23 A.3d 579.
5
  In that appeal, Wakeel raised legality of sentence, discretionary aspects of
sentencing, sufficiency, weight, and suppression claims.
6
  In that motion, Wakeel alleged PCRA counsel’s ineffectiveness with respect
to a Brady violation. See Motion to “Go Pro Se of Filing My P.C.R.A.
Evidentiary Hearing Brief,” 10/3/2013, at 1.

                                           -3-
J-S62034-14

also filed a petition to withdraw on October 23, 2013.      On November 8,

2013, a “motion to dismiss” counsel hearing was conducted. That same day,

the PCRA court granted counsel’s petition to withdraw, per Wakeel’s request,

but denied Wakeel’s request to file a pro se brief. Four days later, the court

entered an order and opinion, denying Wakeel’s PCRA petition. Wakeel filed

a timely pro se notice of appeal.7

       In his sole issue on appeal, Wakeel claims the PCRA court erred by

refusing to allow him to represent himself, which prevented him from

properly raising an allegedly valid Brady claim. Wakeel’s Brief at 12.

       Specifically, he states:

       [T]he crux of [his] collateral attack on his conviction was the
       nature of the lenient treatment [his co-defendant] received after
       he testified against [Wakeel]. When PCRA counsel failed to elicit
       any testimony from trial/appellate counsel about this crucial
       subject, and then when PCRA counsel failed to introduce even
       the sentencing notes from [his co-defendant’s] sentencing,
       [Wakeel] was understandably concerned that his rights were not
       being protected. This became all the more evident immediately
       after PCRA counsel filed an inadequate brief.

Id. Wakeel avers he contacted the PCRA court several times, “begging” to

be allowed to represent himself and that PCRA counsel’s brief be withdrawn.

Id. at 13.     He argues the court erred by refusing his request, and “the
____________________________________________

7
   On December 16, 2013, the PCRA court ordered Wakeel to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Wakeel filed a concise statement on January 6, 2014. The PCRA court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on January 9, 2014, relying
on its November 12, 2013, opinion. During this time, Wakeel also retained
private counsel, who filed the appellate brief.

                                           -4-
J-S62034-14

consequences were devastating” because the court found his Brady claim to

be waived for failure to raise the issue in the context of an ineffective

assistance of prior counsel claim. Id.8 However, before we may continue

with the analysis of this claim, we must address Wakeel’s request to proceed

pro se and the November 8, 2013, “motion to dismiss” counsel hearing.

       “Pursuant to the rules of criminal procedure and interpretive case law,

a criminal defendant has a right to representation of counsel for purposes of

litigating a first PCRA petition through the entire appellate process.”

Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super. 2009)

(citations omitted); see also Pa.R.Crim.P. 904(C). In Commonwealth v.

Grazier, 713 A.2d 81, 82 (Pa. 1998), the Pennsylvania Supreme Court held:

“When a waiver of the right to counsel is sought at the post-conviction and

appellate stages, an on-the-record determination should be made that the

waiver is a knowing, intelligent, and voluntary one.” 9 In Robinson, a panel

____________________________________________

8
  Moreover, Wakeel contends the court also erred in finding his underlying
Brady claim meritless. Id. at 14. He states the court’s finding that there
was no agreement in place between his co-defendant and the
Commonwealth in exchange for testimony was belied by the record and
contrary to precedent set forth in Commonwealth v. Strong, 761 A.2d
1167 (Pa. 2000). Id.
9
   We note we may address this issue sua sponte. See Commonwealth v.
Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011) (“[W]e acknowledge that
[the petitioner] did not argue that he was entitled to counsel, or in any way
challenge his waiver of that right, on appeal to this Court. That fact,
however, does not prevent us from sua sponte addressing this issue and
remanding his case.”)

                                           -5-
J-S62034-14

of this Court set forth the requirements necessary to ensure a petitioner

properly waives his right to counsel during a Grazier hearing:

           While the right to legal representation in the PCRA context
     is not constitutionally derived, the importance of that right
     cannot be diminished merely due to its rule-based derivation. In
     the post-conviction setting, the defendant normally is seeking
     redress for trial counsel’s errors and omissions. Given the
     current time constraints of 42 Pa.C.S. § 9545, a defendant’s first
     PCRA petition, where the rule-based right to counsel
     unconditionally attaches, may well be the defendant’s sole
     opportunity to seek redress for such errors and omissions.
     Without the input of an attorney, important rights and defenses
     may be forever lost.

            In Commonwealth v. Meehan, 427 Pa. Super. 261, 628
     A.2d 1151 (Pa. Super. 1993), which was specifically cited with
     approval in our Supreme Court’s pronouncement in Grazier, we
     addressed whether the defendant had validly waived his rule-
     based right to counsel for purposes of a PCRA hearing. The
     defendant therein complained that he did not actually waive his
     right to counsel because the waiver colloquy was inadequate in
     that it did not conform to the requirements of Pa.R.Crim.P. 121,
     formerly Pa.R.Crim.P. 318, waiver of counsel.

            That rule indicates that if a defendant seeks to waive his
     right to counsel, six areas of inquiry must be explored and
     explained to the defendant to “ensure that the defendant’s
     waiver of the right to counsel is knowing, voluntary, and
     intelligent[.]” Pa.R.Crim.P. 121(A)(2). In Meehan, we noted
     that some of the precepts regarding waiver of counsel in the trial
     setting were inapplicable in the PCRA area.           We did hold,
     however, that if a post-conviction waiver of counsel is requested
     by the defendant, the PCRA court must ascertain that “the
     defendant understands: (1) his right to be represented by
     counsel; (2) that if he waived this right, he will still be bound by
     all normal procedural rules; and (3) that many rights and
     potential claims may be permanently lost if not timely asserted.”
     Id. at 1157; see also Commonwealth v. Powell, 2001 PA
     Super 342, 787 A.2d 1017, 1019 (Pa. Super. 2001). While we
     concluded that the colloquy conducted therein was sufficient,
     that case clearly indicates four of the six areas of inquiry
     contained in Rule 121 apply in the PCRA context.

                                    -6-
J-S62034-14

       Pa.R.Crim.P. Rule 121(A)(2) provides:

       (2) To ensure that the defendant’s waiver of the right to
       counsel is knowing, voluntary, and intelligent, the judge or
       issuing authority, at a minimum, shall elicit the following
       information from the defendant:

          (a) that the defendant understands that he or she
          has the right to be represented by counsel, and the
          right to have free counsel appointed if the defendant
          is indigent;

          (b) that the defendant understands the nature of the
          charges against the defendant and the elements of
          each of those charges;

          (c) that the defendant is aware of the permissible
          range of sentences and/or fines for the offenses
          charged;

          (d) that the defendant understands that if he or she
          waives the right to counsel, the defendant will still be
          bound by all the normal rules of procedure and that
          counsel would be familiar with these rules;

          (e) that the defendant understands that there are
          possible defenses to these charges that counsel
          might be aware of, and if these defenses are not
          raised at trial, they may be lost permanently; and

          (f) that the defendant understands that, in addition
          to defenses, the defendant has many rights that, if
          not timely asserted, may be lost permanently; and
          that if errors occur and are not timely objected to, or
          otherwise timely raised by the defendant, these
          errors may be lost permanently.

           Subsections (b) and (c) are not relevant in the PCRA
     setting; however, the remainder of concepts examined in Rule
     121 clearly impact on whether a defendant understands the full
     import of his decision to act as his own counsel. Therefore, in
     accordance with Meehan and as required by [Commonwealth
     v.] Davido, [868 A.2d 431 (Pa. 2005) (finding that it is up to

                                   -7-
J-S62034-14

      the trial court to ensure that a proper colloquy is performed
      where a defendant has invoked his right to self-representation),]
      we conclude that if a PCRA defendant indicates a desire to
      represent himself, it is incumbent upon the PCRA court to elicit
      information from the defendant that he understands the items
      outlined in Pa.R.Crim.P. 121(A)(2)(a), (d), (e), and (f). A court
      must explain to a defendant that he has the right to counsel, in
      accordance with (a), that he is bound by the rules as outlined in
      (d), and that he may lose rights, as indicated in (f). Subsection
      (e) must be appropriately tailored so that a defendant is
      informed that “there are possible defenses to these charges that
      counsel might be aware of, and if these defenses are not raised
      [in a PCRA petition], they may be lost permanently.”

Robinson, 970 A.2d at 458-460.

      Turning to the present matter, a review of the November 8, 2013,

“motion to dismiss” counsel hearing reveals the PCRA court’s inquiry was not

properly in accordance with Grazier, and with respect to the items set forth

in Rule 121(A)(2), to ensure that Wakeel’s decision to proceed pro se was

made in knowing, voluntary, and intelligent manner. See N.T., 11/8/2013,

at 2-6.

      Furthermore, this omission is augmented by the fact that at the

hearing, while granting him permission to proceed pro se, the court denied

Wakeel’s request to file a pro se brief to raise the claim of PCRA counsel’s

ineffectiveness regarding the Brady argument. Moreover, the court waited

only four days after granting Wakeel pro se status to then deny his request

for PCRA relief.   It is well-settled that “a PCRA petitioner cannot assert

claims of PCRA counsel ineffectiveness for the first time on appeal.”

                                    -8-
J-S62034-14

Commonwealth v. Henkel, 90                     A.3d 16, 28   (Pa. Super. 2014).10

Therefore, the only proper way for Wakeel to preserve his claim of PCRA

counsel’s ineffectiveness was by filing a PCRA pleading.            In the court’s

November 8, 2013, order, it prevented Wakeel from doing so. Accordingly,

the court erred in precluding Wakeel from filing an amended PCRA petition. 11

       Consequently, we are constrained to reverse the PCRA court’s

November 12, 2013, order denying Wakeel’s PCRA petition.              We remand

with instructions to the PCRA court to conduct a proper Grazier hearing, and

to allow Wakeel permission to file an amended PCRA petition, either pro se

or with the assistance of privately retained counsel, so that Wakeel may

properly preserve his claim of appointed PCRA counsel’s ineffectiveness. If

Wakeel chooses to retain his private PCRA counsel, we also direct counsel to

enter an appearance with the PCRA court. Because the remand may change

the content and character of this appeal substantially, we relinquish

jurisdiction.

       Order reversed. Case remanded. Jurisdiction relinquished.

____________________________________________

10
   See also Commonwealth v. Rigg, 84 A.3d 1080, 1085 (Pa. Super.
2014) (finding a petitioner cannot raise ineffective assistance of PCRA
counsel for first time in Pa.R.A.P. 1925(b) statement).
11
   While Wakeel requested that he be able to file his own brief, we can infer,
based on his pro se status, that he actually meant an amended petition.

                                           -9-
J-S62034-14

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/14/2015

                          - 10 -


         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D19-1506
                 _____________________________

PAUL R. WHITE,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________

On appeal from the Circuit Court for Alachua County.
Mark W. Moseley, Judge.

                       October 21, 2019

PER CURIAM.

    AFFIRMED.

RAY, C.J., and MAKAR and KELSEY, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________
Paul R. White, pro se, Appellant.

Ashley Moody, Attorney General, and Sharon S. Traxler, Assistant
Attorney General, Tallahassee, for Appellee.

                                2


217 Wis.2d 715 (1998)
579 N.W.2d 789
MASON SHOE MANUFACTURING COMPANY, Plaintiff-Respondent,[]
v.
FIRSTAR BANK EAU CLAIRE, NA, as Trustee of the Victor T. Mason Revocable Trust Dated October 1, 1993, and Bernice Mason, Defendants-Co-Appellants,
Richard MASON and Thomas Mason, Defendants-Appellants.
Bernice M. MASON, Plaintiff,
Thomas J. MASON and Richard P. Mason, Plaintiffs-Appellants,
v.
John A. LUBS, Jane M. Lubs, William M. Scobie, Rosemary M. Scobie, Robert J. Allen, Paul B. Mason, Jr., David E. Frasch and Mason Shoe Manufacturing Company, Defendants-Respondents.
FIRSTAR BANK EAU CLAIRE, NA, Estate of Victor T. Mason and Mason Revocable Grantor Trust, Plaintiffs-Appellants,
v.
MASON SHOE MANUFACTURING COMPANY, John A. Lubs, Jane M. Lubs, William M. Scobie, Rosemary M. Scobie, Paul B. Mason, Jr. and David E. Frasch, Defendants-Respondents.
No. 97-2053.
Court of Appeals of Wisconsin.
Submitted on briefs December 22, 1997.
Decided March 13, 1998.
*717 On behalf of the defendants-appellants, the cause was submitted on the briefs of Edward S. Marion and Richard W. Pitzner of Murphy & Desmond, S.C. of Madison.
On behalf of the defendant-co-appellant Firstar Bank, the cause was submitted on the briefs of C. Vernon Howard, Jr. and James F. Gebhart of Stroud, Stroud, Willink, Thompson & Howard of Madison.
On behalf of the defendants-respondents, the cause was submitted on the briefs of Alan I. Silver and Karen D. Olson of Doherty, Rumble & Butler, P.A. of Minneapolis; Eric J. Magnuson, Richard J. Nygaard and William P. Wassweiler of Rider, Bennett, Egan & Arundel, LLP of Minneapolis; and Steven R. Cray of Wiley, Wahl, Colbert, Norseng, Cray & Herrell, S.C. of Chippewa Falls.
Before Cane, P.J., Myse and Hoover, JJ.
HOOVER, J.
Bernice, Thomas and Richard Mason, and Firstar Bank Eau Claire, N.A., personal representative of Victor Mason's estate, appeal a summary judgment dismissing their claims against the Mason Shoe Manufacturing Company and John Lubs, Jane Lubs, William Scobie, Rosemary Scobie, Robert Allen, Paul Mason, Jr., and David Frasch, the company's officers and directors. The appellants contend that the issuance of 4,000 shares of Class A common stock was not authorized under § 180.0601(1), STATS. They also assert that the trial court erred by granting summary judgment on the grounds that the 4,000 shares issued by the officers and directors to John Lubs *718 were subject to preemptive rights, the issuance of the shares breached a fiduciary duty owed by the company officers and directors, and breached the fiduciary duty owed to the trust beneficiaries by the J. Owen Mason Trusts trustees. We conclude that the contested shares were not authorized under § 180.0601(1). Therefore, their issuance is null and void. However, because a question of fact remains whether the trustees breached their fiduciary duty, and the determination whether the trustees are entitled to costs depends on resolution of that fact, we must remand for a determination of that sole issue. Accordingly, we reverse the summary judgment and remand for further proceedings.
The company was founded in 1904 as a closely held family corporation. Victor Mason ran the company for years as its president, remaining a director and officer after retirement and until his death in October 1993. At the time the contested stock was issued, the company had authorized and issued two classes of stock: Class A voting stock and Class B non-voting stock. Victor and his family owned the bulk of these shares, while his sister, Rosemary Mason Scobie, and her family also owned a substantial number of shares. Several trusts also held shares for certain of Victor's and Rosemary's children.[1] After distribution of the trusts, Victor Mason and his sons, Richard and Thomas, would control a 54.9% majority in the company. The Scobie family would own 38.43% of the voting stock.
Victor's son-in-law, John Lubs, having begun as a warehouse custodian, became president of the company in 1991, a position he held two years later when the contested shares were issued. Victor's son, Richard, *719 worked at the company for several years, beginning in 1986. During that time, he clashed with Lubs and William Scobie, chairman of the board of directors. After attempts to work out their differences failed, Richard left the company in 1989. He vowed he would get even with Lubs.
In March of 1993, Victor and his wife, Bernice, prepared new wills. When Lubs learned this, he spoke with Scobie. Lubs was concerned that the new wills might have given Richard or Bernice the power to vote Victor's shares and thereby control the company.[2] Lubs feared he and Scobie would be replaced if either Richard or Bernice could vote the shares. After unsuccessfully attempting to learn what Victor had provided in his will, Lubs and Scobie discussed issuing a third block of stock. Lubs did not suggest that the stock be issued to him; however, in September 1993, Scobie initiated the sale to Lubs. Scobie notified the company's directors that the board would hold a special meeting and that the agenda was the sale of 4,000 shares of Class A stock to Lubs. Apart from three directors in attendance who held Class A shares, the other twenty Class A shareholders were not notified of the directors' meeting. Victor did not attend or participate in the meeting.
The board adopted a resolution authorizing the issuance of 4,000 Class A shares to Lubs. The company and Lubs executed a stock purchase agreement, and Lubs executed a promissory note in exchange for the *720 stock. The agreement provided that Lubs "shall not sell, give, assign or otherwise transfer" his shares without offering the company the right to purchase the shares. It further stated that should Lubs leave the company for any reason, or upon death, the company had the right to redeem the shares. In addition, the agreement prohibited Lubs from pledging, mortgaging or encumbering all or part of the stock.
This case involves three consolidated actions arising from the issuance to Lubs of the 4,000 shares of stock. First, the company sought a declaratory judgment that the issuance of the shares did not violate the preemptive rights of Victor, his wife or sons, and did not constitute a breach of its directors' fiduciary duty to the shareholders. Victor's wife, Bernice, and her sons, Richard and Thomas, filed a suit seeking to cancel the shares issued to Lubs or to recover damages. Finally, Firstar, acting as personal representative of Victor's estate, asserted that the issuance of the shares violated Victor's preemptive rights as a shareholder of the company and constituted a breach of the company directors' fiduciary duty to him. Firstar and the Masons moved for summary judgment on the preemptive rights issue and on the grounds that the shares were not authorized to be issued under § 180.0601(1), STATS. The company moved for summary judgment on both the preemptive right and fiduciary issues.[3] The *721 trial court granted the company's motion and denied Firstar's and the Masons' motion.

AUTHORIZATION OF SHARES
Firstar contends that the Class A shares issued to Lubs were void in that the limitations placed upon those shares are not prescribed in the company's articles of incorporation. The company's articles of incorporation authorize it to issue only Class A and Class B shares of stock. The articles provide that "Class B common stock shall be identical with Class A common stock in all respects except that Class B common stock shall not have any voting rights." The limitations imposed on the shares issued to Lubs were typed as a legend on the reverse side of the stock certificate issued to him. The company admits that "the restrictions placed on the sale of Class A shares to Lubs were far more onerous than those applicable to the issuance of all other outstanding Class A shares." These restrictions were that Lubs could not give his shares to anyone or pledge them as collateral. His ownership of the shares was conditioned upon his employment with the company; he was subject to losing his shares if he died or ceased working with the company. According to Scobie, the latter limitation was imposed so that if Lubs ever acted contrary to the wishes of management, he could be terminated and his stock would go back to the company. Further, if Lubs left the company's employment and the company considered exercising its right to redeem the shares, Lubs agreed, according to language appearing on his stock, "that he or his estate shall vote, if necessary, in accordance with the directions *722 of the chairman of the Board of Directors of the Company. . . ."
The company contends that the shares issued to Lubs have the same rights and preferences as all other Class A shares. It argues that Lubs has the same voting rights, duty to honor the company's right of first refusal, and the same rights to dividends or distributions as any other Class A shareholder. It further asserts that the existing differences are that Lubs can only own his stock while employed by the company and that he may not transfer his stock to anyone without prior consent. These, it contends, are common, permissible transfer restrictions. As limitations placed upon the stockholder by individual agreement, the company argues that these restrictions do not alter the underlying rights and preferences of the stock itself. The trial court did not address the issue except to say that the limitations were permissible transfer restrictions under § 180.0627(4), STATS., the section outlining restrictions on transfer of shares and other securities, and that the limitations did not create a separate class of stock.
Whether the conditions unique to Lubs's stock rendered the issuance void presents a question of statutory interpretation we review de novo. State v. Michels, 141 Wis. 2d 81, 87, 414 N.W.2d 311, 313 (Ct. App. 1987). Section 180.0601(1), STATS., provides that limitations must be set forth in the articles of incorporation:
The articles of incorporation shall prescribe the classes of shares and the number of shares of each class that the corporation is authorized to issue, except that an investment company may prescribe that each class has an indefinite number of authorized shares. If more than one class of shares is *723 authorized, the articles of incorporation shall prescribe a distinguishing designation for each class. Before the issuance of shares of a class, the corporation shall describe in its articles of incorporation the preferences, limitations and relative rights of that class. All shares of a class shall have preferences, limitations and relative rights identical with those of other shares of the same class unless the class is divided into series. (Emphasis added.)
Two statutes, however, discuss limited permissible restrictions on transfers of shares that it appears do not necessarily have to be described in the articles of incorporation. Section 180.0621(5), STATS., permits transfer restrictions when shares are issued for a contract for future services or benefits or a promissory note. Section 180.0627, STATS., discusses purposes for restricting transfer of shares and other securities as well as various forms of agreements necessary to establish such restrictions. Section 180.0627(2)(a) provides that, subject to a limitation in (2)(b), transfer restrictions may be imposed by the articles of incorporation, bylaws, an agreement among shareholders and holders of other securities, or an agreement between shareholders and holders of other securities and the corporation for any reasonable purpose.
The certificate issued to Lubs sets forth the condition that if he left the company's employment and the company took a vote to decide whether to exercise its purchase option, Lubs would vote, if necessary, in accordance with the directions of the chairman of the board. If this is a transfer restriction, it need not appear in the articles of incorporation in order to be valid. The company, however, offers no authority or argument demonstrating that this provision is in the nature of a restriction on his right to transfer his stock. *724 For that matter, it fails to show why the precise limitations that prohibit Lubs from transferring or encumbering the stock and only owning the stock while employed by the company are reasonable or are common, valid transfer restrictions. Particularly, we fail to see how the restriction that Lubs only own the stock while employed by the company, supported by Scobie's admission that Lubs could be terminated if he acted in contravention to the wishes of management, is the type of restriction on transfer contemplated by statute.[4]*725 Rather, the more direct effect of this restriction is upon Lubs's ownership of the stock, not his ability to transfer it. Thus, this restriction goes beyond those limited permissible transfer restrictions in §§ 180.0621(5) and 180.0627, STATS. While we accept the company's argument that restrictions may attach to the shareholder rather than the share, we conclude this exists only within limited, statutorily permitted areas of individual negotiation, such as permissible transfer restrictions and buy/sell agreements.
The provision in question potentially restricts Lubs's freedom to vote in a manner inconsistent with the board of directors. As such, it is a limitation both on his voting rights and the full enjoyment of ownership. More importantly, it is a limitation on voting rights unique to the shares issued to him; no other prior issuance of Class A stock so restricts shareholders' voting rights. Further, this limitation is not set forth in the articles of incorporation. While the articles provide the company with the right of first refusal, they do not specify that the stockholder must agree to vote, if necessary, in accordance with the directions of the chairman of the board when deciding whether to exercise the company's purchase option. Yet, a limitation on one's relative rights must be set forth in the articles of incorporation and made equally applicable to all Class A stock. Section 180.0601(1), STATS.
[1]
The preferences, limitations and relative rights of Lubs's shares are not identical to other Class A shares as required by § 180.0601, STATS. Further, because the restrictions that Lubs may only own the stock while employed by the company and may have to vote as *726 directed by the board chairman are limitations not described in the articles of incorporation, the shares are unauthorized for issuance under § 180.0601 and therefore null and void. See 11 WILLIAM MEADE FLET CHER ET AL., FLETCHER CYCLOPEDIA OF THE LAW OF PRIVATE CORPORATIONS § 5123 (perm. ed. rev. vol. 1995).

FIDUCIARY DUTY OF THE J. OWEN MASON TRUSTS TRUSTEES
We address this fiduciary issue because it is relevant to the next issue we discuss, whether the trustees are entitled to costs incurred in performance of their roles. Appellants argue that William Scobie, Robert Allen, and Paul Mason, Jr., breached their fiduciary duty as trustees of the J. Owen Mason Trusts. The J. Owen Trusts held 3,111 Class A shares in trust for Richard and Thomas Mason. The trustees therefore held a fiduciary duty to Richard and Thomas in addition to the fiduciary duty owed to them as directors and officers of the company. The company contends that the trustees' duty is to act in the interest of the beneficiaries, but not necessarily to act as the beneficiaries may desire. It contends it was in the best interests of the company to retain Lubs, and that by acting in concert with this interest, the trustees did not breach their fiduciary duty to the beneficiaries.
"The responsibilities of a trustee require an administration of the trust with the sole object of reserving the trust estate and guarding the interests of the beneficiaries." In re Revocable Trust of McCoy, 142 Wis. 2d 750, 755-56, 419 N.W.2d 301, 304 (Ct. App. 1987) (quoting In re Estate v. Allen, 218 Wis. 349, 353, 259 N.W. 848, 849 (1935)). Where a trustee demonstrates an open, avowed hostility toward a beneficiary, *727 the trustee should be removed. See Laughlin v. Griswold, 179 Wis. 56, 59, 190 N.W. 899, 900 (1922).
[2]
We conclude that factual ambiguities remain whether the trustees purposefully acted against the beneficiaries' interests by diluting the value of their stock. While there is a reasonable inference that the trustees breached their fiduciary duty, we are unwilling to say as a matter of law they did so. Whether they acted purposefully out of self-interest and against their beneficiaries' interest is an issue of fact. Further, whether retaining Lubs and other management was in the best interests of the company and the beneficiaries presents factual issues. We finally conclude that whether the trustees acted only out of hostility toward Richard and Thomas, and not otherwise in the best interests of the beneficiaries, is also a factual issue.

TRUSTEES' COSTS
The trial court removed William Scobie and Paul Mason, Jr., as trustees "because of a patent conflict of interest by reason of their being adverse in interest to Richard and Thomas Mason as a result of the legal action over the issuance of the stock to John Lubs initiated by the two trust beneficiaries, Richard and Thomas Mason."[5] Thus, the court concluded that the lawsuit formed the basis of a conflict of interest. The court awarded the removed trustees $10,299.90 as partial compensation for legal fees incurred.
Appellants argue that the trustees are not entitled to compensation because they had a conflict of interest with the beneficiaries and the trustees acted in bad faith. They point to In re Estate of Martin, 39 Wis. 2d *728 437, 159 N.W.2d 660 (1968), which states when a trustee is not entitled to compensation:
[A] sum is allotted for an execution of the trust with the highest degree of good faith and with ordinary skill and care. It follows that if the administration of any particular trustees falls below this level, his compensation should be reduced or even forfeited entirely.
Id. at 444, 159 N.W.2d at 663 (quoting BOGERT, TRUSTS & TRUSTEES 2d § 980 at 404). The trial court, relying on In re Estate of Gehl, 5 Wis. 2d 91, 92 N.W.2d 372 (1958), held that the trustees were entitled to compensation. It concluded that under Gehl, a trustee could not be removed for a conflict of interest where the testator creates that conflict, but only for mismanagement. The court concluded that because the grantor of the trusts, J. Owen Mason, intended there to be a conflict of interest and the trustees were not removed for mismanagement, the trustees were entitled to costs of $10,299.90. Appellants contend that Gehl is distinguishable because the trustees purposefully acted against the beneficiaries' interests. They further dispute that J. Owen Mason intended there to be a conflict of interest.
As previously discussed, a genuine issue of material fact remains whether the trustees breached their fiduciary duty by purposefully acting against their beneficiaries' interests by diluting the value of their stock. Even though the trial court determined that the trustees had a conflict of interest, the court based this finding on the institution of the legal action between the trustees and the beneficiaries, not mismanagement of the trust. The presence of this conflict of interest is not dispositive that the trustees acted in bad faith or *729 against the interests of the beneficiaries. Whether the trustees breached their fiduciary duty and whether J. Owen Mason intended there to be a conflict of interest between the trustees and beneficiaries are jury issues. Thus, while we decide the case by our holding that the issuance of the shares was null and void, we must remand for a determination as to the remaining issue of fact, whether the trustees breached their fiduciary duty and are thus not entitled to costs as trustees.
By the Court.Judgment reversed and cause remanded with directions.
NOTES
[]  Petition to review granted.
[1]  In addition, 328 shares were held by a non-family group.
[2]  This concern, we note, is inconsistent with their contention that Victor agreed to the Lubs stock issuance in order to assure that Richard could not gain controlling interest in the company. In fact, Victor's new will created a trust in which Firstar would vote the shares after consulting with Richard, or Firstar could grant its proxy to Richard.
[3]  Our holding on the narrowest issue, whether the shares were authorized under § 180.0601(1), STATS., is dispositive and therefore we do not reach the questions whether the stock issue violated Victor's and the Masons' preemptive rights and whether the corporate officers breached their fiduciary duty. If we decide a case on one issue, we need not address others. Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559, 562 (Ct. App. 1983). An appellate court should decide cases on the narrowest possible grounds. State v. Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44, 46 (1997).
[4]  Section 180.0627(4), STATS., discusses permissible transfer restrictions. It reads:

(4) The transfer restrictions permitted under this section include, but are not limited to, transfer restrictions that do any of the following.
(a) Obligate the shareholder or holder of other securities first to offer the corporation or other persons, whether separately, consecutively or simultaneously, an opportunity to acquire the restricted shares or other securities.
(b) Obligate the corporation or other persons, whether separately, consecutively or simultaneously, to acquire the restricted shares or other securities.
(c) Require the corporation, the holders of any class of its shares or other securities or another person to approve the transfer of the restricted shares or other securities, if the requirement is not manifestly unreasonable.
(d) Prohibit the transfer of the restricted shares or other securities to designated persons or classes of persons, if the prohibition is not manifestly unreasonable.
While we recognize that permissible transfer restrictions are not limited to those expressly discussed in § 180.0627(4), STATS., the company fails to demonstrate how the nature of the restrictions that Lubs only own the stock while employed by the company and that he vote in accordance with the desires of the chairman of the board when deciding to exercise its purchase option are similar in nature to the permissible transfer restrictions delineated above. We conclude that the character of the restrictions upon Lubs's shares goes beyond that of permissible transfer restrictions.
[5]  Another trustee, Robert Allen, resigned in January 1996.


641 F.2d 45
24 Wage & Hour Cas. (BN 1241, 90 Lab.Cas.  P 33,983
MACCABEES MUTUAL LIFE INSURANCE COMPANY, Plaintiff, Appellant,v.Juan F. PEREZ-ROSADO & Miguel A. Rosario, Defendants, Appellees.
No. 79-1668.
United States Court of Appeals,First Circuit.
Submitted June 6, 1980.Decided Feb. 18, 1981.

1
Guillermo Silva Janer and Gonzalez, Casse & Silva, Hato Rey, P. R., on brief, for plaintiff, appellant.

2
Hector A. Colon Cruz, Sol. Gen. and Reiner Colon De Rodriguez, Asst. Sol. Gen., San Juan, P. R., on brief, for defendants, appellees.

3
Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and CAFFREY, District Judge.*

4
CAFFREY, District Judge.

5
The plaintiff life insurance company brought this action seeking a declaratory judgment that the defendant insurance salesmen were not entitled to vacation leave and Christmas bonus payments under two laws of the Commonwealth of Puerto Rico.1  The plaintiff relied on the allegedly exempt status of the defendants as "outside salesmen" and the preemptive effect of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq.  The district court denied the plaintiff's motion for summary judgment and dismissed the action.  The present appeal followed.

6
The plaintiff's major contention is that any beneficial wage and hour protection for defendant salesmen lies within the scope of the FLSA and not within the power of the Commonwealth of Puerto Rico.  The plaintiff concludes that since the federal statute exempts the "outside salesmen" from its protection, the Commonwealth of Puerto Rico must also follow the single federal regulatory scheme and refrain from extending the benefits of its legislation to the defendants.  Such preemption analysis is wide of its mark.  This is not even a close preemption case and we affirm the district court's denial of plaintiff's motion for summary judgment and its dismissal of the complaint.

7
Christmas bonuses and vacation pay are the sums at stake for the two defendants in this action.2  The defendants rely on the two state statutes cited above for their entitlement to such employee benefits.  The FLSA contains nothing to prohibit such public welfare state legislation, even assuming that the defendants are "outside salesmen", and the provision of these benefits is not contrary to the policy of the FLSA, which is to protect employees from excessive hours and substandard wages.

8
In a preemption case, assuming that there is no constitutional challenge, one must first determine whether the federal statute prohibits any and all state regulation of that particular activity.  Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977); City of Boston v. Harris, 461 F.Supp. 1201 (D.Mass.1978).  The FLSA does not expressly prohibit state legislation in the area of wages and working conditions.  "To the contrary, it (FLSA) specifically contemplates state regulation" of labor conditions.  Doctors Hospital, Inc. v. Silva Recio, 558 F.2d 619 (1st Cir. 1977).  See 29 U.S.C. § 218(a).

9
Nor does the federal statute implicitly prohibit state regulation by occupying the whole field and leaving no room for supplementary state provisions.  Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947).  Courts have upheld the state laws at issue here, Keystone Collection Service Inc. v. Recio, 389 F.Supp. 164 (D.Puerto Rico 1975), as laws "with a social redeeming value and purpose" and authorized under the traditional "police power" belonging to states.  One cannot claim that the FLSA supersedes all such state activity unless one can demonstrate that such was the "clear and manifest purpose of Congress."  Rice v. Santa Fe Elevator Corp., supra.  The plaintiff has failed to make such a demonstration here and prior FLSA cases point to the same result.  Doctors Hospital Inc. v. Silva Recio, supra.

10
The second level of preemption analysis is to determine whether any conflict between state and federal laws is severe enough to mandate a federal override of the state provision.  Jones v. Rath Packing Co., supra.  The conflict which plaintiff identifies is that the FLSA exempts "outside salesmen" from protective wage benefits while the two Puerto Rican statutes do not.  The basic error in the plaintiff's analysis is that it fails to realize that the FLSA did not exempt "outside salesmen" from all kinds of wage and hour protection; it merely exempted such employees from the minimal federal protection offered in the Act.  There is no reason to doubt that the states themselves retain traditional police powers which can be directed for the benefit of federally exempt employees.  See Kargman v. Sullivan, 558 F.2d 612 (1st Cir. 1977).

11
Affirmed.

*
 Of the District of Massachusetts, sitting by designation

1
 The Commonwealth Minimum Wage Board's Mandatory Decree 60, promulgated under Law 96 of June 26, 1956, as amended, 29 L.P.R.A. § 245 et seq.; The Christmas Bonus Act, Law 148 of June 30, 1969, as amended, 29 L.P.R.A. § 501 et seq

2
 The sums are relatively small, totaling $654.56 for defendant Miguel A. Rosario and $1076.53 for defendant Juan F. Perez-Rosado


IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

WR-46,226-02

EX PARTE TRAVIS TREVINO RUNNELS

ON APPLICATION FOR WRIT OF HABEAS CORPUS
CAUSE NO. W-48950-01-D IN THE 320TH JUDICIAL DISTRICT COURT
POTTER COUNTY

 Per Curiam.

O R D E R

	This is a post conviction application for writ of habeas corpus filed pursuant to the
provisions of Texas Code of Criminal Procedure Article 11.071, § 5.
	In October 2005, applicant was convicted of the offense of capital murder.  The jury
answered the special issues submitted pursuant to Article 37.071, Tex. Code Crim. Proc.,
and the trial court, accordingly, set punishment at death.  This Court affirmed applicant's
conviction and sentence on direct appeal.  Runnels v.  State, No. AP-75,318 (Tex. Crim. App.
September 12, 2007).
	In his application, applicant presents eleven allegations in which he challenges the
validity of his conviction and resulting sentence.  In his first allegation, he claims that he was
denied effective assistance of counsel because trial counsel's decision not to present any
punishment phase evidence was based on an inadequate mitigation investigation.  See
Strickland v. Washington, 466 U.S. 668 (1984); Wiggins v. Smith, 123 S. Ct. 2527 (2003).
The reasons for counsel's conduct do not appear in the habeas corpus record.  Accordingly,
we remand the application to the trial court for consideration of this claim.
	Applicant further alleges in his second allegation that his guilty plea was involuntary
because counsel led him to believe that they would present mitigating evidence at the
punishment phase.  We remand the application to the trial court for consideration of this
claim to the extent that it is not procedurally barred, and to the extent that it impacts the first
allegation of ineffective assistance of counsel.
	Further, in considering these claims, the trial court shall direct trial counsel Laura
Hamilton to respond to the claims in a live evidentiary hearing.  Following the receipt of live,
testimonial evidence, the trial court shall make any findings of fact and conclusions of law
relevant and appropriate to the disposition of these claims.  A supplemental transcript shall
thereafter be returned to this Court.

	This application for habeas corpus relief will be held in abeyance pending the trial
court's compliance with this order.  The trial court shall resolve the issues presented within
90 days of the date of this order. (1)  A supplemental transcript containing counsel's affidavit
and any additional findings of fact and conclusions of law shall be returned to this Court
within 120 days of the date of this order. (2)
	IT IS SO ORDERED THIS THE 8TH DAY OF JUNE, 2011.

Do Not Publish
1.   In the event any continuances are granted, copies of the order granting the continuance
should be provided to this Court.
2.   Any extensions of this time period should be obtained from this Court.