200 F.3d 351 (5th Cir. 2000)
ESTATE OF ALTO B. CERVIN, DECEASED; NITA-CAROL CERVIN MISKOVITCH and BENNETT W. CERVIN, Executors, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 98-60503
IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT
January 24, 2000

Appeal from the Decision of the United States Tax CourtBefore HIGGINBOTHAM and SMITH, Circuit Judges, and DUPLANTIER, District Judge.*
JERRY E. SMITH, Circuit Judge:

1
As a "prevailing party" in a previous tax deficiency dispute with the Internal Revenue Service (the "IRS," the "government," or the "Commissioner"), the taxpayer appeals the Tax Court's denial of an award of attorneys' fees above the $75 per hour limit imposed by the Internal Revenue Code.  Because we agree with the Tax Court that no "special factor" existed to justify deviating from the statutorily-imposed cap, we affirm.

I.

2
Alto Cervin (the "decedent") had two children, Bennett Cervin and Nita-Carol Cervin Miskovitch, who were the heirs and co-executors of the estate.1  In response to the federal tax return filed by the estate, the IRS  issued a notice of deficiency that, in pertinent part, involved (1) an adjustment of the value of the decedent's fractional interests in each of four real properties (The estate had valued each property at a 25% discount for the decedent's fractional interest.) and (2) the inclusion in the estate of 100% of the value of three life insurance policies on the decedent's life that had been purchased during his marriage to his predeceased spouse.  In response to the notice of deficiency, petitioners filed a petition for redetermination in the Tax Court.

3
In an earlier opinion, the Tax Court had decided that the gross estate included 100% of the proceeds from the life insurance policies and that a 20% discount applied in valuing the real properties.  See Estate of Cervin v. Commissioner, T.C.M. (CCH) 1115 (1994).  The estate then moved for an award of its litigation costs pursuant to 26 U.S.C.  7430 on the ground that it had substantially prevailed with respect to both the amount in controversy and as to the most significant set of issues.  The Tax Court denied the motion.

4
The estate appealed on the insurance and litigation costs issues, asserting that only 50% of the life insurance proceeds should be included in the gross estate and claiming entitlement to an award of reasonable litigation costs under  7430.  We reversed, holding that petitioners had substantially prevailed with respect to the amount in controversy and that the Commissioner's position with respect to the insurance proceeds and the property valuation was "not substantially justified."  Thus, we held that the estate was entitled to recover its reasonable litigation costs, and we remanded for the Tax Court to determine the correct tax due and the amount of attorneys' fees and other litigation costs to be recovered.  See Estate of Cervin v. Commissioner, 111 F.3d 1252 (5th Cir. 1997) ("Cervin I").

5
On remand, the Tax Court recalculated the amount of tax due and found that all the attorney time resulting in fees sought by the petitioners should be allowed but that no "special factor" existed to justify the award of fees in excess of the statutory $75 cap.  See T.C. Memo 1998-176 (May 12, 1998) at 7.  Thus, the Tax Court awarded $88,963.56 in fees and costs, rather than the $224,063.55 claimed by petitioners.

II.

6
Section 7430 of the Internal Revenue Code, 26 U.S.C.  7430, states that a "prevailing party" can recover "reasonable litigation costs," including reasonable fees paid to attorneys, but that "such fees shall not be in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for such proceeding, justifies a higher rate" (emphasis added).  See  7430(C)(1)(b)(iii).  In support of theircontention that they are entitled to the full amount of fees they were charged, petitioners assert two distinct theories that they allege establish a "special factor."

7
First, petitioners argue that their attorney's expertise in tax law, combined with his expertise in Texas community property and insurance laws, constitutes a special factor, because it was necessary to the litigation.  Second, they assert, in the alternative, that the Commissioner's "untenable" litigation positions in the Tax Court deficiency proceeding and in Cervin I should also be considered special factors.  In support of this second argument, petitioners point out that the position the Commissioner took in the proposed deficiency was contrary to well-established Texas law, that the position was in violation of the IRS's own regulation and its revenue ruling, and that it was contrary to Estate of Cavanaugh v. Commissioner, 51 F.3d 597 (5th Cir. 1995).

8
We review for abuse of discretion the Tax Court's determination that no special factor existed.  See Pierce v. Underwood, 487 U.S. 552, 571 (1988); Powers v. Commissioner, 43 F.3d 172, 179 (5th Cir. 1995).  In determining the meaning of the "special factor" exception to the statutory cap, this court has looked to cases interpreting the identically worded provision of the Equal Access to Justice Act ("EAJA"), 28 U.S.C.  2412(d).  See, e.g., Powers, 43 F.3d at 183.

A.

9
Petitioners assert that their attorney's special expertise in tax law and Texas community property and insurance laws constitutes a special factor because that expertise was necessary to the litigation.  As further support for their claim, they point to the limited availability of attorneys with the required specialization and to the fact that an increased award of fees would help alleviate such shortage.  In response, the Commissioner urges that a speciality in tax law can never be sufficient to meet the requirements of the "special factor" analysis and that petitioners must show, instead, that their attorney possessed some unique "nonlegal or technical" abilities that contributed to the limited availability of attorneys capable of handling the litigation.

10
In Underwood, 487 U.S. at 571-72, the Court interpreted the "limited availability" special factor language in the EAJA and explained that

11
[i]f the "limited availability of qualified attorneys for the proceedings involved" meant merely that lawyers skilled and experienced enough to try the case are in short supply, it would effectively eliminate the $75 cap . . . .  We think it refers to attorneys having some distinctive knowledge or specialized skill needful for the litigation in questionas opposed to an extraordinary level of the general lawyerly knowledge and ability useful in all litigation.  Examples of the former would be an identifiable practice speciality such as patent law, or knowledge of foreign law or language.

12
As a result of Underwood, this court adopted a two-pronged test to determine whether limited availability and specialization can constitute a "special factor."  Under that test, a limited-availability special factor exists if "(1) the number of competent attorneys who handle cases in the specialized field is so limited that individuals who have possibly valid claims are unable to secure representation; and (2) . . . by increasing the fee, the availability of lawyers for these cases will actually be increased."  Perales v. Casillas, 950 F.2d 1066, 1078 (5th Cir. 1992).  Thus, petitioners correctly observe that the special factor inquiry involves consideration of three criteria: (1) whether the attorneys had a specialized skill that was necessary to the litigation; (2) whether the number of attorneys with such skill was so limited that litigants with potentially valid claims were unable to obtain counsel; and (3) whetheran increased fee award would have reduced this shortage.

13
We further delineated the "special factor" analysis in several cases since Underwood.  First, in Bode v. United States, 919 F.2d 1044 (5th Cir. 1990), we held that "counsel's expertise in tax law, in and of itself, is not a special factor warranting a fee award in excess of $75 per hour under section 7430."  Id. at 1050.  We did note in dictum, however, that the attorney's "[s]pecial legal expertise about the quarterhorse industry may well have qualified as a special factor," but that the taxpayers had failed to establish such attorney's limited availability in that case.  See id. at 1051.

14
Next, in Perales, we focused on the language of Underwood that provided examples of the types of expertise that could qualify as a special factor under the "limited availability" inquiry.  Specifically, we noted "that patent law appropriately represents a specialized area because of the specific technical training required of members of the Patent Bar," including "scientific and technical qualifications, which make them uniquely qualified to render a valuable service," and the fact that "the Patent and Trademark Office administers a separate examination for admission to the Patent Bar, further restricting the pool of potential attorneys."  Perales, 950 F.2d at 1078 & n.15.  We  concluded that

15
we believe that the Supreme Court in Underwood intended to distinguish nonlegal or technical abilities possessed by, for example, patent lawyers and experts in foreign law, from other types of substantive specializations currently proliferating within the profession.  In a sense, every attorney practicing within a narrow field could claim specialized knowledge.

16
Id. at 1078 (emphasis added).

17
This articulation of the "limited availability" standard illustrates this court's view that this is  a very narrow exception.  And under this test, the skills of petitioners' attorney do not qualify as a special factor.

18
Petitioners do not point to any "nonlegal or technical abilities" possessed by their attorney, and none was  necessary.  Rather, petitioners' attorney apparently possessed skill in several legal areas, such as tax law and Texas community property and insurance laws, that proved useful, even necessary, for the successful litigation of this case.  But under the Perales standard, that is not enough.

19
Petitioners urge that the standard articulated in Perales is mere dictum and that the  holding that increased fees were not available actually was premised on the fact that the district court had not found a limited availability of qualified attorneys to handle immigration cases.  See id. at 1079.  On this point, petitioners are correct that the discussion of patent law and of "nonlegal or technical abilities" was not outcome-determinative.

20
Three years later, however, we reconfirmed the approach of Perales in Powers, noting that Perales had "explained that a 'special factor' under the EAJA means nonlegal or technical abilities possessed by, for example, patent lawyers and experts in foreign law, as distinguished from other types of substantive specializations currently proliferating within the profession."  Id. at 183.  We also said it was not enough that "Powers needed the services of a tax attorney as well as an attorney with 'an extraordinary level of general lawyerly knowledge.'" Id.

21
Again, petitioners seek to distinguish Powers by arguing that its endorsement of the Perales standard was not necessary to the holding.  Petitioners are correct that the court noted that, unlike the estate in the instant case, "Powers submitted no evidence that there was a shortage of lawyers who could have handled this case, nor did he show that the field of available lawyers would be enlarged by increasing the fee award."  Id.

22
But, at a minimum, Bode, Perales, and Powers evince this court's assessment that the Supreme Court intended its listing of the patent and foreign-language lawyer examples to be narrow exceptions, and these cases demonstrate the judicial conclusion that "Congress thought that $75 an hour was generally quite enough public reimbursement for lawyers' fees, whatever the local or national market might be."  Underwood, 487 U.S. at 572.  Thus, to the extent that Perales and Powers left any room for doubt about whether the "special factor" analysis requires "nonlegal or technical abilities," we now conclude that it does so require.

23
This conclusion is bolstered by the fact that the award of any attorneys' fees can happen only pursuant to a waiver of sovereign immunity.  As a result, such waiver must be strictly construed.  See Fenton v. Federal Ins. Adm'r, 633 F.2d 1119, 1122 (5th Cir. Jan. 1981)  ("[A]s a limited waiver of sovereign immunity, [EAJA] is to be strictly observed.").2

24
Petitioners also assert that because they presented expert-witness testimony that established all three of the required criteria, and because the Commissioner did not challenge this evidence, the Tax Court's finding that no special factor exists violated the holding of Powell v. Commissioner, 891 F.2d 1167, 1173 (5th Cir. 1990).  Specifically, they argue that the Tax Court abused its discretion by disregarding the only evidence on the record regarding an enhanced award.  Essentially this is an argument, based on Powell and Bode, that by not challenging petitioners' evidence, the government has waived its ability to challenge a conclusion that higher fees are warranted.

25
Petitioners misread those cases and impermissibly expand the limited waiver contemplated by either.  For example, in Bode the court held that "because the United States did not controvert the expert's opinion on the unavailability of qualified counsel for this type of case, the United States . . . has waived this factual issue and cannot now contend that the taxpayers could have obtained qualified legal counsel for less."  Bode, 919 F.2d at 1051 (emphasis added) (citing, inter alia, Powell, 891 F.2d at 1173).

26
Even if the Commissioner has waived the right to challenge a factual conclusion that there were a limited number of attorneys available in the local or national legal market, this does nothing to help petitioners with the fact that they have not established the first of their three suggested criteriai.e., they have not shown the requisite "specialty" as that criteria is understood in Perales and Powers.  Notwithstanding any shortage in the number of tax attorneys who also have specialized knowledge of Texas community property or insurance law, the necessity of engaging such attorneys can never be a "special factor," because the attorney's skills are not "nonlegal or technical abilities."  See Perales, 950 F.2d at 1078; Powers, 43 F.3d at 183.  Thus, in light of this circuit's consistently narrow interpretation of what can constitute a "specialty and limited availability" of qualified attorneys under the special factor analysis, and specifically in light of Perales and Powers, petitioners have failed to show entitlement to enhanced attorneys' fees.

B.

27
In addition to their argument that their attorney was sufficiently specialized and unique to warrant a "special factor," petitioners assert that the Commissioner's "untenable" litigation positions unreasonably complicated and prolonged this litigation, causing petitioners significant legal expenses and hardship.  As a result, petitioners urge us to adopt a new "special factor," not previously recognized by this court, that would allow for an increase infees where the government's behavior was particularly egregious.

28
In support of this argument, petitioners urge us to "follow those courts that have indicated that a flagrantly improper litigation position may constitute a special factor under  7430," and they rely most notably on Jean v. Nelson, 863 F.2d 759 (11th Cir. 1988), aff'd on other grounds, 496 U.S. 154 (1990).3  There, the court confronted the question whether the government's general posture in the litigation could be a special factor under the statute and under Underwood.

29
In analyzing Underwood, the Jean court opined that the Supreme Court "gives little guidance as to what can constitute a special factor," and it concluded that, therefore, "the Court appears to have recognized that judicial construction of the 'special factor' term is likely to evolve with time."  Jean, 863 F.2d at 776.  The Jean court then remanded to allow the district court to "approach this question anew."  Id.  Before it did so, however, the court noted in a footnote that "if the Government in this case advanced litigation for any improper purpose such as harassment, unnecessary delay or increase in plaintiffs' expense, then consistent with [Underwood], its action warrants the imposition of a special factor." Id. at 776 n.13.  It is on this footnote that petitioners base the bulk of their argument.

30
In response, the Commissioner argues first that "well-settled" principles of statutory construction counsel that the phrase "such as" is not a phrase of strict limitation, but is a phrase of general similitude indicating that there are includable other matters of the same kind that are not specifically enumerated by the standard.  The Commissioner urges that in interpreting the "special factor" term found in  7430(c)(1)(B)(iii), we should be mindful of the instructive language that follows"such as the limited availability of qualified attorneys for such proceeding"and the Commissioner concludes that awards of higher fees based on the IRS's litigation positions are not of the "same kind" or "general similitude" as are criteria that relate to the abilities of taxpayer's counsel.

31
Petitioners counter this first argument only by noting that the ejusdem generis canon asserted by the Commissioner is not always controlling or conclusive and that here we should look to the legislative history of the EAJA (because legislative history on the instant statute is sparse) to see that the Commissioner's use of this canon of construction is improper.  According to the legislative history the petitioners cite, the award of attorneys' fees is intended "to reduce the deterrents and disparity [between Government and private-party resources] by entitling certain prevailing parties to recover attorney's fees," thereby creating an additional incentive for private parties to "defend[] against unreasonable Government action."  See H.R. Rep. No.96-1418, 96th Cong., 2d Sess. (1980), reprinted in 1980 U.S.C.C.A.N. 4726, 4974.

32
Assuming, arguendo, that we should use legislative history to inform our construction of the statute, the purposes the petitioners advance are in no way inconsistent with the Commissioner's interpretation.  Nothing in the cited passages supports an award in excess of the $75 per hour statutory rate.  Instead, the more plausible interpretation of the statute, in light of these underlying purposes, is that Congress intended the $75 rate to be sufficient to provide private parties with incentives to "defend against unreasonable Government action."  Petitioners have done nothing to demonstrate why the IRS's "indefensible" litigation positions would increase the hourly rate, as opposed to a mere increase in the number of hours required to litigate the case.4

33
Seen in this light, then, the Commissioner's position is correct that imposition of a special factor in these circumstances essentially would  amount to an impermissible award of punitive damages, contrary to the statute and to principles of sovereign immunity.  Instructive is another court's rejection of a taxpayer's argument that the Commissioner's improper behavior in issuing a notice of deficiency should be considered a special factor:

34
We note, however, that the Commissioner's conduct has already been taken into account by the Tax Court's determination that his positions in the 1980 and 1982 Notices was [sic] "not substantially justified."  The justification, or lack thereof, for the commissioner's position is a threshold question that must be first examined to determine whether a litigant even has a case for fees under  7430.  To also qualify this query as a "special factor" in the calculation of the amount of the fee award is inappropriate; otherwise a "special factors" analysis would amount to a vehicle for assessing punitive damagesa notion that receives no support in the structure or language of the statute.

35
Cassuto v. Commissioner, 936 F.2d 736, 744 (2d Cir. 1991).

36
Petitioners criticize this logic by urging that they do not advocate that "lack of substantial justification" should be a special factor, but, instead, that only in the limited circumstances where the government's position is also "untenable" or "unable to be defended" does the conduct qualify as a special factor.  They also argue that the award of fees would be compensatory, not punitive, because it is based on actual fees incurred.  Moreover, they assert that the award of increased fees is not punitive in nature, because it is not designed to punish and deter improper conduct, but, rather, is based on equitable principles that will encourage taxpayers to stand up for their rights in the face of egregious government action and improper conduct.

37
But once again, petitioners' argument  supports the award only of some fees, and in this case only of the statutorily allowed maximum of $75.  As we have said, petitioners have not demonstrated why a higher hourly rate is necessary to combat the government's allegedly egregious conduct.  While the calculation of damages would be compensatory in nature, the enhancement of  fees above the statutory rate can be justified only under punitive damages principles.5  And the Commissioner correctly points out that  7430 in no way waives sovereign immunity for punitive damages.

38
Therefore, in light of the Commissioner's superior construction of  7430 and of the punitive nature of the remedy suggested by petitioners, we conclude that the government's litigation position cannot be a "special factor" warranting an increase above the statutorily allowed $75 per hour.  This is so regardless of how "untenable" that position might be.  While this holding is in conflict with Jean, it is consistent with Cassuto and is correct as a matter of statutory interpretation and in light of the principle of sovereign immunity.

39
AFFIRMED.

Notes:

*
 District Judge of the Eastern District of Louisiana, sitting by designation.

1
 We refer to the estate and children collectively as "petitioners."

2
 Accord Kenlin Indus., Inc. v. United States, 927 F.2d 782, 786 (4th Cir. 1991) (noting that  7430 "must be strictly construed in favor of the Government").

3
 Petitioners advance a number of additional cases that they suggest support recognition of such a special factor.  For example, they cite Baker v. Bowen, 839 F.2d 1075 (5th Cir. 1988), which states, in dictum, that the government's delay in the payment of attorneys' fees may be a special factor within the meaning of the EAJA.  Baker, however, involved a decision by the district court that such a special factor existed, and this court was unwilling to call such determination an abuse of discretion.  Moreover, we recognized that "increases above [the $75] rate, although permissible, should be awarded sparingly and only after particularized and careful analysis of the individual facts of the case."  Id. at 1082.
Two of the other cases cited by petitioners can also be distinguished in that they involved discretion to the district courts' determinations that special factors existed.  See Oklahoma Aerotronics, Inc. v. United States, 943 F.2d 1344, 1350 (D.C. Cir. 1991); Pollgreen v. Morris, 911 F.2d 527, 537-38 (11th Cir. 1990).  Another case,
In re Moulton, 195 B.R. 954, 959 (Bankr. M.D. Fla. 1996), relies entirely on Jean for its conclusion that "inexcusable and egregious conduct" can constitute a special factor.  Thus, only Jean engages in any analysis of the issue presented in this case, and it is enough for us to consider at length only that decision.

4
 While petitioners respond that the specific litigation positions taken by the Commissioner here required them to hire an attorney with specialities in tax law and Texas community property and insurance laws, such an argument is a thinly veiled attempt to relitigate the contention that we previously rejectedi.e., that petitioners' attorney was sufficiently specialized and of limited availability to qualify for a special factor.  Moreover, petitioners' arguments are contradictory.  It is likely that where the government's position is truly so contrary to well-established law (as suggested by petitioners here), the quality of lawyers needed to defend against such a position should be at least marginally lower.  And at any rate, the government's alleged protraction and delay in this case only serve to increase the ultimate cost it will have to pay in the event of any award of fees.

5
 For these reasons, we decline petitioners' invitation to adopt the analysis employed in Jean.  There, the court employed similarly-flawed reasoning that "improper purpose," "harassment, unnecessary delay, or increase in the plaintiffs' expense" should warrant imposition of a special factor and increased attorneys' fees, rather than merely justifying the award of statutorily-allowed attorneys' fees for all the additional time necessary to defend against the government's positions.


125 Ill. App.3d 1083 (1984)
466 N.E.2d 1116
McDONALD'S CORPORATION, Plaintiff and Counterdefendant-Appellees,
v.
VITTORIO RICCI CHICAGO, INC., Defendant and Counterplaintiff-Appellant.
No. 83-1222.
Illinois Appellate Court  First District (4th Division).
Opinion filed June 28, 1984.
Siegan & Weisman, Ltd., of Chicago, for appellant.
Levy & Erens, of Chicago, for appellee.
Judgment affirmed.
JUSTICE JIGANTI delivered the opinion of the court:
Vittorio Ricci Chicago, Inc. (Ricci), leased the premises at 734 North Michigan Avenue, Chicago, from McDonald's Corporation (McDonald's). The lease provided that Ricci had the right to assign the lease under certain conditions and Ricci claims that it was damaged when McDonald's wrongfully failed to consent to a proposed assignment. McDonald's responds that Ricci was in default for more than 30 days and that consequently, under the terms of the lease, Ricci had no right of assignment. Ricci replies that McDonald's induced it to wait beyond the 30-day default period and therefore McDonald's is estopped from asserting that provision of the lease. McDonald's counters that the default issue had been previously and finally adjudicated *1084 in the first part of the bifurcated trial for rent and possession. The trial court granted McDonald's motion for summary judgment on one count and its motion to dismiss the other. Ricci appeals. On appeal McDonald's raises a procedural matter as a preliminary issue and contends that we should not reach the substance of Ricci's appeal.
The original lease was entered into in 1978. There had been some disagreement, so an amended lease was entered into on August 7, 1980. At that time the facade of the premises was being remodeled. Because of this, the lease provided that June and July rent would not be due until the remodeling was completed. Also, rent was abated from August 1, 1980, until the remodeling was completed.
On October 1, 1980, John L. Henning of McDonald's sent a letter to Allen J. Bodner, Ricci's agent, stating that the facade had been completed on September 30 and that therefore the deferred rent for June and July was now due, as was the October rent. Ricci failed to pay the rent, thereby placing it in default. According to the lease, Ricci had the right to cure the default within 30 days but that if the default continued beyond the 30 days, McDonald's had the right to terminate the lease. Also, Ricci could not exercise its right of assignment while it was in default. Ricci did not tender the rent until November 5, 1980, more than 30 days after it was due. What transpired between October 1 and November 5, 1980, forms the basis of Ricci's claim that McDonald's induced its conduct and is thereby estopped from asserting the 30-day default provision.
On November 26, 1980, McDonald's filed an action for possession and for unpaid rent alleging that Ricci defaulted on the lease by not paying its rent. Ricci filed its answer and two affirmative defenses alleging that written notice of default was not sent and that work on the facade was not completed. Ricci also filed a counterclaim, the claim on appeal here, seeking damages for McDonald's wrongful failure to consent to the assignment. The trial court severed McDonald's rent/possession action from Ricci's counterclaim. On June 15 and 16, 1981, the court presided over the rent/possession trial. On June 30, 1981, the trial court found that in fact notice had been given and that the facade was substantially completed. Therefore, the court concluded that Ricci was in breach of the lease agreement for failure to pay the rent and it entered judgment in McDonald's favor for the unpaid rent and for possession. Although notices of appeal were filed by Ricci, Ricci did not follow through with them. Consequently, they were dismissed for want of prosecution.
McDonald's preliminary contention that this court should not reach the substantive issues raised by Ricci in this appeal is based on *1085 the procedural history following the rent/possession judgment. After the judgment only the Ricci claim for damages was still pending. McDonald's then filed a motion to dismiss that claim for want of prosecution on May 6, 1982. The motion was denied on July 20, 1982, but McDonald's at that hearing requested leave to file a motion for summary judgment. The court gave McDonald's 10 days, until July 30, 1982, to file its motion and also required Ricci to respond by August 20, 1982, to not only the motion for summary judgment, but also to the previously filed motion to dismiss one of the two counts of Ricci's claim for damages. The court set a hearing on the motions for September 16, 1982. Ricci failed to respond to either the motion for summary judgment or the motion to dismiss.
On the hearing date of September 16, 1982, Ricci presented to the court a motion requesting an extension of time to file a responsive pleading. The trial judge entered an order which denied Ricci's motion to extend the time. It further entered a judgment order which granted both McDonald's motion for summary judgment on one count of Ricci's claim and its motion to dismiss the other count of Ricci's claim. That order was entered on September 17, 1982. There is no report of proceedings from the hearing on that date.
Within 30 days, Ricci filed a petition to reconsider which alleged that Ricci's counsel was not able to complete the responsive pleadings due to being engaged in other matters. Attached to the petition was a proposed response to McDonald's motion for summary judgment and also a response to McDonald's motion to dismiss the other count of Ricci's claim. The response to the motion for summary judgment raises the question of whether McDonald's conduct induced Ricci to wait beyond the 30 days, therefore estopping McDonald's from pleading that issue. The trial court heard the petition. At that time, counsel for Ricci stated that at the time his response was due, August 20, 1982, he was otherwise engaged and could not make a motion for a continuance because the trial judge was not sitting. Counsel further explained that he spoke to the clerk in the trial judge's courtroom. The clerk told him that all motions of an emergency nature would be heard by a judge who was handling the trial judge's call, but that for a motion for an extension of time, counsel would have to come in on the date that the trial judge was actually sitting. Counsel also pointed out to the court that he was filing his responses together with his petition to vacate. The trial judge stated that he understood and that he had read and reread the case over and over again, and that it seemed to him that whatever complaint Ricci had against McDonald's had been adjudicated in their rent/possession hearing. The court stated *1086 that the reason for finding that Ricci's claim had already been adjudicated was that the order in the rent/possession hearing made the finding that Ricci was in default on the lease and that therefore Ricci could not take advantage of the right of assignment. Thus, the court concluded that McDonald's could not have wrongfully failed to consent to an assignment.
McDonald's argues that Ricci's attempt to appeal the issues of summary judgment and dismissal is an effort to raise matters in the appellate court which he failed to properly bring before the trial court. In McDonald's view the only issue that this court should consider is whether the trial court properly denied Ricci's motion to extend the time to file a response to McDonald's motions for summary judgment and dismissal. McDonald's contends that Ricci's allegations then were found to be inadequate. Citing Francone v. Weigel Broadcasting Co. (1979), 79 Ill. App.3d 991, 398 N.E.2d 1114, McDonald's states that the trial court must do substantial justice and that due diligence is a factor in substantial justice. Considering the procedural history described, McDonald's contends that Ricci's conduct was not in fact due diligence.
 1 We believe that the substantive issues were raised in the trial court and are properly before this court on review. The trial court considered those issues in ruling on the petition to reconsider. Ricci's petition to reconsider addressed not only the issue of the court's refusal to extend the time to allow it to file the response to McDonald's motions, but also its petition to reconsider was directed to the substance of McDonald's motions, that is, that Ricci was in default. The court's remarks indicate that it considered Ricci's essential contention that the default had been induced by McDonald's conduct, but that it believed that this argument was unavailing because the court had previously ruled in the rent/possession trial that Ricci was in default and that Ricci did not appeal from those rulings. Consequently, in the court's view, the ruling on the default was final and the finding of default precluded Ricci's claim for damages.
 2 Turning to the substantive issue, Ricci contends that it presented an issue of an inducement by McDonald's to waive the 30-day default period; consequently, the trial court improperly granted summary judgment. McDonald's position is that the trial court's ruling in the rent/possession case that Ricci was in default is the law of the case. Since Ricci is in default, McDonald's has no duty to consent to the assignment.
The rule of the law of the case is a rule of practice, based on sound policy that, where an issue is once litigated and decided, that *1087 should be the end of the matter and the unreversed decision of a question of law or fact made during the course of litigation settles that question for all subsequent stages of the suit. (Gertz v. Robert Welch, Inc. (7th Cir.1982), 680 F.2d 527, cert. denied (1983), 459 U.S. 1226, 75 L.Ed.2d 467, 103 S.Ct. 1233; Barrett v. Baylor (7th Cir.1972), 457 F.2d 119.) The trial court order becomes the "law of the case" only if there is a final and appealable order. (Arnold Schaffner, Inc. v. Goodman (1979), 73 Ill. App.3d 729, 392 N.E.2d 375.) In the instant case the trial court has already determined in the action for rent and possession that Ricci was in default on the lease. That order was a final and appealable order from which no appeal was perfected. Since it was decided that Ricci was in default, then it follows that he has no right to assign the lease. This is the law of the case. Therefore, Ricci can have no claim for damages for McDonald's failure to consent to the assignment. Accordingly, the trial court was correct in finding for McDonald's.
Based on the foregoing, we affirm the trial court's decision.
Judgment affirmed.
LINN, P.J., and ROMITI, J., concur.


                                   NO. 07-06-0356-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                               FEBRUARY 27, 2008
                         ______________________________

                        AUBREY JOE JOHNSON, APPELLANT

                                            V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

             FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

              NO. 53,981-C; HONORABLE PATRICK A. PIRTLE, JUDGE
                       _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

                               MEMORANDUM OPINION

       Appellant, Aubrey Joe Johnson, appeals his conviction for the offense of attempted

indecency with a child by contact, enhanced by two prior felonies, and sentence of twenty

five years contending that the evidence was legally insufficient. We affirm.

                                      Background

       On April 22, 2005, appellant drove his vehicle near an apartment residence where

three girls were present; the girls’ ages were from 12 to 14. After circling the area for a
while, appellant stopped his vehicle and called the girls over. When the girls arrived,

appellant asked the girls if any of them wished to pet or see his dog. One of the girls

rejected the offer because she was afraid that the dog would bite; however, appellant said,

“No, not that dog–the dog in my pants.” Appellant then followed that remark by looking

down at his crotch area. One of the girls contacted her mother and the mother confronted

appellant. Appellant denied any such remarks and claimed to be searching for a friend of

his who lived in the neighborhood. The girls and the mother reported the incident to the

police who arrested appellant a few days later.

       At trial, the three girls testified to the encounter with appellant. At the close of the

State’s case, appellant requested an instructed verdict which was denied.                At the

conclusion of the jury trial, the jury returned a verdict of guilty and the trial court sentenced

appellant to twenty-five years incarceration in the Institutional Division of the Texas

Department of Criminal Justice. Appellant now appeals contending that the evidence

presented at trial is legally insufficient to support the conviction because it does not show

an act amounting to more than mere preparation that tends but fails to effect the

commission of the intended offense.

                                     Standard of Review

       In reviewing the legal sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560, 573 (1979); Ross v. State, 133

                                               2
S.W.3d 618, 620 (Tex.Crim.App. 2004). The standard of review applicable to the denial

of a motion for directed verdict is the same as that applied in reviewing the legal sufficiency

of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996); Madden

v. State, 799 S.W.2d 683, 686 (Tex.Crim.App. 1990) (challenge to the trial judge's ruling

on a motion for an instructed verdict is a challenge to the sufficiency of the evidence).

However, the jury is the sole judge of the weight and credibility of the evidence. Clewis

v. State, 922 S.W.2d 126, 132 n.10 (Tex.Crim.App. 1996) (citing Chambers v. State, 805

S.W.2d 459, 461 (Tex.Crim.App. 1991). As an appellate court, we may not sit as a

thirteenth juror, but must uphold the jury’s verdict unless it is irrational or unsupported by

more than a “mere modicum” of evidence. See Moreno v. State, 755 S.W.2d 866, 867

(Tex.Crim.App. 1988). We resolve inconsistencies in the evidence in favor of the verdict.

Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). Circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor. Guevara v. State, 152

S.W.3d 45, 49 (Tex.Crim.App. 2004). Furthermore, the standard of review is the same for

both direct and circumstantial evidence. Id.

                                      Law and Analysis

       The sole focus of appellant’s argument is the denial of his motion for instructed

verdict. Appellant argued that the State failed to show that his actions were not mere

preparatory actions that tended to but failed to effect the commission of the crime charged.

A person attempts a criminal offense if, with specific intent to commit an offense, he does

an act amounting to more than mere preparation that tends but fails to effect the

                                              3
commission of the offense intended. See TEX . PENAL CODE ANN . § 15.01 (Vernon 2003).1

A person commits indecency with a child if, with a child younger than 17 years and not the

person's spouse, engages in sexual contact with the child or causes the child to engage

in sexual contact. See § 21.11. Thus, this case turns on whether appellant’s actions were

more than just preparation. In this case, the State had the three girls testify to the

conversation appellant had with one of the girls. The girl who spoke to appellant testified

that appellant asked her if she wanted to see his dog - the dog in his pants. The other two

girls testified that appellant asked if the first girl wanted to pet the dog in his pants.

Additionally, two of the girls testified that appellant was driving up and down the street and

would, on occasion, look at them. Further, the two girls testified that appellant asked if they

could meet him somewhere, with one of the girls testifying that appellant specifically asked

the girls if they wanted to go to a park with him. All three girls testified that appellant spoke

to the first girl and then glanced down to his pants indicating his private area. Through

cross examination, appellant’s version of the encounter indicated that he was searching

for an acquaintance that lived in the neighborhood.

       However, the jury is the sole weight of the credibility of the evidence. Clewis, 922

S.W.2d at 132 n.10. Though the girls’ testimony had some inconsistencies, we must view

the evidence in favor of the verdict. Curry, 30 S.W.3d at 406. Appellant contends that his

action of glancing down to his pants, at most, can only be viewed as preparatory action that

tends to but fails to effect the commission of the offense. See § 15.01. However, we

believe that this act, though circumstantial, can be viewed in the totality of the evidence as

       1
           Further references to the Texas Penal Code Annotated will be by “§ ___.”

                                               4
indicative of appellant’s intent.       See Christensen v. State, 240 S.W.3d 25, 31

(Tex.App.–Houston [1st Dist.] 2007, pet. ref’d) (appellate court to view all evidence

combined coupled with reasonable inferences from the evidence). Taken together, the

appellant’s conversation of going to the park and petting his dog, the repetitive trips by the

girls’ location, and his glancing gesture toward his pants can establish the criminal intent

to commit the charged offense beyond mere preparation. The multiple trips by the girls’

location could have been interpreted by the jury as appellant seeking a victim; appellant’s

request and glancing gesture could have been interpreted by the jury as appellant’s

directive to the girl or girls to commit the sexual contact. In viewing the evidence in favor

of the verdict, it would be a reasonable inference to believe that appellant’s failure to

complete a criminal offense of indecency with a child was not due to appellant’s lack of

action beyond the preparation stage, but to the girls’ refusal to go with appellant to the park

or to pet the dog in his pants. We conclude that the evidence viewed in the light most

favorable to the verdict is legally sufficient.

                                          Conclusion

       For the foregoing reasons, we affirm.

                                     Mackey K. Hancock
                                          Justice

Do not publish.

                                                  5


                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                 File Name: 11a0288p.06

              UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________

                                              X
                                               -
 REGINALD BROOKS,
                                               -
                           Petitioner-Appellant,
                                               -
                                               -
                                                   No. 11-4142
          v.
                                               ,
                                                >
                                               -
                      Respondent-Appellee. -
 DAVID BOBBY, Warden,
                                               -
                                              N
                Appeal from the United States District Court
               for the Northern District of Ohio at Cleveland.
              No. 01-02461—Donald C. Nugent, District Judge.
                       Decided and Filed: November 9, 2011
           Before: SUTTON, McKEAGUE and GRIFFIN, Circuit Judges.

                                 _________________

                                      COUNSEL
ON BRIEF: Michael J. Benza, Chagrin Falls, Ohio, Alan C. Rossman, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Petitioner. Thomas E.
Madden, Stephen E. Maher, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee. William S. Lazarow, Columbus, Ohio, for Amicus
Curiae.
                                 _________________

                                      OPINION
                                 _________________

       PER CURIAM. Reginald Brooks murdered his three sons as they lay sleeping
in their Cleveland home on the morning of March 6, 1982, two days after his wife served
him with divorce papers. An Ohio court sentenced Brooks to death for the crimes. After
unsuccessfully challenging his conviction and sentence on direct appeal and collateral
review in state court, Brooks filed a petition for a writ of habeas corpus. See 28 U.S.C.
§ 2254. The district court denied Brooks’ petition, and we affirmed. Brooks v. Bagley,

                                           1
No. 11-4142        Brooks v. Bobby                                                  Page 2

513 F.3d 618, 632 (6th Cir. 2008). On March 1, 2011, the State of Ohio scheduled
Brooks’ execution for November 15, 2011.

       On September 23, 2011, Brooks filed a motion in the district court to reopen his
habeas proceeding under Rule 60(b)(6) of the Federal Rules of Civil Procedure. Brooks
alleged (1) that his two habeas attorneys were ineffective because they did not
adequately investigate and present all possible claims, and (2) that one of his habeas
attorneys, Kevin Spellacy, was particularly ineffective because he labored under a
conflict of interest, namely that Spellacy’s father, a state court judge, denied some of
Brooks’ claims on state collateral review. The district court denied Brooks’ Rule 60(b)
motion and an accompanying motion to stay his execution on October 19, 2011. Brooks
appealed the district court’s order and filed a motion in this court to stay his execution.

       We apply a four-factor test in resolving such stay motions: “(1) whether there
is a likelihood he will succeed on the merits of the appeal; (2) whether there is a
likelihood he will suffer irreparable harm absent a stay; (3) whether the stay will cause
substantial harm to others; and (4) whether the [stay] would serve the public interest.”
Bedford v. Bobby, 645 F.3d 372, 375 (6th Cir. 2011). In addition to these four
considerations, we also consider the timeliness of the petitioner’s claims. “[T]here is a
strong equitable presumption against the grant of a stay where a claim could have been
brought at such a time as to allow consideration of the merits without requiring entry of
a stay.” Nelson v. Campbell, 541 U.S. 637, 650 (2004).

       There are five problems with this stay request. First, Brooks waited too long to
file his Rule 60(b) motion. He has known about the factual underpinnings of his
conflict-of-interest argument since at least July 24, 2006, when he filed a motion in this
court to remand his first federal habeas petition to the district court based on Mr.
Spellacy’s conflict of interest (which we denied). And he has known about his habeas
counsel’s alleged failure to investigate and present his claims since at least June 14,
2006, when he filed a motion in this court seeking a certificate of appealability on the
issue (which we also denied). Brooks could have filed a Rule 60(b) motion in the
district court raising these claims at any time during the last five years, but instead he
No. 11-4142         Brooks v. Bobby                                                   Page 3

waited until September 23, 2011—53 days before his scheduled execution—to do so.
Brooks offers no justification for this delay.        This unexplained, and seemingly
inexplicable, delay in filing his motion by itself justifies denying the stay. See Nelson,
541 U.S. at 650; Bedford, 645 F.3d at 375–77.

        Second, even if these claims were not late, the law-of-the-case doctrine bars
them. See United States v. Haynes, 468 F.3d 422, 426 (6th Cir. 2006). Brooks raised
both claims in his first federal habeas appeal to this court and in his certiorari petition
to the United States Supreme Court. See Petition for Certificate of Appealability (June
14, 2006) at 150–65; Motion to Remand (July 24, 2006); Brief on the Merits (July 18,
2007) at 74–93; Petition for Rehearing and En Banc Review (Feb. 19, 2008) at 13–15;
Petition for a Writ of Certiorari (Nov. 6, 2008). We rejected them. A litigant may not
raise arguments during the first federal habeas proceeding, lose those arguments
(because he could not show prejudice), then raise the same arguments based on the same
evidence in a Rule 60(b) motion.

        Third, and relatedly, even if the claims were not late and even if they were not
previously litigated, Brooks cannot overcome the bar on second or successive habeas
petitions. When a Rule 60(b) motion “seeks to add a new ground for relief,” whether
akin to or different from the claims raised in the first petition, the courts generally treat
it as a second or successive petition. Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). As
an example of just such a motion, Gonzalez cited Harris v. United States, 367 F.3d 74
(2d Cir. 2004), in which a habeas petitioner sought to reopen his habeas proceeding
because his attorney ineffectively failed to raise a claim. Id. at 80. Brooks wants to do
just that—to reopen his habeas proceeding so that he can litigate claims that the alleged
ineffectiveness of his attorneys prevented him from fully litigating in the first habeas go-
round. Not all Rule 60(b) motions in habeas cases, to be sure, amount to successive
petitions. Those that do not seek to add a new ground for relief but instead raise “some
defect in the integrity of the federal habeas proceeding,” such as “[f]raud on the federal
habeas court,” are not successive petitions. Gonzalez, 545 U.S. at 532 & n.5. But an
“attack based on . . . habeas counsel’s omissions”—just what Brooks raises
No. 11-4142         Brooks v. Bobby                                                   Page 4

here—“ordinarily does not go to the integrity of the [earlier federal] proceedings.” Id.
at 532 n.5. Neither of Brooks’ ineffective-assistance claims amounts to fraud on the
court. And the claims, as presented, do not undermine the “integrity” of the first federal
habeas proceeding.       The first theory—general ineffective assistance of habeas
counsel—is a plain-vanilla successive petition designed to do nothing more than attack
his earlier counsel’s omissions. See id. at 532; Post v. Bradshaw, 422 F.3d 419, 424–25
(6th Cir. 2005). If the successive-petition bar does not limit this theory, it limits nothing.
It is possible that the second theory—that a conflict of interest led to the ineffective
assistance of one of his habeas counsel—could under sufficiently egregious conditions
haunt the integrity of a first federal habeas proceeding. But that is not so here. There
were two counsel, not one, and both counsel challenged the relevant state court rulings.
Perhaps more importantly, the issue came to light during the appeal from the first
proceeding, making it difficult to say that a second habeas proceeding is needed to
correct the integrity of the first proceeding. Brooks nowhere attempts to argue that he
can satisfy the requirements for allowing a successive petition.             See 28 U.S.C.
§ 2244(b)(2). Nor do we see any way he could do so.

        Fourth, even if the claims were not late, law-of-the-case barred and successive-
petition barred, they fail to account for a pertinent congressional directive. “The
ineffectiveness or incompetence of counsel during Federal or State collateral post-
conviction proceedings shall not be a ground for relief in a proceeding arising under
section 2254.” 28 U.S.C. § 2254(i). Our court, not surprisingly, has construed this
language to mean what it says: to bar a Rule 60(b) motion based on the ineffectiveness
of habeas counsel.       Post, 422 F.3d at 423.         Brooks has not challenged the
constitutionality of § 2254(i), and we see no way to escape the clutches of this statutory
bar, at least when it comes to his conventional ineffective-assistance claim and possibly
(we need not decide) with respect to his conflict-of-interest claim.

        Fifth, even if we overlooked all of these problems, Brooks has no chance of
success on the merits with respect to either theory, which alone suffices to reject the
stay. See Workman v. Bredesen, 486 F.3d 896, 911 (6th Cir. 2007). Brooks claims that
No. 11-4142         Brooks v. Bobby                                                  Page 5

his two habeas attorneys did not diligently investigate and present his claims, but they
filed an exhaustive 73-page habeas petition raising 20 claims and a still-more-exhaustive
136-page reply brief responding to the State’s arguments. True, they did not raise every
conceivable claim. But “winnowing out weaker arguments . . . and focusing on those
more likely to prevail, far from being evidence of incompetence, is the hallmark of
effective . . . advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986). Making matters
worse, Brooks to this day does not tell us what unraised claim had a meaningful chance
of prevailing, a deficiency that necessarily establishes a lack of prejudice.

        Brooks’ conflict-of-interest claim concerning Kevin Spellacy—itself a species
of an ineffective-assistance claim, see Cuyler v. Sullivan, 446 U.S. 335, 345 (1980)
(characterizing a conflict-of-interest claim as one alleging denial of “effective assistance
of counsel”)—fares no better. To prevail on this claim, Brooks must demonstrate an
actual conflict of interest that adversely affected his attorney’s performance. Mickens
v. Taylor, 535 U.S. 162, 172 n.5 (2002); Cuyler, 446 U.S. at 350. Even if we assume
that Spellacy had a conflict because his father was one of the many state court judges
who rejected Brooks’ collateral claims, Brooks has not shown that the conflict adversely
affected Spellacy’s performance by “influenc[ing] . . . his basic strategic decisions.”
Mickens, 535 U.S. at 172. Brooks submits that family loyalty prevented Spellacy from
challenging the state-court decisions (1) rejecting Brooks’ ineffective-assistance-of-
appellate-counsel claim and (2) denying Brooks’ request for a competency evaluation
at state expense during his state collateral challenge. But the habeas petition that
Spellacy (and his conflict-free co-counsel Patrick D’Angelo) filed in the district court
showed no such restraint. They filed an ineffective-assistance-of-appellate counsel
claim, R. 21 at 39–49, which the district court rejected on the merits. R. 30 at 89–91.
Although Brooks’ two habeas counsel did not challenge the denial of a state-funded
competency evaluation, they had a good reason for opting not to do so, quite apart from
family loyalty. Any challenge would face a long and steep climb. As the Ohio Supreme
Court noted in rejecting the same request, Brooks’ competency at that stage was “simply
not relevant” because the Federal and State Constitutions do not require that a defendant
be competent to pursue state post-conviction relief. State v. Brooks, 751 N.E.2d 1040,
No. 11-4142         Brooks v. Bobby                                                  Page 6

1042 (Ohio 2001). Brooks offers no United States Supreme Court precedent to the
contrary or for that matter any federal authority to support the idea that the United States
Constitution requires a State to pay for a competency evaluation during state collateral
review. Because Brooks cannot show that Spellacy’s purported conflict adversely
affected his performance, he is not entitled to a presumption of prejudice. See Strickland
v. Washington, 466 U.S. 668, 692 (1980). Nor has he pointed to any prejudice on his
own. Indeed, during Brooks’ first appeal we denied his motion to remand his habeas
petition based on this alleged conflict of interest because he did not show any prejudice
then either. See Court Order (Oct. 31, 2006). Nothing has changed.

        None of Brooks’ contrary arguments overcomes these problems. Brooks claims
that Post was wrong to conclude that 28 U.S.C. § 2254(i) bars this kind of challenge to
the performance of habeas counsel. 422 F.3d at 423. But Post merely applied the
statute’s straightforward language, giving it the meaning it unambiguously has. Brooks’
habeas petition is “a proceeding arising under section 2254,” and his Rule 60(b) motion
seeks “relief” based on “[t]he ineffectiveness or incompetence of counsel during Federal
. . . collateral post-conviction proceedings.” That is just what § 2254(i) bars.

        Brooks adds that we should stay his execution pending the Supreme Court’s
decision in Martel v. Clair. But the issue in Clair—the standard that a federal court must
apply when a habeas petitioner seeks substitute counsel under 18 U.S.C. § 3599—has
no bearing on Brooks’ Rule 60(b) motion. See Clair v. Ayers, 403 F. App’x 276, 277–78
(9th Cir. 2010); Brief for Petitioner at i, 13, Martel v. Clair, No. 10-1265 (U.S. Sept. 9,
2011), 2011 WL 369341. The Court’s decision in Clair is unlikely to say anything about
any of the problems dogging Brooks’ motion, let alone all five of them. (In his reply
brief, Brooks also suggests that we should wait on the Supreme Court’s decisions in
Martinez v. Ryan and Maples v. Thomas, Reply Br. at 10–11, but those cases deal only
with state post-conviction proceedings and likely will say nothing about the duties of
federal habeas counsel).

        When all is said and done, Brooks seeks an unusual remedy—a second first
federal habeas hearing. That he seeks to do so on ineffective-assistance grounds makes
No. 11-4142        Brooks v. Bobby                                                 Page 7

the request all the more rare. The Constitution does not guarantee counsel on collateral
review, see Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), and 28 U.S.C. § 2254(i)
prohibits habeas claims premised on the ineffective assistance of habeas counsel. Even
if allegations of a conflict of interest (affecting one of two habeas lawyers) could alter
or suspend many of these tenets of federal habeas law, a point we need not decide, we
see no cognizable path for granting a second first federal habeas proceeding in the
absence of a showing that the conflict of interest mattered—that it adversely affected the
representation provided to the claimant. Indeed, even a presumption of prejudice, the
supposed holy grail of Brooks’ claim, must account for what the conflicted and un-
conflicted lawyer did. To this day, Brooks’ new (highly effective) counsel have
unearthed nothing that offers any hint that a second federal habeas proceeding would
come out differently from the first federal habeas proceeding.

       For these reasons, we deny Brooks’ motion for a stay of execution.


257 P.3d 253 (2011)
STATE
v.
VIRTUCIO.
No. 29560.
Intermediate Court of Appeals of Hawai`i.
May 26, 2011.
Summary Dispositional Order Affirmed.


810 F.Supp. 674 (1993)
HOWARD OAKS, INC.
v.
MARYLAND NATIONAL BANK, MNC Financial, Inc.
Civ. No. S 92-3331.
United States District Court, D. Maryland.
January 13, 1993.
*675 Murray L. Deutchman, Rockville, MD, for plaintiff.
Clifford C. Whitney, III, J. Preston Turner, Maryland Nat. Bank, Office of Sp. Assets Counsel, Baltimore, MD, for defendant.

MEMORANDUM OPINION
SMALKIN, District Judge:
This is a case removed to this Court on the basis of two federal claims pleaded in the plaintiff's state court complaint, filed originally in the Circuit Court for Baltimore City, Maryland. That complaint followed the plaintiff's unsuccessful attempt, in the Circuit Court for Baltimore County, to vacate a confessed judgment in the amount of some $8,000,000.00 entered against it at the behest of Maryland National Bank (MNB), in consequence of defaulted loans. Judge Levitz of the Baltimore County court held that Howard Oaks, in the 33 page affidavit of its sole shareholder and CEO, Mr. Miller, had failed to show the existence of any meritorious defense. Howard Oaks immediately maneuvered to stave off the effect of the judgment by appealing it (and Judge Levitz's order denying the motion to vacate) to the Court of Special Appeals of Maryland. Howard Oaks took other steps, as well, to prevent Maryland National from collecting on its judgment, including the filing of a Suggestion of Bankruptcy with the Court of Special Appeals, which resulted in a stay, issued by that Court, of the appeal pending further order of the Bankruptcy Court. A few months later, while Maryland National was precluded from enforcing its judgment by Howard Oaks' defensive *676 maneuvers, Howard Oaks seized the offensive by suing Maryland National Bank and its parent, Maryland National Financial, in the Baltimore City suit, making a number of claims typical of "lender malpractice" suits. Indeed, the very filing of such a suit, in which the borrower essentially blames the lender for its business failure, might remind the lay observer of Danton's famous exhortation to the Legislative Assembly, "Il nous faut de l'audace, encore de l'audace, toujours de l'audace," see Bartlett's Familiar Quotations (15th ed. 1980) at 412 n. 1, but the fact is that the Court of Special Appeals of Maryland has labelled the proliferation of such suits a "growth industry." Parker v. Columbia Bank, 91 Md.App. 346, 351, 604 A.2d 521, cert. denied, 327 Md. 524, 610 A.2d 796 (1992).
Presently, the suit is pending on the defendants' motion to dismiss, which has been briefed. Although the Court warned counsel that the present motion would be treated as a motion for summary judgment because it was accompanied by materials outside the pleading, the Court has, in the event, treated it as a motion to dismiss under Rule 12(b)(6), by confining its analysis to the legal sufficiency of the allegations of the complaint. No oral hearing on the motion is needed. Local Rule 105.6, D.Md.
The motion to dismiss will be granted for the reasons set forth below. Keeping in mind that the Court must take the allegations of the complaint as true, it still must be dismissed if it fails to allege essential elements of the claims asserted or is otherwise not maintainable as a matter of law.
First, the Court agrees that the complaint alleges no cognizable claims against MNC Financial, nor does it allege any conduct that would justify piercing the corporate veil between MNB and MNC Financial under settled principles of law. Cf. Call Carl, Inc. v. BP Oil Corp., 391 F.Supp. 367, 371 (D.Md.1975), aff'd. in part and rev'd. in part on other grounds, 554 F.2d 623 (4th Cir.), cert. denied, 434 U.S. 923, 98 S.Ct. 400, 54 L.Ed.2d 280 (1977). In that the complaint fails to state any meritorious claim, though, this question is rather academic.
The Court begins its analysis of defendants' first issue, res judicata, by noting that, although it is on appeal, the judgment rendered in Baltimore County is entitled in this Court to receive full faith and credit, i.e., the same preclusive effect as it would be given in a state court of Maryland. Confessed judgments are judgments on the merits, entitled to preclusive effect under Maryland law, see Boyce v. Plitt, 274 Md. 333, 335-36, 335 A.2d 101 (1975), and the fact that an appeal is lodged does not necessarily disturb the finality of the judgment.
The finality of the Baltimore County judgment, however, does not, under Maryland law, preclude the plaintiff from maintaining this action. In Rowland v. Harrison, 320 Md. 223, 577 A.2d 51 (1990), the Court of Appeals noted that, because Maryland does not have a compulsory counterclaim rule, a matter that could be raised either as a defense or as an affirmative claim for relief is not barred by res judicata simply because it was not raised in a prior proceeding between the parties. To bar the action, it must have been actually litigated, in which case it is the principle of collateral estoppel, not res judicata, that bars the claim. 320 Md. at 236 n. 5, 577 A.2d 51. It is clear that none of plaintiff's claims was actually litigated in the Baltimore County proceeding.
This, however, is cold comfort to the plaintiff, because its allegations do not state facially meritorious claims under the governing law.
Count I is defective because it does not contend that the written credit agreement between the parties was breached (except perhaps in a way asserted in other counts that will be dealt with below, such as the alleged breach of the duty of good faith). Rather, it contends that there were assurances, oral and written, beyond the face of the loan documents, that bound MNB to continue to fund Howard Oaks. Lender malpractice suits based on such "side agreements" are precisely the sort of *677 mischief that the Maryland legislature intended to curtail by enactment of Md.Cts. & Jud.Proc.Code Ann. § 5-317 (1989 repl. vol.), which clearly bars the claim attempted to be asserted in Count One.
Even if not barred by that statute, Count I, alleging breach of a stated intent to make further loans, would merely amount to a claim that defendant breached an intention to enter into a further loan agreement in the future, which is not actionable under Maryland law. See Phoenix Mutual Life Ins. Co. v. Shady Grove Plaza Ltd. Partnership, 734 F.Supp. 1181, 1186 (D.Md.1990), aff'd. table, 937 F.2d 603 (4th Cir.1991).
Count II also fails on the face of the complaint, because the complaint itself establishes the plaintiff as a sophisticated creation of a sophisticated businessman, whose reliance on the alleged fraudulent inducements of MNB was unreasonable as a matter of Maryland law, given the parties' relationship and the loan contracts actually executed between them (according to the complaint itself), which stated finite loan limits. See Phoenix Mutual, supra, 734 F.Supp. at 1192. See also, Foremost Guar. Corp. v. Meritor Sav. Bank, 910 F.2d 118, 123-26 (4th Cir.1990). Although reasonableness of reliance is sometimes a question of fact that should await trial or summary judgment, this case is unusual in that the complaint itself shows the level of Miller's sophistication, as well as the sophistication of the deal as a whole. Thus, a motion to dismiss, based on the allegations of the complaint, is in order, and the issue need not await a motion for summary judgment.
The Court notes that, in its opposition, plaintiff has offered to dismiss Counts III and IV, but that offer was not to dismiss them with prejudice. In that there is other litigation between the parties in state court involving these claims (at least potentially), the interests of judicial economy indicate that this Court should address whether the claims have legal merit or not, rather than simply accept their voluntary dismissal.
As to Count III, the undersigned disagrees with the decision of Senior Judge Murray in Quality Automotive Co. v. Signet Bank/Maryland, 775 F.Supp. 849 (D.Md.1991), which recognized a Maryland tort cause of action for breach of the duty of good faith in commercial dealings, arising from § 1-203 of the Uniform Commercial Code (U.C.C.). First, the U.C.C. should not be looked to as a source for tort duties or causes of action by implication; it was clearly intended only to give form to the commercial law of contract, not to be a source of tort law. Second, the Court is convinced that the authority relied upon by Judge Murray is unsound and would not be accepted by the Court of Appeals of Maryland. See Wilson v. Ford Motor Co., 656 F.2d 960 (4th Cir.1981). Rather, this Court holds that, under the U.C.C. as well as the general law of Maryland, there is no independent duty of good faith in commercial dealing enforceable by an action ex delicto. Under U.C.C. § 1-203, the duty of good faith is an accompaniment to the exercise of contractual rights and the performance of contractual duties; unless the contract itself obligates a party to perform a certain duty, no independent duty of good faith compels it to do so. See Parker v. Columbia Bank, supra, 91 Md.App. at 366, 604 A.2d 521. Cf. Republic Ins. Co. v. Board of County Comm'rs., 68 Md.App. 428, 432, 511 A.2d 1136 (1986) (no tort remedy of "bad faith" for failure to perform contract duty). The Court also holds that Count IV, to the extent that it asserts a tort claim for "bad faith" outside the U.C.C., is expressly barred by Maryland law. Republic Insurance Co., supra, at 432, 511 A.2d 1136.
Next, the Court is of the opinion that Count V is also barred. Maryland does not recognize a cause of action for negligent breach of contract, see Heckrotte v. Riddle, 224 Md. 591, 595-96, 168 A.2d 879 (1960), and this complaint utterly fails to allege a claim under the "negligent processing" rule in Jacques v. First National Bank of Maryland, 307 Md. 527, 515 A.2d 756 (1986), in that there is no allegation here of extraordinary circumstances (such as those in Jacques involving purchase of a personal residence). Rather, this was *678 merely a commercial financing arrangement between a bank and its sophisticated business customer, in which no Jacques duty inhered. See e.g., G & M Oil Co. v. Glenfed Financial Corp., 782 F.Supp. 1085, 1089 (D.Md.1991); Flow Ind., Inc. v. Fields Constr. Co., 683 F.Supp. 527, 530 (D.Md.1988).
Count VI, claiming for breach of fiduciary duty, is also meritless. The complaint fails to allege the degree of "takeover" that warrants imposition of a fiduciary duty on a lender either under Maryland's interpretation of her own law, see Parker v. Columbia Bank, supra, 91 Md. App. at 369-70, 604 A.2d 521, or under the Fourth Circuit's interpretation of the general law in the field, see NCNB v. National Bank v. Tiller, 814 F.2d 931, 936 (4th Cir. 1987), overruled on other grounds, 896 F.2d 833, 841 n. 8 (4th Cir.1990). Here, the complaint simply alleges measures taken by MNB to help keep the debtor afloat and to protect its own interests. The law does not require the lender to refrain from such exercise of prudence at the risk of becoming a fiduciary "big brother" to its customer. See, e.g., James E. McFadden, Inc. v. Baltimore Contractors, Inc., 609 F.Supp. 1102 (E.D.Pa.1985).
Count VII, in which the plaintiff attempts to assert a claim for violation of the Equal Credit Opportunity Act, 15 U.S.C. § 1691(d)(1) (ECOA), also fails, because plaintiff has not alleged a necessary predicate for such liability, viz., its submission of a "completed application" under 12 C.F.R. § 202.1(f). In its opposition, plaintiff admits never having submitted a "formal application," but argues that the defendant bank was supplied with "additional information in the forms of letters and documents." Under the plain language of the regulation, ECOA liability cannot rest upon anything but a "completed application," and Count VII does not state that a "completed application" was ever submitted. Of course, the complaint here, filed as it was in state court, was not subject to Fed.R.Civ.P. 11 when filed, see Fed. R.Civ.P. 81(c), but the Court is quite sure that, mindful of Maryland Rule 1-311(b), the plaintiff would not have alleged that it had submitted a "completed application" unless it had, beforehand, undertaken a factual and legal review to assure itself that what it submitted in fact had amounted to Maryland National's requirement for a "completed application" as defined in the pertinent regulation. Plaintiff did not so allege. Certainly, in any attempt to amend at this juncture, the strictures of Federal Civil Rule 11 would clearly require that the appropriate legal and factual investigation be carried out before the amendment could be made. But, as it stands, Count VII is fatally defective, as it was in the state court when filed.
Count VIII, the RICO claim, is facially defective under settled law of this Circuit, primarily for its failure to show the requisite pattern and continuity for a RICO claim in this Circuit. See Menasco, Inc. v. Wasserman, 886 F.2d 681 (4th Cir.1989). This case involves but one alleged wrongdoer, but one alleged victim, but one transaction, and, most of all, no racketeering enterprise. See, e.g., Benard v. Hoff, 727 F.Supp. 211, 214 (D.Md.1989); United States v. Tillett, 763 F.2d 628, 631 (4th Cir.1985). Thus, although plaintiff has indicated a willingness voluntarily to dismiss Count VIII, the Court will dismiss it under Rule 12(b)(6) for failure to state a claim.
In short, despite the prolix accusations of the complaint, it only can be reasonably read as showing: that the plaintiff, a commercial venture run by a sophisticated businessman, was lent money by the defendant MNB; that money was not enough  in the plaintiff's opinion  to fund its ventures; that the defendant MNB watched out for its own commercial interests by monitoring the plaintiff and suggesting fiscal improvements; and that the plaintiff's ventures failed. This is precisely the kind of meritless dispute between lender and defaulting commercial borrower that the courts, in the cases cited hereinabove and a legion of others, have been quick to put to rest, as this Court will do here.
For the reasons stated, an order will be entered separately, granting the defendants' motion, and dismissing all counts of *679 the complaint for failure to state a claim upon which relief can be granted. Fed. R.Civ.P. 12(b)(6).

ORDER
For the reasons stated in a Memorandum Opinion entered this date, it is, by the Court, this 13th day of January, 1993, ORDERED:
1. That the defendants' motion to dismiss BE, and it hereby IS, GRANTED;
2. That the complaint herein BE, and it hereby IS, DISMISSED, for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6); and
3. That the Clerk mail copies hereof to counsel.


Colorado Supreme Court Opinions || June 1, 2015

Colorado Supreme Court -- June 1, 2015
2015 CO 37. Nos. 11SC554 & 11SC868. Wilson v. People; Beaty v, People.

The Supreme Court of the State of Colorado
	2 East 14th Avenue â¢ Denver, Colorado 80203

2015 CO 37

Supreme Court Case No. 11SC554
Certiorari to the Colorado Court of Appeals
	Court of Appeals Case No. 09CA1073

Petitioner:
	Douglas E. Wilson,
	v.
Respondent:
	The People of the State of Colorado.

Judgment Affirmed
en banc

	June 1, 2015

Attorney for Petitioner:
	Alison Ruttenberg

Boulder, Colorado

Attorneys for Respondent:
	Cynthia H. Coffman, Attorney General
	Patricia R. Van Horn, Senior Assistant Attorney General

Denver, Colorado

	Â

	* * * * *

Supreme Court Case No. 11SC868
Certiorari to the Colorado Court of Appeals
		Court of Appeals Case No. 10CA742

Petitioner:
		William Beaty,
		v.
Respondent:
		The People of the State of Colorado.

Judgment Affirmed
en banc

		June 1, 2015

Attorneys for Petitioner:
		Benezra & Culver, P.C.
		Seth J. Benezra

Lakewood, Colorado

Attorneys for Respondent:
		Cynthia H. Coffman, Attorney General
		Ryan A. Crane, Assistant Attorney General

Denver, Colorado

CHIEF JUSTICE RICE delivered the Opinion of the Court.
		Â

		Â¶1Â Â Â Â Â Â Â We consider whether to adopt, pursuant to the United States Supreme Courtâs decision in Indiana v. Edwards, 554 U.S. 164 (2008), a new competency standard for mentally ill defendants who wish to waive the Sixth Amendment right to counsel. Pursuant to our holding today in People v. Davis, 2015 CO 36, Â¶ 1, __ P.3d __, we decline to create such a standard because Coloradoâs existing two-part framework for determining whether a defendant has validly waived the right to counsel affords trial courts sufficient discretion to consider a defendantâs mental illness. As such, we affirm the court of appealsâ decisions to retain the existing analytical framework in both PeopleÂ  v. Wilson, No. 09CA1073, 2011 WL 2474295, __ P.3d __ (Colo. App. June 23, 2011), and People v. Beaty, No. 10CA742 (Colo. App. Oct. 27, 2011) (unpublished).1

I. Facts and Procedural History

A. Wilson

		Â¶2Â Â Â Â Â Â Â The State charged Petitioner Douglas E. Wilson with first degree murder in 2001. The trial court appointed a public defender to represent Wilson. Citing a conflict of interest, Wilson insisted upon new representation. The trial court held a hearing on Wilsonâs conflict claim and determined that Wilson either had to keep the same lawyer or represent himself. The trial court advised Wilson about the dangers of representing himself pursuant to People v. Arguello, 772 P.2d 87 (Colo. 1989). Wilson opted to represent himself with assistance from advisory counsel.

	Â¶3Â Â Â Â Â Â Â A few months later, Wilson appeared confused and argumentative during a hearing before the trial court. As a result of this behavior, the trial court ordered Wilson to undergo a competency evaluation. The evaluating physician determined that Wilson was competent. The trial court found Wilson competent to stand trial based on this evaluation.

		Â¶4Â Â Â Â Â Â Â Wilson went through two more attorneys and two more Arguello advisements before the trial court determined that Wilson knowingly, voluntarily, and intelligently waived his right to counsel. Six days before trial, Wilson alleged that he was no longer competent to stand trial and demanded a second competency evaluation. The evaluating physician deemed Wilson incompetent because the jail had stopped giving Wilson one of his medications. Wilson began receiving the medication soon after the evaluation. A doctor determined that Wilsonâs competence had been restored about three months later. Wilson continued to represent himself in pretrial proceedings.

		Â¶5Â Â Â Â Â Â Â The trial court conducted another competency hearing after Wilson alleged that he was not receiving his medication properly in jail. After disagreeing with Wilsonâs allegations, the trial court informed Wilson that he could either represent himself at trial or waive his speedy trial rights and have an attorney appointed to represent him. Wilson chose not to waive speedy trial and continued to represent himself. At trial, Wilson received limited help from an investigator and from advisory counsel. A jury found Wilson guilty of first degree murder.

		Â¶6Â Â Â Â Â Â Â Wilson appealed his conviction through counsel. The court of appeals affirmed the conviction. People v. Wilson, No. 05CA189 (Colo. App. Feb. 14, 2008)Â (unpublished). Wilson then filed two Rule 35(c) motions with the trial court, one through counsel and one pro se. The trial court denied the motions because the record contradicted Wilsonâs claims of ineffective assistance of counsel. The court of appeals affirmed after deciding not to adopt a new standard under Edwards. Wilson, 2011 WL 2474295, at *8. We granted certiorari review of the Edwards question.

B. Beaty

		Â¶7Â Â Â Â Â Â Â The People charged Petitioner William Beaty with assault, criminal mischief, tampering with a victim or witness, and intimidating a victim or witness. The trial court appointed a public defender to represent Beaty in the case. A few months later, Beaty stopped communicating with his lawyer and filed a pro se motion to dismiss the public defender and appoint new counsel.

		Â¶8During a hearing on the motion, the trial court encouraged Beaty to resume communications with the public defender and told Beaty that the court would not appoint alternate defense counsel. As a result, Beaty informed the trial court that he would represent himself. The trial court strongly discouraged Beaty from proceeding pro se, appointed advisory counsel to discuss the dangers of self-representation with Beaty, and continued the hearing.

		Â¶9Â Â Â Â Â Â Â When the hearing reconvened a week later, the trial court advised Beaty pursuant to Arguello. Following this advisement, Beaty decided not to represent himself and, instead, accepted representation by the public defender. Beaty stated that his original decision to proceed pro se was animated by his failure to take hisÂ psychiatric medication to control bipolar disorder and schizophrenia. The trial court reappointed the public defender.

		Â¶10Â Â Â Â Â Â Â The public defender subsequently asked the trial court to order Beaty to submit to a mental health evaluation. After the evaluation, the public defender informed the trial court that the evaluationâs results âsquelched all fears with regards to [Beatyâs] competency and/or sanity.â

		Â¶11Â Â Â Â Â Â Â On the first day of the trial, Beaty expressed a renewed desire to represent himself because he disagreed with the public defenderâs case strategy. The trial court advised Beaty again pursuant to Arguello and verified that Beaty was taking his medication. Beaty reiterated his desire to waive counsel, and the trial court granted the request. Beaty represented himself throughout the trial. The jury found him guilty of all charges.

		Â¶12Â Â Â Â Â Â Â Beaty appealed his convictions, arguing that he was not competent to waive his right to counsel. The court of appeals disagreed with Beaty and affirmed the convictions. Citing its decision in Wilson and the United States Supreme Courtâs decision in Edwards, the court of appeals concluded that the trial court properly exercised its discretion when it allowed Beaty to waive his right to counsel. Beaty, slip op. at 5â10. The court of appeals did not specifically analyze whether to adopt a new standard of competence for mentally ill defendants pursuant to Edwards. Beaty petitioned this court for certiorari review of the court of appealsâ opinion.Â

	Â¶13Â Â Â Â Â Â Â We granted certiorari to determine whether to adopt a new competency standard for mentally ill defendants in light of Edwards.2

II. Colorado Law Does Not Require an Edwards Standard

	Â¶14Â Â Â Â Â Â Â Today we hold in Davis, Â¶ 1, that the existing two-part totality-of-the-circumstances analysis to determine whether a defendant has validly waived the right to counsel affords trial courts sufficient discretion to consider a defendantâs mental illness. This framework properly balances a defendantâs Sixth Amendment right to self-representation with the right to a fair trial as contemplated by the Supreme Court in Edwards. We therefore need not adopt an additional standard for determining whether a defendant is competent to waive the right to counsel.

	Â¶15Â Â Â Â Â Â Â We accordingly affirm the judgments of the court of appeals in both Wilson and Beaty because the court of appeals refrained from adopting a new standard pursuant to Edwards in those cases.

	1 We granted certiorari to review the following issue: Whether, pursuant to Indiana v. Edwards, 554 U.S. 164 (2008), this court should adopt a standard of competency for pro se representation different than that established in Dusky v. United States, 362 U.S. 402 (1960).

	2 Beaty also petitioned this court to review the question of whether the trial court substantially complied with Arguello when it advised Beaty of the dangers of self-representation. Although we initially granted certiorari on that issue, we deny it today as improvidently granted.
These opinions are not final. They may be modified, changed or withdrawn in accordance with Rules 40 and 49 of the Colorado Appellate Rules. Changes to or modifications of these opinions resulting from any action taken by the Court of Appeals or the Supreme Court are not incorporated here.

Colorado Supreme Court Opinions || June 1, 2015

Back