666 F.2d 241
McCoy JAMERSON, Petitioner-Appellant,v.W. J. ESTELLE, Jr., Director, Texas Department ofCorrections, Respondent-Appellee.
No. 80-1683.
United States Court of Appeals,Fifth Circuit.
Unit A*Jan. 25, 1982.

Sharon Garner, c/o Vinson & Elkins, Houston, Tex., for petitioner-appellant.
Mark White, Atty. Gen., Leslie A. Benitez, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before WISDOM, GEE and POLITZ, Circuit Judges.
POLITZ, Circuit Judge:

1
On February 6, 1970, McCoy Jamerson was arrested in Grand Prairie, Texas, for public drinking and illegal parking.  Two days later, after being informed of his Miranda rights,1 Jamerson confessed to a January 20, 1970 Pantego, Texas, service station robbery, during which his accomplice murdered the attendant.  On March 17, 1970, a Texas grand jury indicted Jamerson for this armed robbery.

2
In April of 1971, Jamerson was tried and convicted of an unrelated homicide and sentenced to death.2 The Texas statute prescribing the death penalty was declared unconstitutional by the Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).  Subsequently, on February 15, 1974, Jamerson's sentence was commuted to life by the Governor of Texas.

3
No steps were taken to further the prosecution of the indictment for the Pantego armed robbery until 10 months after the Supreme Court nullified the Texas death penalty.  On June 5, 1973, counsel was appointed to represent Jamerson on the armed robbery charge.  The case was tried in November of 1973, ending in a mistrial resulting from a hung jury.  The re-trial of the armed robbery charge ended on March 19, 1974, with a verdict of guilty and assessment of a sentence of 50 years imprisonment.  On November 5, 1975, this conviction was affirmed by the Texas Court of Criminal Appeals, which subsequently refused to grant habeas relief.  The instant application for federal habeas relief under 28 U.S.C. § 2254 was denied by the district court.  We affirm.

4
On appeal, Jamerson claims four errors: (1) denial of his sixth amendment right to a speedy trial; (2) denial of due process by the cumulation of sentences; (3) denial of constitutional rights because of the delay between his indictment and service of that indictment; and (4) use of an unconstitutionally obtained confession.

I. RIGHT TO A SPEEDY TRIAL

5
Between the indictment and trial on the armed robbery charge 44 months elapsed.  We must determine whether this delay violated Jamerson's sixth amendment right to a speedy trial by applying the standard articulated by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).  Recently, in United States v. Greer, 655 F.2d 51, 52 (5th Cir. 1981), we summarized the tetrad standard against which we must measure the elusive speedy trial guarantee: "(1) duration; (2) reason for the delay; (3) defendant's assertion of the right; and (4) prejudice caused by the delay."  No single factor is determinative in the analysis; they "must be considered together with such other circumstances as may be relevant."  407 U.S. at 533, 92 S.Ct. at 2193.

6
As a threshold consideration, the length of the delay must be examined and found to be "presumptively prejudicial."  Otherwise, inquiry into the other considerations is unnecessary.  See United States v. Walters, 591 F.2d 1195 (5th Cir. 1979), cert. denied, 442 U.S. 945, 99 S.Ct. 2892, 61 L.Ed.2d 317 (1980); United States v. Wentland, 582 F.2d 1022 (5th Cir. 1978), cert. denied, 439 U.S. 1133, 99 S.Ct. 1056, 59 L.Ed.2d 96 (1979); United States v. Edwards, 577 F.2d 883 (5th Cir.), cert. denied, 439 U.S. 968, 99 S.Ct. 458, 58 L.Ed.2d 427 (1978).  The 44 month period in the instant case is almost triple the 15 month delay decreed presumptively prejudicial in United States v. Avalos, 541 F.2d 1100 (5th Cir. 1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363 (1977).  With the threshold consideration satisfied, we turn our attention to the reasons for the lengthy, presumptively prejudicial, delay.

7
From April 22, 1971 until February 15, 1974, Jamerson was under a death sentence.  Texas argues that the existence of this death sentence provides a legitimate, justifiable reason for the post-indictment delay presently in question.  The contention is manifestly well-founded.  In Turner v. Estelle, 515 F.2d 853 (5th Cir. 1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1431, 47 L.Ed.2d 361 (1976), we recognized that conservation of prosecutorial and judicial resources is a valid ground for a post-indictment delay and noted that: "Texas' position is that it justifiably chose not to expend scarce judicial and prosecutorial resources in trying a defendant facing a death sentence, the execution of which would have eliminated the need for any trial at all."  515 F.2d at 856.  We found this reasoning to be compelling in Turner.

8
The case before us presents a situation closely akin to the factual circumstance in Turner.  After Jamerson was indicted for armed robbery, he was convicted of murder and sentenced to death.  The validity of this sentence was put into question by the Furman decision of the United States Supreme Court in June, 1972.  Afterwards, the sentence was commuted to life.  In the meantime, when the likelihood of commutation became apparent, the Texas authorities proceeded with the prosecution of the robbery indictment.  Sixteen months elapsed between the Furman decision and the trial on the robbery charge.

9
We believe it appropriate to examine the 44 months in discrete parts.  The failure to prosecute from the time of indictment until Furman was announced is entirely excusable.  During that time Jamerson was incarcerated under a sentence of death.  The sixth amendment does not require that he be brought to trial for a non-capital offense during that period.

10
Moreover, the Texas prosecutorial authorities refer to the uncertainty inherent in Jamerson's position until the actual commuting of his sentence.  Although we do not accept as reasonable total inaction until the formal commutation, the record reflects that the Texas authorities began prosecutorial steps.  Jamerson was brought to trial prior to the commutation order.  Hence, the period of delay alone does not suffice to justify overturning the conviction.3  In striking the appropriate sixth amendment balance, we must examine the third and fourth Barker v. Wingo elements.

11
The third factor outlined in Barker v. Wingo concerns the defendant's action or inaction in asserting the speedy trial right.  In June, 1973 counsel was appointed to aid Jamerson in his defense of the armed robbery charge.  Neither Jamerson nor his counsel complained of delay until November 12, 1973, the day the trial began.  Considering all of the circumstances, the district court, in adopting the federal magistrate's report, assigned a neutral value to this inaction.  We consider significant the fact that neither Jamerson nor his attorney pressed for a swifter trial.

12
The fourth and final consideration in the Barker v. Wingo equation, prejudice, is "the most difficult to evaluate qualitatively and quantitatively."  United States v. Greer, 655 F.2d at 53.  In the analysis of the prejudice issue, we find valuable assistance in the Supreme Court's identification of three interests which are guarded by the right to a speedy trial: "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired."  407 U.S. at 532, 92 S.Ct. at 2193.

13
The first two interests are not applicable in the instant suit.  Jamerson was lawfully incarcerated under a death sentence during nearly all of the delay time.  Oppressive pretrial incarceration is not an issue.  Further, in view of the pending death sentence, an outstanding armed robbery indictment could occasion little additional anxiety or concern.

14
Only the third interest, impairment of a defense, raises a substantial question.  Following Jamerson's arrest in Grand Prairie on February 6, 1970, he confessed to the Pantego armed robbery and murder as well as other offenses.4  At his trials, the principal prosecution witnesses were Marvin Stapleton, Chief of Police, Pantego, Texas, and Donald Sherman, Grand Prairie police department, whose recall of the events surrounding Jamerson's arrest and confession were at times spotty.5  The lapse of witnesses' memories may impair a defendant's ability to present his defense.

15
However, while "faded memory may result in prejudice, we have held that in order to prejudice the defense to the extent necessary to constitute a speedy trial violation, the faded memory must substantially relate to a material fact in issue."  United States v. Edwards, 577 F.2d 883, 889 (5th Cir.), cert. denied, 439 U.S. 968, 99 S.Ct. 458, 58 L.Ed.2d 427 (1978).  See United States v. Avalos, 541 F.2d 1110 (5th Cir. 1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363 (1977).  Jamerson has made no affirmative showing how the lapse of memory by the prosecution's witnesses impaired the presentation of his defense.  We cannot raise speculation or mere conclusional observations regarding a witness' memory to the level of constitutional prejudice.  Jamerson has failed to demonstrate sufficient prejudice resulting from the post-indictment delay to obtain relief under the Barker v. Wingo rubric.

II. CUMULATIVE SENTENCE ORDER

16
At the conclusion of Jamerson's state court armed robbery trial, the court assessed a 50 year sentence and stated:

17
the sentence in this cause shall commence when the Judgment and sentence in Cause No. C-70-1351-KL for the offense of murder received in Dallas County, Texas, and the Punishment of Death, commutted to Life, received on April 22, 1971, has ceased to operate.

18
Eighteen months later the court entered a nunc pro tunc order which included the number of the Dallas court in which Jamerson had been found guilty of murder.  Jamerson contends that the failure to designate the court number in which he was convicted of murder renders the cumulative order void, an error that was not cured by the nunc pro tunc entry.  In addition, Jamerson argues that the sentencing omission was so grave as to deny him due process and fundamental fairness.

19
We are not persuaded that the omission of the number of the court, in the context presented, even approaches the deprivation of a fundamentally fair proceeding.  This allegation is devoid of merit.  At most, an error of state procedure occurred which is not subject to examination in a federal habeas proceeding.  See Hall v. Wainwright, 493 F.2d 37 (5th Cir. 1974); Pringle v. Beto, 424 F.2d 515 (5th Cir. 1970).

III. DELAY IN SERVICE OF THE INDICTMENT

20
Jamerson's indictment was handed up on March 17, 1970.  It was not served until May 21, 1973.  The delay of over three years is prohibited by Texas law.6  Against this backdrop, Jamerson attempts to convert the service failure into a denial of due process.

21
Although Jamerson was entitled to prompt service of the felony indictment, this right emanated from the Texas Code of Criminal Procedure and not from the United States Constitution.  A denial of a constitutional right must be shown for federal habeas corpus relief to be available.7

22
In determining whether the delay in informing Jamerson of his felony indictment reaches constitutional proportions we consider analogous the methodology for analyzing the sixth amendment speedy trial right.  Employing the same balancing considerations discussed above, we reach the same conclusion that Jamerson's guarantee of a fundamentally fair proceeding was not denied by the lapse of time from the indictment's return until its service.

IV. THE CONCLUSION

23
Jamerson's final contention is that his confession should not have been admitted.  He challenges the confession on two grounds: he was not brought before a magistrate timely, and the confession was not freely and voluntarily given.

24
The issues surrounding the confession were presented to the Texas trial court, out of the hearing of the jury and before the confession was introduced in evidence.  Evidence was adduced; Jamerson testified.  The state trial judge considered the evidence and ruled that the confession was made freely and voluntarily, within the bounds of the constitutional requirements.  "In a federal habeas corpus proceeding there is a presumption of correctness that is attached to a state court's fact-findings after a hearing has occurred on the merits of the factual issue."  Thomas v. Estelle, 582 F.2d 939, 941 (5th Cir. 1978).  Jamerson has failed to carry the burden of overcoming the presumption of correctness that attached to the state trial judge's conclusion that his confession was legally obtained.

25
The judgment of the district court is AFFIRMED.

*
 Former Fifth Circuit case, Section 9(1) of Public Law 96-452-October 14, 1980

1
 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

2
 Jamerson was convicted of the robbery-murder of a female service station attendant in Irving, Texas on February 4, 1970.  The victim had been shot four times in the back.  Jamerson confessed to this murder and confessed his participation in the Pantego robbery-murder as well as a murder in Grand Prairie on February 4, 1970 and a robbery in Grand Prairie on February 3, 1970.  His murder conviction was reversed because of the admission of evidence of extraneous offenses in Jamerson v. State, 550 S.W.2d 287 (Tex.Cr.App.1977)

3
 "Closely related to the length of delay is the reason the government assigns to justify the delay."  Hill v. Wainwright, 617 F.2d 375, 378 (5th Cir. 1980)

4
 See note 2, supra

5
 Specifically, Jamerson asserts six topics which were not fully explored due to witnesses' memory loss: (1) whether, immediately upon arriving at the police station, Stapleton saw him; (2) whether his clothes were crumpled and wrinkled at the time the confession was signed; (3) whether he was alone in his cell; (4) whether marks were visible on his face when he signed the written confession; (5) the identity of the person who typed the statement; and (6) the identity of the witness who reported the criminal incident

6
 Tex.Crim.Pro.Code Ann. art. 25.01 (Vernon):
In every case of felony, when the accused is in custody, or as soon as he may be arrested, the Clerk of the Court where an indictment has been presented shall immediately make a certified copy of the same, and deliver such copy to the Sheriff, together with a writ directed to such Sheriff, commanding him forthwith to deliver such certified copy to the accused.

7
 "Assuming that the allegations of the petition are true, we need not reach the merits of this issue since it is clear that no violation of the constitutional rights of petitioner has been alleged.  Hence the claim is not cognizable under 28 U.S.C.A. § 2254 and was properly denied."  Johnston v. Estelle, 548 F.2d 1238, 1239 (5th Cir.), cert. denied, 434 U.S. 850, 98 S.Ct. 161, 54 L.Ed.2d 118 (1977) (citing Willeford v. Estelle, 538 F.2d 1194 (5th Cir. 1976); Bell v. Estelle, 525 F.2d 656 (5th Cir. 1976); Pringle v. Beto, 424 F.2d 515 (5th Cir. 1970))


418 B.R. 682 (2009)
Carlyle M. JOHNSON, Executor of the Estate of Nancy S. Johnson, Plaintiff-Appellant,
v.
J. Wesley JOHNSON, III and Johnson Enterprises of North Carolina, Inc., Defendants-Appellees.
No. 5:09-CV-119-BO.
United States District Court, E.D. North Carolina, Western Division.
November 2, 2009.
*683 Kieran J. Shanahan, Melissa Lynn Pulliam, Shanahan Law`Group, Raleigh, NC, for Appellant.
Gary J. Rickner, Ward and Smith, P.A., Jason L. Hendren, Brady, Nordgren, Morton & Malone, PLLC, Raleigh, NC, for Appellees.

ORDER
TERRENCE W. BOYLE, District Judge.
This matter is before the Court on an appeal by the Carlyle Johnson, executor of the estate of Nancy Johnson, of an order by the United States Bankruptcy Court for the Eastern District of North Carolina. For the following reasons, the judgment of the Bankruptcy Court is REVERSED and the matter is REMANDED for further proceedings consistent with this opinion.

INTRODUCTION
Johnson Enterprises of North Carolina, Inc. ("JENC") is a closely held corporation organized under the laws of the state of North Carolina with its principal office in Raleigh, North Carolina. JENC operates three children's day care centers in Raleigh, North Carolina, through its ownership of Primary Beginnings, LLC. JENC also owns and leases certain real property in Wake County, North Carolina, to another children's day care center, Knowledge Learning Corporation. JENC is a family *684 owned business that is the successor in interest to Clay Printing Company Incorporated. The business was operated by J. Wesley Johnson, II until his death in 1985. J. Wesley Johnson, III, Katherin (Johnson) Cabaniss, and Carlyle Johnson are the children of Nancy Johnson and her late husband, J. Wesley Johnson, II. After the death of J. Wesley Johnson, II, the stock of JENC was owned as follows: Nancy Johnson, 139 shares; Wesley Johnson, III, 34 shares; Katherine Cabaniss; 34 shares; and Carlyle Johnson, 34 shares. Wesley Johnson, III, has served as president of JENC since 1989.
In June, 2005, Nancy Johnson and Wesley Johnson, III entered into a stock transfer transaction in which Nancy Johnson transferred 120 shares of JENC stock to Wesley Johnson, III in exchange for his promise to purchase a home and a car for her and to pay for utilities for the home and gas for the car. Nancy Johnson subsequently decided that she wished to retain one share of JENC stock and subsequently executed an assignment transferring all but one share of her stock, 119 shares, to Wesley Johnson, III, and a "Stock Power" document confirming her ownership of one share of JENC stock.
On June 19, 2007, Nancy Johnson filed a complaint against Wesley Johnson, III in the Wake County Superior Court. The complaint asserted four claims for relief: (1) cancellation and rescission of the stock transfer agreement; (2) breach of fiduciary duty; (3) fraud in the inducement; and (4) unfair and deceptive trade practices. Nancy Johnson died on October 31, 2007, and Carlyle Johnson was named the Executor of Nancy Johnson's estate. On February 19, 2008, Carlyle Johnson filed an amended complaint against both Wesley Johnson, III and JENC adding the claims of (1) breach of contract against Wesley Johnson, III; (2) breach of contract against JENC; and (3) conversion against Wesley Johnson, III.
On March 3, 2008, JENC filed a voluntary petition for bankruptcy under `Chapter 11 and Wesley Johnson, III subsequently filed a Chapter 11 petition on May 28, 2008. This case was removed by Carlyle Johnson to Bankruptcy Court as an adversarial proceeding on September 17, 2008. Trial was set for December 17, 2008 and limited to the issue of the ownership of the JENC stock transferred by Nancy Johnson to Wesley Johnson, III. The Bankruptcy Court found that the agreement was vague, that Nancy Johnson was incapacitated by intoxication on the day that the stock transaction occurred and without assistance of counsel, and that Nancy Johnson ratified the agreement during a period of sobriety following the transaction. The Bankruptcy Court enforced the stock transfer agreement and granted the estate of Nancy Johnson the equitable remedy of five hundred thousand dollars, the value of a nice house in Fearrington and a nice car, secured by the JENC stock held by Wesley Johnson, III.
Carlyle Johnson has appealed the Bankruptcy Court's ruling to this Court. He contends that the Bankruptcy Court erred in granting equitable relief rather than rescinding the stock transfer agreement.

JURISDICTION AND STANDARD OF REVIEW
Jurisdiction over this appeal is proper pursuant to 28 U.S.C. § 158. A bankruptcy court's findings of fact shall not be set aside unless clearly erroneous. In re Bryson Properties, XVIII, 961 F.2d 496, 499 (4th Cir.1992). Conclusions of law are reviewed de novo. In re Apex Express Corp., 190 F.3d 624, 630 (4th Cir.1999); Continental Casualty Co. v. York, 205 B.R. 759, 762 (E.D.N.C.1997).

*685 DISCUSSION

The issue presented on appeal is whether the Bankruptcy Court erred in enforcing the stock transfer agreement between Wesley Johnson, III, and Nancy Johnson for the transfer 119 shares of stock in JENC. Appellant contends that the Bankruptcy Court erred in enforcing the agreement because the agreement was too vague to constitute a valid contract and Nancy Johnson was intoxicated at the time of execution did not ratify the agreement upon becoming sober.
Whether a contract is sufficiently definite so as to be enforceable is a conclusion of law subject to de novo review. See In re Campbell, 812 F.2d 1465, 1467 (4th Cir.1987); Seabulk Offshore Ltd. v. American Home Assurance Co., 377 F.3d 408, 418 (4th Cir.2004). ("The interpretation of a written contract is a question of law that turns upon a reading of the document itself). This Court concludes that no contract existed between the parties and, as such, the Bankruptcy Court erred in enforcing the stock transfer agreement.
This Court agrees with the Bankruptcy Court's conclusion that "The terms of the transaction are vague." No valid contract exists where an agreement is so vague that no definite terms can be ascertained. Thompson-McLean, Inc. v. Campbell, 261 N.C. 310, 134 S.E.2d 671 (1964). In order to "constitute a valid contract, the terms of the contract require sufficient certainty and specificity with regard to material terms." Jackson v. Jackson, 169 N.C.App. 46, 48, 610 S.E.2d 731, 732-33 (1992), rev'd on other grounds 360 N.C. 56, 620 S.E.2d 862 (2005). "Vagueness of expression, indefiniteness and uncertainty as to any of the essential terms of an agreement, have often been held to prevent the creation of an enforceable contract." Corbin on Contracts, § 4.1 (1993). "If no method is agreed upon for rendering this subject matter sufficiently definite for enforcement, the agreement must nearly always fail for legal effect. It is not customary for courts to fill the gap by finding that a `reasonable' amount of goods or land or labor has been agreed upon as the exchange of money." Id. at § 4.6. Moreover, a contract that leaves material provisions open for future agreement is void for indefiniteness as a matter of law. Miller v. Rose, 138 N.C.App. 582, 532 S.E.2d 228 (2000).
Appellee cites Chew v. Leonard in support of the contention that "the courts will if possible so construe the contract as to carry into effect the reasonable intent of the parties, if it can be ascertained." 228 N.C. 181, 185, 44 S.E.2d 869, 872 (1947). But the writings that make up the agreement and the surrounding circumstances here are insufficient to demonstrate the intent of the parties.
With respect to the home, the various writings state that Nancy Johnson shall receive "a home on Fearrington Village," or alternatively, "a home in Fearrington Village or elsewhere." The agreement here is insufficient because it provides no guidance that would allow the court to determine the type of home to be purchased or any particulars about the home such as price, lot size, or location. See Marshall & Ilsley Bank v. Schuerbrock, 195 Wis. 203, 217 N.W. 416, 421 (1928) (contract to "purchase a home" where the specifics of such a home were not set forth was insufficient to create a binding contract); Trammell v. Morgan, 158 N.E.2d 541 (Ohio Ct.App.1957) (contract to "purchase a home . . . suitable for his family, at a fair price" was held to be too indefinite to enforce); Offeman v. Robertson-Cole Studios, 80 Cal.App. 1, 251 P. 830, 834 (1926) (contract to "supply me with a home here, a house, and furnish *686 it" was "too indefinite and uncertain."). Rather, the writings here merely offer the suggestion that the home would be located in Fearrington Village while leaving open the possibility that the home could be located anywhere in the world. And even assuming that the agreement was limited to Fearrington Village, substantial uncertainty remains because the Fearrington Village development includes town homes, free-standing, and homes in a retirement community ranging in price from $161,000 to $435,000. As such, the agreement between Nancy Johnson and Wesley Johnson, III was insufficiently definite to create a binding contract.
With respect to the obligation to provide an automobile, the stock transfer agreement states that Nancy Johnson is entitled to "an automobile to be title in a name(s) per Nancy S. Johnson's request." Tr. Ex. 14. Appellee relies on Goodyear v. Goodyear where the Court found the promise to buy a "new automobile" enforceable where the promisee was aware of the promisor's financial status, which in theory put a limit on the cost of the "new automobile." Goodyear v. Goodyear, 257 N.C. 374, 379, 126 S.E.2d 113, 117 (1962). But not even the minimal level of specificity required by Goodyear is present here. The stock transfer agreement does not specify that the automobile would be used or new and contains no indicia of the amount that Wesley Johnson, III was obligated to spend on the automobile. And regardless of the agreement's specificity regarding the obligation to provide an automobile, the obligation to provide a home, a far more significant portion of the purported consideration, is sufficiently vague to render the contract invalid.
Finally, the writings promise that Wesley Johnson, III will provide gas for the car and utilities for the home. In light of the vagueness surrounding the obligations to provide a home and an automobile, an obligation to provide utilities for a home and gas for a car cannot salvage the agreement. It should also be noted that the parties did not interpret even this seemingly straightforward clause as written. Wesley Johnson, III testified before the Bankruptcy Court that he understood this clause as an obligation to take care of his mother for life. In North Carolina, a promise to "look after" or "support" someone is too vague to be enforceable. Lassiter v. Bank of N.C., 146 N.C.App. 264, 551 S.E.2d 920, 923-24 (2001); Pace v. Pace, 73 N.C. 119, 1875 WL 2792 at *6 (1875). In sum, the terms of the various writings comprising the stock transfer agreement are so vague and indefinite that no contract was formed between Nancy Johnson and Wesley Johnson, III for the transfer of the JENC stock.
The Bankruptcy Court erred in enforcing the agreement despite finding that the agreement was vague. In imposing an equitable remedy on the parties, the Bankruptcy Court sought to give effect to Nancy Johnson's intent, which the Court determined by relying on its assessment of her intent at the time of the contract and her failure to seek rescission within a reasonable time after becoming sober. But "[i]t is not enough that the parties think they have made a contract. They must have expressed their intentions in a manner that is capable of being understood. It is not even enough that they nave actually agreed, if their expressions, when interpreted in light of accompanying factors and circumstances, are not such that the court can determine what the terms of the agreement are." Corbin on Contracts § 4.1 (1993). Although Nancy Johnson may have had a very particular house and car in mind when she entered into the agreement, Wesley Johnson, III may have had a very different house and car in mind. *687 And as explained above, the writings that memorialized their intent when considered in light of the surrounding circumstances are so indefinite as to render the agreement unenforceable.
Neither does Nancy Johnson's ratification render the agreement effective. An agreement that is void ab initio because of vagueness cannot be ratified later. See Weathers et al. v. Borders et al., 121 N.C. 387, 387, 28 S.E. 524, 525 (1897). The Bankruptcy Court found that Nancy Johnson was incapacitated by intoxication at the time the agreement was entered and failed to seek rescission within a reasonable time upon becoming sober. But although Nancy Johnson may have given up her right to seek rescission based on her intoxication, an agreement rendered void by vagueness is not made enforceable by an intoxicated person's ratification upon becoming sober. Moreover, although Appellee contends that Nancy Johnson accepted benefits under the agreement, Wesley Johnson, III's ex post conduct would not satisfy even the most expansive reading of the terms of the agreement. Nancy Johnson was not provided with a fee simple interest in a home in Fearrington or elsewhere, but rather with a life estate in a condominium previously owned by Wesley Johnson, III with the remainder interest held by Wesley Johnson, III. And title to an automobile previously owned by Wesley Johnson, III was not transferred until, after Nancy Johnson filed suit seeking rescission.
Thus, the Bankruptcy Court erred in enforcing the stock transfer agreement and awarding Nancy. Johnson's estate the value of a nice house in Fearrington and a nice car secured by the JENC stock rather than rescinding the agreement. Accordingly, the estate of Nancy Johnson is entitled to rescission of the contract and to recover the 119 shares of JENC stock transferred to Wesley Johnson, III.

CONCLUSION
For the reasons stated above, the judgment of the Bankruptcy Court is hereby REVERSED. The estate of Nancy Johnson is entitled to rescission of the stock transfer agreement between Nancy Johnson and J. Wesley Johnson, III. As a result, the estate of Nancy Johnson is entitled to recover the 119 shares of Johnson Enterprises of North Carolina, Inc. stock transferred to J. Wesley Johnson, III. This matter is REMANDED to the Bankruptcy Court for further proceedings consistent with this order.
SO ORDERED.


948 F.2d 1297
U.S.v.Goode***
NO. 91-7150
United States Court of Appeals,Eleventh Circuit.
NOV 06, 1991

1
Appeal From:  S.D.Ala.

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  11th Cir.R. 34-3

**
 Local Rule 36 case


157 P.3d 788 (2007)
342 Or. 633
SNODGRASS
v.
LAMPERT.
No. S54676.
Supreme Court of Oregon.
April 10, 2007.
Petition for review denied.


293 F.3d 1254
Harold T. McCORMICK, Plaintiff-Appellee,v.H. Chaney ADERHOLT, Defendant-Appellant.
No. 01-13441.
United States Court of Appeals, Eleventh Circuit.
June 10, 2002.

Robert E. Cooper, Rives & Peterson, Deborah Alley Smith, Christian Small, LLP, Birmingham, AL, for Defendant-Appellant.
Charles A. Dauphin, Donald Randolph James, Jr., Baxley, Dilliard, Dauphin & McKnight, Birmingham, AL, for Plaintiff-Appellee.
Appeal from the United States District Court for the Northern District of Alabama.
Before CARNES and FAY, Circuit Judges, and HUNT*, District Judge.
PER CURIAM:

I. INTRODUCTION

1
This medical malpractice action was brought against Appellant, Dr. H. Chaney Aderholt ("Aderholt"), Dr. R.B. Kent, III, and Dr. Richard Stahl, asserting negligence in the treatment of plaintiff/appellee Harold T. McCormick ("Plaintiff/McCormick").1 The jury rendered a verdict in favor of the plaintiff, and the district court entered judgment in accordance with the verdict on April 23, 2001. The following issues are raised on appeal: (1) whether the district court erred in finding that the plaintiff was not a citizen of Alabama; (2) whether the district court erred in denying appellant's motion for judgment as a matter of law based upon the Alabama statute of limitations; and (3) whether the district court erred in its jury instruction on the Alabama statute of limitations.

2
After reviewing the record, the applicable law, and carefully considering the contentions raised, we affirm the judgment of the district court.

II. BACKGROUND

3
In October 1992, plaintiff McCormick was hospitalized in Panama City, Florida, after suffering from an episode of sudden shortness of breath and hemorrhagic pneumonia.2 McCormick then flew to Birmingham, Alabama, and was placed under the care of Dr. Ronald Stroud, his personal physician. Upon examining McCormick, Dr. Stroud determined that McCormick was suffering from blood clots in his left leg. Due to McCormick's history of deep venous thrombosis and prior pulmonary embolisms3 in the 1980's, Dr. Stroud, and surgeons Dr. Raleigh Kent and Dr. Richard Stahl, elected to have a Greenfield filter4 placed in McCormick. The filter was inserted in order to trap blood clots traveling from the lower extremities to the lungs and to prevent future pulmonary embolisms from occurring.

4
On December 29, 1992, the plaintiff underwent surgery for the placement of the filter at Carraway Methodist Medical Center in Birmingham. The device was placed in the plaintiff by Dr. Kent and Dr. Stahl. At the time of deployment, Dr. Kent noticed that the filter moved "inferiorly slightly" during placement. In order to confirm that the device was properly placed, an x-ray was taken. Dr. Stahl then took the x-ray to the radiology department and asked Dr. Aderholt to review it. Dr. Aderholt informed Dr. Stahl that the filter was in an acceptable position. In accordance with hospital procedures, the x-ray was reviewed by another radiologist, Dr. Kenneth Vanexan, who also stated in a written report that the filter was in an acceptable location.

5
In 1995, while in London, England, the plaintiff suffered from an infection resulting in pulmonary edema,5 requiring hospitalization. One of the physicians informed McCormick that he believed the incident was the result of a pulmonary embolism. However, upon the plaintiff's return to the United States, Dr. Stroud opined that he had probably not suffered a pulmonary embolism.

6
On March 20, 1998, while playing golf, the plaintiff suffered another incident of shortness of breath and pulmonary edema. Dr. Stroud characterized the episode as flash pulmonary edema,6 and treated McCormick with diuretics to help remove the fluid from his lungs. Dr. Stroud then transferred him to the intensive care unit. Upon transferring McCormick, Dr. Stroud requested a cardiologist consultation in order to determine the cause of the pulmonary edema. However, Dr. Stroud's final diagnosis was acute pulmonary edema of uncertain etiology.

7
Sometime later in 1998, the Greenfield filter occluded, causing the plaintiff's right leg to swell. On May 29, 1998, Dr. Stroud ordered a venagram7 of plaintiff's leg and pelvic region, in order to determine the cause of the swelling. The venagram revealed that the filter was not in the inferior vena cava, where it should have been deployed, but instead in the right iliac vein. The positioning of the device in the right iliac vein meant that there was nothing preventing clots from causing a pulmonary embolism.

8
On May 29, 1998, a second filter was properly placed in McCormick; that is, in his inferior vena cava above the original Greenfield filter. Thereafter, in September 1998, Dr. Stroud approached Dr. Semba, a surgeon performing surgeries in California through the use of miniaturized tools placed in a catheter in order to dilate blood vessels and break through clots, and discussed McCormick's medical condition with him. In an effort to correct McCormick's deep venous thrombus condition, Dr. Semba placed a stint across the occluded vein and filter in order to provide blood flow. Following this procedure, the plaintiff's condition improved.

III. DISCUSSION
A. DIVERSITY JURISDICTION

9
The first issue on appeal is whether the lower court erred in determining that the plaintiff was not a citizen of Alabama for purposes of diversity jurisdiction. This Court reviews the district court's findings regarding domicile under a clearly erroneous standard. See Scoggins v. Pollock, 727 F.2d 1025, 1027 (11th Cir.1984). We conclude that there is sufficient evidence in the record to support the district court's findings of diversity of citizenship.

10
Pursuant to 28 U.S.C. § 1332, plaintiff alleged diversity of citizenship as the basis of federal jurisdiction. See id. at 1026. The appellant counter argued that because both he and the plaintiff were citizens of Alabama, the district court lacked subject matter jurisdiction. We have held that the law is clear regarding a federal court's limited subject matter jurisdiction; specifically, we only have the authority to decide certain types of cases. See Smith v. GTE Corporation, 236 F.3d 1292, 1299 (11th Cir.2001) (citing Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1260-61 (11th Cir.2000)). Further, the party invoking the court's jurisdiction bears the burden of proving, by a preponderance of the evidence, facts supporting the existence of federal jurisdiction. See Scoggins 727 F.2d at 1026.

11
Diversity jurisdiction exists over a controversy between citizens of different states. See 28 U.S.C. § 1332(a). Citizenship is equivalent to "domicile" for purposes of diversity jurisdiction. See Hendry v. Masonite Corp., 455 F.2d 955, 955 (5th Cir.1972).8 "A person's domicile is the place of `his true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom....'" Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir.1974), cert. denied, 419 U.S. 842, 95 S.Ct. 74, 42 L.Ed.2d 70 (1974) (quoting Stine v. Moore, 213 F.2d 446, 448 (5th Cir.1954)). Furthermore, a change of domicile requires "[a] concurrent showing of (1) physical presence at the new location with (2) an intention to remain there indefinitely...." Id.

12
In making its findings, the district court looked at several specific factors. McCormick was the majority owner and chief executive officer of Bay Point Yacht and Country Club in Panama City, Florida. McCormick owned additional real property in Panama City. McCormick had a Florida driver's license, and was registered to vote in Bay County, Florida. In addition, he only paid Florida income taxes. The district court found that the plaintiff had a clear intent of being a Florida resident, despite the fact that his personal physician was located in Birmingham and that he and his wife may have owned property in Alabama, Florida, and England.

13
In light of the foregoing, we find that the district court did not err in finding that the plaintiff is and was at the time of filing suit, a resident citizen of Florida. Because McCormick's citizenship is diverse from Aderholt's, the district court properly exercised subject-matter jurisdiction over this case.

B. STATUTE OF LIMITATIONS

14
The second issue on appeal is whether the lower court erred in denying Appellant's motion for judgment as a matter of law based upon the Alabama statute of limitations. We review the denial of a motion for judgment as a matter of law de novo, applying the same standard as the district court. Lambert v. Fulton County, Georgia, 253 F.3d 588, 594 (11th Cir.2001). In applying this standard, this Court reviews the evidence in a light most favorable to the non-moving party, with all reasonable inferences drawn in his favor. See id. Further, this Court will not substitute its judgment for that of the jury, as long as the verdict is supported by sufficient evidence. See id. We conclude that this issue was properly submitted to the jury.9

15
The Alabama Medical Liability Act § 6-5-482(a), Ala.Code (1975), imposes a limitations period on all actions against physicians, surgeons, dentists, medical institutions, or other health care providers for negligence in the treatment of patients.10 The Supreme Court of Alabama specified in Mobile Infirmary v. Delchamps, 642 So.2d 954, 958 (Ala. 1994), that the limitations period of § 6-5-482 commences with the accrual of a cause of action. The court further stated that, for purposes of § 6-5-482, a cause of action "accrues" when the act complained of results in legal injury to the plaintiff. Id. However, when the wrongful act or omission and the legal injury do not occur simultaneously, the cause of action accrues and the limitations period commences when the legal injury occurs. See id.

16
In Delchamps, the plaintiff had temporomandibular implants surgically placed in her jaw on December 5, 1985. See id. at 955. Plaintiff Delchamps alleged that these implants proximately caused severe bone degeneration in her temporomandibular joints. See id. The defendant argued that the plaintiff's claims accrued on December 5, 1985, when the implants were surgically placed in the plaintiff's jaw, and not, as plaintiff argued, on December 10, 1991, when she discovered the injury from X-rays. See id. The Supreme Court of Alabama rejected this argument and concluded that a jury could find that the plaintiff not only discovered her injury within the two years before suit was filed, but that her legal injury also occurred within that time—perhaps, but not necessarily, at the time of her discovery. See id.

17
The Supreme Court of Alabama had stated earlier in Grabert v. Lightfoot, 571 So.2d 293, 294 (Ala. 1990), that a cause of action accrues when the act complained of results in injury to the plaintiff. This statement was, of course, predicated on the facts of that case. The plaintiff in Grabert was diagnosed as having a hernia in the left groin area. See id. at 293. On May 1, 1987, Dr. Lightfoot operated on Grabert, but was unable to locate or repair the hernia. See id. The plaintiff's symptoms continued and in June 1987, Dr. Lightfoot again informed the plaintiff that he did indeed have a hernia, and offered to perform another operation at no charge. See id. The plaintiff declined his offer but did have a Dr. Bourgeois perform the operation. See id. During the second operation on June 26, 1987, Dr. Bourgeois located the hernia; however, the procedure left the plaintiff impotent and unable to perform the type of work he had previously done. See id. Suit followed.

18
The defendant in Grabert argued that the limitations period began to run when the plaintiff had his first operation on May 1, 1987, not on June 26, 1987, the date of the second operation. See id. at 294. The court agreed with the defendant, holding that because the plaintiff was damaged by the first operation, the plaintiff suffered a legal injury on that date and the statute of limitations began to run at that time. The Grabert court, like the Delchamps court, held that the Alabama limitations period began to run when the plaintiff suffers a legal injury.

19
Turning to the case at bar, the defendant argues that McCormick's claim is barred by the statute of limitations because the act complained of took place on December 29, 1992, but the complaint was not filed until October 29, 1998. We disagree. On December 29, 1992, McCormick had an operation for the deployment of a Greenfield filter. The evidence shows that the device was improperly placed in the right iliac vein. The evidence, however, also permits a factfinding that McCormick suffered no legal injury until March 20, 1998, and that no one knew the filter had been improperly placed until the venagram was performed on May 29, 1998.

20
Given the law of Alabama as stated in Delchamps, that the accrual for a medical malpractice action occurs when there is a legal injury, this issue was properly submitted to the jury. The record contains evidence from which the jury could have found that plaintiff first suffered a legal injury within two years prior to filing suit. While in December 1992, Dr. Aderholt breached his duty of care, the plaintiff did not experience legal injury until March 20, 1998. Therefore, the district court did not err in denying appellant's motion for judgment as a matter of law.

C. JURY INSTRUCTIONS

21
The last issue on appeal is whether the district court's jury instruction regarding the Alabama statute of limitations was erroneous. This Court applies a deferential standard of review to a trial court's jury instructions. See Roberts & Schaefer Co. v. Hardaway Co., 152 F.3d 1283, 1295 (11th Cir.1998). If the trial judge's instructions accurately reflect the law, he or she is given wide discretion as to the style and wording employed in its instruction. See id. Further, under this standard, we examine "whether the jury charges, considered as a whole, sufficiently instructed the jury so that the jurors understood the issues and were not misled." Id. (citing Carter v. Decision One Corp., 122 F.3d 997, 1005 (11th Cir.1997)). We will only reverse the lower court because of an erroneous instruction if we are "left with a substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations." Id.

22
Appellant argues that the trial court erred in refusing to give a charge on the four year outside limit on the statute of limitations period. Section 6-5-482(a) states that, "... in no event may [an] action be commenced more than four years after such act ...," thus appearing to set an outside limit on the statute of limitations period. Appellant argues that the court's refusal to charge on the four year limitations period rendered the instructions erroneous and misleading, thus prejudicing the defendant.

23
We find that appellant's argument is without merit. The Alabama Supreme Court has treated Section 6-5-482(a) as a statute of limitations, and not a statute of repose. See Street v. City of Anniston, 381 So.2d 26, 30-31 (Ala.1980). As discussed in Delchamps, 642 So.2d at 958:

24
The limitations period of § 6-5-482 commences with the accrual of a cause of action. Street v. City of Anniston, 381 So.2d 26 (Ala.1980); Bowlin Horn v. Citizens Hosp., 425 So.2d 1065 (Ala.1982); Ramey v. Guyton, 394 So.2d 2 (Ala.1980). A cause of action "accrues" under § 6-5-482 when the act complained of results in legal injury to the plaintiff. Grabert v. Lightfoot, 571 So.2d 293, 294 (Ala.1990); Colburn v. Wilson, 570 So.2d 652, 654 (Ala.1990). The statutory limitations period begins to run whether or not the full amount of damages is apparent at the time of the first legal injury. Garrett v. Raytheon Co., 368 So.2d 516, 518 (Ala.1979). When the wrongful act or omission and the resulting legal injury do not occur simultaneously, the cause of action accrues and the limitations period of § 6-5-482 commences when the legal injury occurs. Moon v. Harco Drugs, Inc., 435 So.2d 218, 219 (Ala.1983); Ramey v. Guyton, 394 So.2d 2, 4-5 (Ala.1980).

25
When applying this legal principle to the facts, the Delchamps court concluded:

26
Considering the type of personal injury alleged and the alleged cause of this injury, we must conclude that she may be able to establish that although the implants were placed in her jaw on December 5, 1985, she did not suffer legal injury until December 10, 1991, or some other time within two years of the filing of her complaint. Delchamps is entitled to present evidence establishing the time at which the bone degeneration began.

27

Id.

28
Consequently, we agree with the trial court that the four year period simply has no application. As stated by the district judge during the charge conference, if the statute was treated as a statute of repose, thereby making it an absolute bar for an injured plaintiff to recover damages after the four year period, it would violate Section 45 of the Alabama Constitution. This was clearly stated by the Alabama Supreme Court in Street and is obvious from the holding in Delchamps. See Street, 381 So.2d at 31; see also Delchamps, 642 So.2d at 958 (wherein the implants were inserted on December 5, 1985, and suit was filed more than four years later on June 2, 1992). The district court did not err in denying Aderholt's requested jury charge.

IV. CONCLUSION

29
We AFFIRM the district court's rulings in all respects.

30
AFFIRMED.

Notes:

*
 Honorable Willis B. Hunt, Jr., U.S. District Judge for the Northern District of Georgia, sitting by designation

1
 The district court dismissed the co-defendants, Dr. R.B. Kent, III, and Dr. Richard Stahl, upon a motion by the plaintiff, on February 30, 2000

2
 Hemmoragic pneumonia is an infection that causes bleeding in the lungs

3
 A pulmonary embolism is a blood clot that breaks loose and travels through the lungs and into the heart

4
 A Greenfield filter is an umbrella shaped device that is inserted via a catheter and strategically placed below the renal veins inside the inferior vena cava. All the blood returning from the lower extremities first drains through the inferior vena cava

5
 Pulmonary edema is a condition in which the lungs fill with fluid

6
 Dr. Stroud testified that flash pulmonary edema is almost instantaneous, occurring over a matter of minutes, versus the pulmonary edema McCormick experienced in London, which was gradual

7
 A venagram is a specialized x-ray made with contrast dye

8
 This Court adopted as binding precedent all decisions of the Fifth Circuit handed down prior to October 1, 1981See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).

9
 The district court charged the jury in the alternative in the words of the Alabama statute. In order to find for the plaintiff on this issue, the jury was required to find that the suit was filed within two years of the legal injury or within six months of discovering facts which would lead to discovery of the wrongful conduct

10
 Section 6-5-482(a) states:
"All actions against physicians, surgeons, dentists, medical institutions, or other health care providers for liability, error, mistake, or failure to cure, whether based on contract or tort, must be commenced within two years next after the act, or omission, or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act except, that an error, mistake, act, omission, or failure to cure giving rise to a claim which occurred before September 23, 1975, shall not in any event be barred until the expiration of one year after such date."


People v Proctor (2017 NY Slip Op 08730)

People v Proctor

2017 NY Slip Op 08730

Decided on December 14, 2017

Appellate Division, First Department

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

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

Decided on December 14, 2017

Friedman, J.P., Kahn, Gesmer, Kern, Moulton, JJ.

5214 4299/11

[*1]The People of the State of New York, Respondent,
vAllen Proctor, Defendant-Appellant.

Marianne Karas, Thornwood, for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Megan DeMarco of counsel), for respondent.

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered April 27, 2012, convicting defendant, upon his plea of guilty, of assault in the second degree, and sentencing him, as a second felony offender, to a term of five years, unanimously affirmed.
The court providently exercised its discretion in denying defendant's motion to withdraw his plea. "When a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry rest[s] largely in the discretion of the Judge to whom the motion is made and a hearing will be granted only in rare instances" (People v Brown, 14 NY3d 113, 116 [2010] [internal quotation marks omitted]). Defendant received a full opportunity to present his challenges to the plea.
The plea record shows that defendant knowingly, intelligently, and voluntarily pleaded guilty in exchange for a favorable sentence (see People v Fiumefreddo, 82 NY2d 536, 543 [1993]). The sentencing court had sufficient information to determine that defendant's claims of innocence and ineffective assistance were meritless and warranted neither a hearing nor the assignment of new counsel (see e.g. People v Mangum, 12 AD3d 207 [2004], lv denied 4 NY3d 765 [2005]). In particular, defendant's central claim that he had a viable justification defense was undermined by his admission in his plea allocution that he committed an assault in the course of committing a felony.
We have considered and rejected defendant's remaining claims.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 14, 2017
CLERK


                                    WYNNE A.PAULY,CSR
                                      Official Court Reporter
                                    Denton County Probate Court
                               1450 East McKinney - Second Floor
                                                                                FILED IN
                                       Denton, Texas 76209                2nd COURT OF APPEALS
                                          (940) 349-2142                    FORT WORTH, TEXAS
                                       winniepaulv@att.net                12/19/2017 4:09:25 PM
                                                                              DEBRA SPISAK
                                                                                Clerk
December 19, 2017

Texas Court of Appeals - 2 District
Tim Curry Criminal Justice Center
401 WestBelknap, Suite 9000
Fort Worth, Texas 76196-0211

Re: Reporter's Record
    Chin-Hua Wang vs. Morgan Stanley
    Trial Court Cause No. PR-2016-00111-03
    Appellate Cause No. 02-17-00443OCY

Dear Honorable Justiees:

I am in receipt of your letter dated December 14, 2017 in the above-styled cause notifying me
that this case has been appealed.

I have not received a Request for Reporter's Record or any written request as to which dates
Appellant wants transcribed.

                                               Very Truly Yours,             .        /

                                               Wynne A. Pauly
                                                                                )


                                  NO. 07-11-00340-CV

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                   MARCH 13, 2012

                IN THE INTEREST OF S.M.G. AND H.D.W., CHILDREN

            FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

              NO. 59,060-C; HONORABLE JAMES ANDERSON, JUDGE

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

                               MEMORANDUM OPINION

      In this appeal from an order terminating the parent-child relationship existing

between appellant J.W. and his daughters S.M.G. and H.D.W., appellant asserts the

trial court reversibly erred by failing to appoint counsel to represent him at the

termination hearing.

      Appellee the Texas Department of Family and Protective Services sought relief

including termination of appellant’s parental rights in a petition filed in February 2010.

The case reached final hearing in July 2011.

      In response to appellant’s brief raising a single issue, the Department has filed a

motion which, after notice, we have treated as its appellee’s brief. In it, the Department

notes our opinion in In re J.M., No. 07-11-0339-CV, 2012 Tex. App. Lexis 904
(Tex.App.--Amarillo Feb. 1, 2012, n.p.h.), and based on our holding in that case

concedes the trial court reversibly erred.       After review of the record, we agree the

circumstances presented are sufficiently similar to those in In re J.M. to require reversal

here as well.    Accordingly, we sustain appellant’s issue, reverse the trial court’s

judgment and remand the case.

                                                               Per Curiam

                                             2


284 S.W.3d 57 (2008)
TEXARKANA SCHOOL DISTRICT, Appellant,
v.
Ronnie R. CONNER, Appellee.
No. 07-1068.
Supreme Court of Arkansas.
May 8, 2008.
*58 Friday, Eldredge & Clark, LLP, by: Betty J. Demory, for appellant.
Harrelson, Moore & Giles, LLP, by: Greg Giles, Texarkana, AR, for appellee.
DONALD L. CORBIN, Justice.
The present appeal is before us on a petition for review from a 4-2 decision of the Arkansas Court of Appeals reversing a decision by the Arkansas Workers' Compensation Commission that Appellee Ronnie R. Conner suffered a compensable injury while employed by Appellant Texarkana School District. On appeal, the primary issue to be determined is whether there was substantial evidence to support the Commission's determination that Conner was performing employment services at the time of his injury. Our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(e). We affirm the Commission and, thus, reverse the decision of the court of appeals.
*59 The record reflects that at the time of his accident Conner had been employed as a janitor for the District for over twenty-six years. As part of his employment duties, Conner carried a walkie-talkie and keys to all the locks on the school premises, but he was primarily responsible for emptying trash cans, cleaning floors and bathrooms, and cafeteria cleanup. While Conner was not required to remain on campus for his one-hour lunch break, if he did remain on campus, he was on call and was required to provide assistance if needed.
On September 21, 2004, Conner left the school premises during his lunch break to perform a personal errand. Upon his return, Conner went to park in his usual parking lot but discovered a disabled truck blocking the main entrance to the lot. Conner then went to the back entrance of the lot that is secured by a locked gate. While attempting to unlock the gate, Conner was struck by the gate and pinned under it. As a result, Conner's leg was broken in two places. His injury left him unable to work for seven months.
Conner sought both temporary and permanent disability benefits from the District. The District asserted Conner was not entitled to benefits because he was not performing employment services at the time of his injury. A hearing before an Administrative Law Judge was held on May 24, 2005, to determine whether Conner had sustained a compensable injury. At that hearing, Conner testified about his job duties and that his supervisor issued him a set of keys that unlocked the building's doors, as well as the gates to the parking lot. Conner also testified that he normally eats lunch in the school cafeteria, where he can eat for free, but that if cleanup is needed, he is required to stop his lunch break and immediately tend to the cleanup. Conner admitted that he is not required to remain on the school premises, nor is he paid for his one-hour lunch break. Finally, Conner admitted that it was not part of his specific job duties to open the parking-lot gates and that he had never opened them on any prior occasion.
Following the hearing, the ALJ entered an order dated August 18, 2005, finding that Conner had not sustained a compensable injury, as he was not performing employment services at the time of his injury. The ALJ relied on Conner's testimony that he was returning to work after performing a personal errand, and in all of his years of employment he had never before been responsible for opening the gates at the back of the parking lot.
Conner appealed the ALJ's decision to the full Commission, and the Commission reversed, finding that Conner had been injured while performing employment services. Specifically, the Commission found that Conner had proven that his injury occurred while he was advancing his employer's interest, and stated:
Admittedly, prior to his injury, the claimant had been on a personal errand. However, when his injury happened he had returned to the respondent's property and was attempting to open a gate to obtain access to the respondent's parking lot. We believe the claimant was returning to work at this point and was providing a benefit to his employer in doing so.
We reach that conclusion because the claimant was on-call, and subject to being required to perform services for the respondent any time he was on their property. The claimant testified that he was carrying a walkie talkie which kept him in communication with his superior. He also testified that even on his lunch break, if there was something which arose that needed his attention, he was *60 required to end his break and carry out his job duties.
In addition, the Commission found it significant that Conner was using the locked gate because the normal entrance to the parking lot was blocked by a disabled truck. This fact, according to the Commission, supported a conclusion that Conner was performing a service to the District by allowing access to the parking lot. In so concluding, the Commission relied on the court of appeals' decision in Ray v. University of Arkansas, 66 Ark.App. 177, 990 S.W.2d 558 (1999) (holding that an employee who was injured while on a personal break was performing employment services at the time of her injury because she was required to end her break and assist students if needed).
The District appealed the Commission's decision to the court of appeals, which reversed the Commission's order, concluding that Conner was not providing employment services at the time of his injury. Texarkana Sch. Dist. v. Conner, 100 Ark.App. 100, 264 S.W.3d 579 (2007). Conner sought and was granted review in this court. Upon a petition for review, we consider a case as though it has been originally filed in this court. Cedar Chem. Co. v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008).
In appeals involving claims for workers' compensation, this court views the evidence in a light most favorable to the Commission's decision and affirms that decision if it is supported by substantial evidence. Id.; Wallace v. West Fraser South, Inc., 365 Ark. 68, 225 S.W.3d 361 (2006). Substantial evidence exists if reasonable minds could reach the Commission's conclusion. Cedar Chem., 372 Ark. 233, 273 S.W.3d 473. The issue is not whether the appellate court might have reached a different result from the Commission, but rather whether reasonable minds could reach the result found by the Commission. Wallace, 365 Ark. 68, 225 S.W.3d 361. If so, the appellate court must affirm the Commission's decision. Id.
The sole issue presented to us on appeal is whether Conner was performing employment services at the time of his injury. The District argues that the Commission's decision that Conner was performing employment services at the time of his injury was not supported by substantial evidence. Specifically, the District avers that Conner was returning from a personal errand, was not required to remain on the school's premises, could have parked in a different lot, and that it was not part of his job duties to unlock the gates. Conner counters that the decision of the Commission was supported by substantial evidence that he was performing an employment service at the time of his injury.
This court has repeatedly pointed out that Act 796 of 1993 significantly changed the workers' compensation statutes and the way workers' compensation claims are to be resolved. See Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002) (citing White v. Georgia-Pac. Corp., 339 Ark. 474, 6 S.W.3d 98 (1999)). Now, pursuant to Act 796, we are required to strictly construe the workers' compensation statutes. See Ark.Code Ann. § 11-9-704(c)(3) (Repl.2002).
Act 796 defines a compensable injury as "[a]n accidental injury ... arising out of and in the course of employment." Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp.2003). A compensable injury does not include an "[i]njury which was inflicted upon the employee at a time when employment services were not being performed." Ark. Code Ann. § 11-9-102(4)(B)(iii) (Supp. 2003). Act 796 fails, however, to define the phrase "in the course of employment" or the term "employment services." Wallace, *61 365 Ark. 68, 225 S.W.3d 361; Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). Thus, it falls to this court to define these terms in a manner that neither broadens nor narrows the scope of Act 796. Pifer, 347 Ark. 851, 69 S.W.3d 1.
This court has held several times that an employee is performing "employment services" when he or she "is doing something that is generally required by his or her employer." Wallace, 365 Ark. at 72, 225 S.W.3d at 365 (quoting Pifer, 347 Ark. at 857, 69 S.W.3d at 3-4); see also Collins v. Excel Specialty Prods., 347 Ark. 811, 69 S.W.3d 14 (2002); White, 339 Ark. 474, 6 S.W.3d 98. We use the same test to determine whether an employee was performing employment services as we do when determining whether an employee was acting within the course of employment. Wallace, 365 Ark. 68, 225 S.W.3d 361. Specifically, we have held that the test is whether the injury occurred "within the time and space boundaries of the employment, when the employee [was] carrying out the employer's purpose or advancing the employer's interest directly or indirectly." Id. (quoting White, 339 Ark. at 478, 6 S.W.3d at 100). The critical inquiry is whether the interests of the employer were being directly or indirectly advanced by the employee at the time of the injury. Id. Moreover, the issue of whether an employee was performing employment services within the course of employment depends on the particular facts and circumstances of each case. Id.; see also Moncus v. Billingsley Logging & Am. Ins. Co., 366 Ark. 383, 235 S.W.3d 877 (2006).
It is clear that in a case such as the present one, where an injury occurs outside the time and space boundaries of the employment, the critical inquiry is whether the employer's interests were being advanced, either directly or indirectly. Thus, the pertinent question in the present case is whether the District's interests were advanced by Conner at the time he unlocked the gates and injured himself. The Commission determined that the District's interests were advanced by this action, and we cannot say that there was a lack of substantial evidence to support this conclusion. Specifically, Conner testified that he was attempting to return to work but was only able to access his normal parking area by unlocking the gates at the back entrance. Conner stated that at the time of his injury he was headed to the cafeteria where he typically ate lunch, and any time he would eat in the cafeteria he considered himself to be on call because he was required to attend to his job duties immediately, even if they arose during his lunch break.
It is axiomatic that questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Cedar Chem., 372 Ark. 233, 273 S.W.3d 473. As such, we are foreclosed from determining the credibility and weight to be accorded to each witness's testimony. Id.; Arbaugh v. AG Processing, Inc., 360 Ark. 491, 202 S.W.3d 519 (2005). Here, there was no testimony presented to contradict that of Conner's that he was on call once he returned to the District's premises, and the Commission found him to be a credible witness. Moreover, the evidence demonstrated that the main entrance to this particular lot was blocked. In attempting to unlock the gate and provide access to the back entrance, Conner was advancing his employer's interests by allowing other employees to enter or exit this parking lot, even if he was the only employee attempting to access the lot at the exact time of his accident. Accordingly, we must affirm the Commission's *62 decision as reasonable minds could have reached the same conclusion as that of the Commission.
Commission affirmed; court of appeals reversed.


554 F.2d 1200
180 U.S.App.D.C. 341, 1977-2 Trade Cases   61,571
REA EXPRESS, INC., on its own behalf and on behalf ofcertain of its former employees now retired, Appellant,v.The TRAVELERS INSURANCE COMPANY et al.
No. 76-1450.
United States Court of Appeals,District of Columbia Circuit.
Argued March 29, 1977.Decided April 21, 1977.

Arthur M. Wisehart, New York City, with whom S. Chesterfield Oppenheim, Washington, D. C., was on the brief, for appellant.  Frederic L. Wood, Washington, D. C., also entered an appearance for appellant.
Edwin M. Zimmerman, Washington, D. C., with whom William D. Iverson, Washington, D. C., was on the brief, for railroad appellees The Atchison, Topeka & Santa Fe Ry. Co. et al.; also argued on behalf of all other appellees.
Michael M. Maney, William Piel, Jr., and Mark I. Fishman, New York City, were on the brief for appellee The Travelers Ins. Co.
Francis M. Shea, Richard T. Conway, and John D. Aldock, Washington, D. C., were on the brief for appellees National Railway Labor Conference and Eastern Carriers Conference Committee.
Before BAZELON, Chief Judge, and WRIGHT and ROBB, Circuit Judges.
PER CURIAM:

1
The background and facts relating to this case are adequately stated in the opinion of the District Court, see REA Express, Inc. v. Travelers Ins. Co., 406 F.Supp. 1389 (D.D.C.1976), so we shall not repeat them here.  We agree with that opinion insofar as it holds that appellant's federal claims are foreclosed by Bangor Punta Operations, Inc. v. Bangor & Aroostook R. Co., 417 U.S. 703, 94 S.Ct. 2578, 41 L.Ed.2d 418 (1974).  Consequently, we affirm that part of the District Court's judgment which dismissed those claims with prejudice.

2
The District Court also dismissed appellant's pendent state claims with prejudice on the basis that Delaware law would govern and that Delaware precedents conformed to the doctrine adopted in Bangor Punta.  See 406 F.Supp. at 1394.  However, the issues involved in this case are novel and the trial court found them "troubling."  Id. at 1395.  In these circumstances, the admonition of the Supreme Court in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), should have been followed:

3
Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law.  Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.

4
Id. at 726, 86 S.Ct. at 1139 (footnotes omitted).  Following Gibbs, we affirm the dismissal of appellant's state claims, but require their dismissal to be without prejudice.1

5
It is our view that the insurance claims2 of former employees of appellant are not part of this litigation, so nothing herein or in the District Court's opinion should be read as affecting those claims.  Nor are the claims of creditors of the bankrupt appellant before this court.3  Consequently any claims they may have against appellees herein also remain unaffected by our judgment and the judgment of the District Court.

6
So ordered.

1
 Appellant agrees that the state claims should be dismissed if we affirm the District Court's disposition of the federal claims.  It only contests the dismissal with prejudice

2
 See 406 F.Supp. at 1392 & 1395

3
 See id. at 1395


               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                            No. 02-50785
                        Conference Calendar

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

LUIS GOMEZ-HERNANDEZ,

                                         Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. A-02-CR-57-ALL-JN
                       --------------------
                         December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Luis Gomez-Hernandez appeals the sentence imposed following

his guilty plea conviction of being found in the United States

after removal in violation of 8 U.S.C. § 1326.   Gomez-Hernandez

complains that his sentence was improperly enhanced pursuant to

8 U.S.C. § 1326(b)(2) based on his prior removal following an

aggravated felony conviction.   Gomez-Hernandez argues that the

sentencing provision is unconstitutional because it permitted the

sentencing judge to find, under a preponderance of the evidence

standard, a fact which increased the statutory maximum sentence

     *
        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. 02-50785
                                 -2-

to which he otherwise would have been exposed.    Gomez-Hernandez

thus contends that his sentence is invalid and argues that it

should not exceed the two-year maximum term of imprisonment

prescribed in 8 U.S.C. § 1326(a).

       In Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998), the Supreme Court held that the enhanced penalties in

8 U.S.C. § 1326(b) are sentencing provisions, not elements of

separate offenses.    The Court further held that the sentencing

provisions do not violate the Due Process Clause.     Id. at 239-47.

Gomez-Hernandez acknowledges that his argument is foreclosed by

Almendarez-Torres, but asserts that the decision has been cast

into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

He seeks to preserve his argument for further review.

       Apprendi did not overrule Almendarez-Torres.   See Apprendi,

530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000).    This court must follow Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.”    Dabeit, 231 F.3d at 984 (internal quotation marks and

citation omitted).    The judgment of the district court is

AFFIRMED.

       The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief.    In its motion, the Government asks

that an appellee’s brief not be required.    The motion is GRANTED.

       AFFIRMED; MOTION GRANTED.


124 A.2d 242 (1956)
C. Raymond ADAMS et al.
v.
ZONING BOARD OF REVIEW OF THE CITY OF PROVIDENCE.
M. P. No. 1151.
Supreme Court of Rhode Island.
June 28, 1956.
Edwards & Angell, Edward F. Hindle, Beverly Glenn Long, James F. Bartley, for petitioners.
William E. McCabe, City Solicitor, for respondent.
Bernard B. Abedon, Walter J. Hennessey, for applicant.
ANDREWS, Justice.
This is a petition for a writ of certiorari brought under general laws 1938, chapter 342, § 8, to review a resolution and decision of the zoning board of review of the city of Providence granting the application of Samuel P. Lazarus for an exception under the zoning ordinance of that city to enable him to construct three apartment buildings located in a one-family dwelling district. Pursuant to the writ, the respondent board has certified to us the records of the proceedings relative to such application.
It appears therefrom that after a hearing and receipt of letters from landowners in the district, the board granted the application on certain conditions that have not been questioned in this proceeding. The application for an exception is made under article II, sec. 27, par. 7, subpars. (a) and (b), of the zoning ordinance relating to group housing, which read as follows:
"(a) Land Deemed One Lot  Any parcel of land including any interior streets and recreation areas which are occupied by a group of dwellings designed as a unit may be deemed to be one lot.
(b) Application of Regulations  Where group housing consists of two or more buildings to be constructed on a plat of ground of at least 40,000 square feet not subdivided into the customary streets and lots, and which will not be so subdivided, or where the existing or contemplated street and lot layout make it impracticable to apply the requirements of this Ordinance to the individual building units in such group housing, the application of such requirements to such group housing may be varied in a manner that will be in harmony with the character of the neighborhood, and that will insure a standard of open space no lower *243 than permitted by this Ordinance and a lot area per family not more than 20% less than so required by this Ordinance in the zone in which the proposed group housing is to be located * * *."
The petitioners claim that the area requirements of this section were not satisfied. The board does not dispute that the area requirement for a one-family dwelling in this district is 6,000 square feet and that 20 per cent less than that permitted in group housing is 4,800 square feet. In fact the board stated in its brief: "In granting the application the Board took cognizance of Section 27, Clause 7 (b) whereby the necessary area per family was reduced from 6000 square feet to 4800 square feet. * * * The total area being 167,782 square feet, this divided by 4800 gives as a quotient 34 lots and 4582 feet remaining." In this situation the case turns upon the construction of the application and the permit to determine how many dwelling units were asked for and how many were granted. The board claims that it was asked to grant and did grant a permit for thirty-four dwelling units. The petitioners claim that the application was for thirty-five dwelling units and the permit was for that number.
Paragraphs 7, 9 and 11 of the application which are set up in the form of question and answer read as follows:
"7. Size of proposed building 3  2 story buildings comprising a total of 34 units plus 1 Supt. unit"
"9. Proposed use of premises Apartment units for 34 families and superintendent"
"11. Number of families for which building is to be arranged 35"
The pertinent parts of the resolution granting the application read: "Resolved: That the Zoning Board of Review does hereby make an exception and grant the application of Samuel P. Lazarus pursuant to the provisions of Paragraph Seven, subdivision b of Section 27 and Sections 91 and 92 of the Zoning Ordinances, for permission to erect three two-story buildings to be used for thirty-four apartment units in accordance with the application as filed * * *." (italics ours)
The plans disclose that there are two areas marked: "Area Proposed For Caretaker's Apt." on "Basement Plan Bldgs A & B," but as nothing was said in the briefs or arguments about there being apartments for two superintendents, we shall treat those two as one. We are satisfied that so treated they at least constitute one apartment or dwelling unit within the contemplation of the ordinance. The above-quoted questions and answers leave no doubt in our minds that the application was for thirty-five apartments or dwelling units. It is equally clear that the application was granted for that number, since it was granted "as filed."
Each of the two buildings showing apartments to be rented also contains in the basement a superintendent's apartment. There is no warrant for calling the basement of a house an accessory building, as argued by the board. In view of our decision that the superintendent's apartment is a dwelling unit, it follows that a unit of this kind requires 4,800 square feet; that such area was not available; and therefore that the permit was improperly issued.
The petition for certiorari is granted, the decision of the respondent board is quashed, and the records in the case which have been certified to this court are ordered sent back to the board with our decision endorsed thereon.


                                                                                Opinions of the United
2009 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

6-5-2009

USA v. Warren
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4127

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"USA v. Warren" (2009). 2009 Decisions. Paper 1229.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1229

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      No. 07-4127
                                      __________

                           UNITED STATES OF AMERICA

                                            v.

                                DARRELL E. WARREN,

                                                       Appellant.

                     On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                                 (D. C. No. 06-cr-00350-2)
                     District Judge: Honorable William W. Caldwell

                       Submitted under Third Circuit LAR 34.1(a)
                                  on February 6, 2009

                     Before: RENDELL and ROTH, Circuit Judges
                             and HAYDEN*, District Judge

                              (Opinion filed: June 5, 2009)

                                      OPINION

      *Honorable Katharine S. Hayden, United States District Judge for the District of
New Jersey, sitting by designation.
ROTH, Circuit Judge:

       Darrell E. Warren pled guilty to violating 21 U.S.C. § 846 (conspiracy to distribute

and possession with intent to distribute cocaine hydrochloride and 50 grams and more of

cocaine base). Warren received a 168-month prison sentence, a $1,500 fine, a $100

special assessment, and a five-year period of supervised release. He timely appealed to

this Court, and while the appeal was pending, he filed a petition for resentencing under 18

U.S.C. § 3582(c)(2) with the District Court. The District Court stayed the motion pending

this appeal. We will affirm the judgment of conviction, and we will remand this case to

the District Court to consider the merits of his § 3582(c)(2) motion.

       In the appeal of his conviction, Warren suggests that his plea was not entered into

knowingly, intelligently, and voluntarily because he thought he was pleading guilty to

Count III of the original indictment rather than Count IV of the superseding indictment.

This claim is untenable. It is clear from the transcript of the sentencing hearing that his

plea was entered in accordance with the applicable constitutional requirements of Boykin

v. Alabama, 395 U.S. 238 (1969), and the requirements of Federal Rule of Criminal

Procedure 11(b).

       Insofar as Warren claims that his appointed counsel coerced him into accepting the

plea and that he was never shown the superseding indictment, this claim is not

appropriately included in this appeal. To the extent that Warren may be alleging

                                              2
ineffective assistance of counsel, that claim should be made in a petition for post-

conviction relief.

         In connection with his sentencing, Warren contends his criminal history points were

calculated incorrectly in the pre-sentencing report. He asserts he was assigned three

criminal history points each for two prior convictions that resulted in sentences that did not

exceed one year and one month of imprisonment. See U.S.S.G. § 4A1.1(a). Although

Warren is correct that the two prior sentences initially did not exceed one year and one

month of imprisonment, they ultimately exceeded one year and one month of

imprisonment because U.S.S.G. § 4A1.2(k) directs the original term of imprisonment to be

added to any term of imprisonment imposed upon revocation of probation or parole, both

of which occurred. As such, the sentences were greater than one year and one month.

         Finally, Warren claims he is entitled to resentencing under § 3582(c)(2) because of

the change in the Sentencing Guidelines to correct the previous disparity between crack

and cocaine sentencing. This claim does have merit, as the government recognizes in its

brief.

         Accordingly, we will affirm Warren’s judgment of conviction and we will remand

this case to the District Court for consideration of his motion for resentencing under §

3582(c)(2).

                                               3


50 So.3d 1003 (2011)
TREJO
v.
STATE.
No. 2008-CT-02133-SCT.
Supreme Court of Mississippi.
January 20, 2011.
Petition for writ of certiorari granted.


                                                             [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                               JAN 05, 2009
                            No. 08-11307                     THOMAS K. KAHN
                        Non-Argument Calendar                    CLERK
                      ________________________

                        Agency Nos. A97-629-487
                             A97-629-488

JORGE ELIAS AVILA-REYES,
FLOR MARIA ANZOLA,

                                                                    Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.

                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                       _________________________

                            (January 5, 2009)

Before ANDERSON, BLACK and HULL, Circuit Judges.

PER CURIAM:
       Jorge Elias Avila-Reyes,1 a native of Colombia and citizen of both Colombia

and Venezuela, through counsel, seeks review of the Board of Immigration

Appeals’ (BIA’s) decision affirming the Immigration Judge’s (IJ’s) denial of his

application for asylum from both Colombia and Venezuela, and withholding of

removal, 8 U.S.C. §§ 1158 and 1231(b)(3).

       Avila-Reyes asserts the IJ erred in denying his application for asylum and

withholding of removal because he showed a well-founded fear of persecution on

account of his political opinion through his testimony that the Bolivarian Circles

threatened and attacked him for supporting the Democratic Action Party, which

opposed Venezuela’s President Chavez. He contends that his fear of future

persecution is reasonable based on an imputed political opinion that the Bolivarian

Circles possess, believing he opposes Chavez. Further, he asserts the IJ applied a

heightened standard in reviewing his application, thus violating INS v. Cardoza-

Fonseca, 107 S. Ct. 1207 (1987).

       1
           Because Avila-Reyes listed his wife, Flor Maria Anzola, as a derivative applicant, and
the facts supporting her claim to asylum are the same as his, this opinion refers to only Avila-
Reyes with respect to the asylum claim. See 8 U.S.C. § 1158(b)(3)(A); see also Delgado v.
United States Att’y Gen., 487 F.3d 855, 862 (11th Cir. 2007) (holding that, unlike the asylum
statute, the withholding of removal statute does not create derivative rights for the spouse of a
petitioner).
                                                 2
                                          I.

       “When an appellant fails to offer argument on an issue, that issue is

abandoned.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.

2005). A passing reference to an issue in a brief is insufficient to properly raise

that issue. Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th

Cir. 1989).

       Although Avila-Reyes mentions in his “statement of the case” that he lived

in Colombia, and he generally argues the IJ erred in finding that he was not eligible

for asylum, he does not explain how he suffered past persecution or has a well-

founded fear of persecution in Colombia. Furthermore, Avila-Reyes does not

sufficiently challenge the BIA’s and IJ’s denial of relief under the United Nations

Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment

or Punishment (CAT), 8 C.F.R. § 208.16(c), because he mentions it in passing in

his brief, but does not offer an argument on the issue. By not raising this issue in

his initial brief, he has abandoned any argument that the BIA erred by denying the

request for asylum from Colombia or CAT relief. See Sepulveda, 401 F.3d at 1228

n.2.

                                          II.

       We review only the BIA’s decision when the BIA issues a separate decision,

“except to the extent that [the BIA] expressly adopts the IJ’s opinion.” Reyes-
                                           3
Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004) (quotations

omitted). “Insofar as the Board adopts the IJ’s reasoning, we will review the IJ’s

decision as well.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). In

this case, the BIA wrote a separate decision and adopted the IJ’s opinion.

Therefore, we review both decisions. See id.

      We review legal conclusions de novo, and factual findings under the

substantial evidence test. Forgue v. United States Att’y Gen., 401 F.3d 1282, 1286

(11th Cir. 2005) (factual determinations); Mohammed v. Ashcroft, 261 F.3d 1244,

1247 (11th Cir. 2001) (legal conclusions). Under the substantial evidence test, we

should “affirm the IJ’s decision if it is supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” Forgue, 401 F.3d at

1286 (quotations and alteration omitted). The substantial evidence test is

“deferential” and does not allow “re-weigh[ing] the evidence from scratch.”

Mazariegos v. United States Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001)

(quotations omitted). To reverse factual findings, “we must find that the record not

only supports reversal, but compels it.” Mendoza v. United States Att’y Gen.,

327 F.3d 1283, 1287 (11th Cir. 2003).

      An alien who arrives in, or is present in, the United States may apply for

asylum. 8 U.S.C. § 1158(a)(1). The Attorney General or Secretary of Homeland

                                           4
Security has discretion to grant asylum if the alien meets the INA’s definition of a

“refugee.” Id. § 1158(b)(1). A “refugee” is defined in the INA as

      any person who is outside any country of such person’s nationality . . .
      and who is unable or unwilling to return to, and is unable or unwilling
      to avail himself or herself of the protection of, that country because of
      persecution or a well-founded fear of persecution on account of race,
      religion, nationality, membership in a particular social group, or
      political opinion . . . .

Id. § 1101(a)(42)(A). The asylum applicant carries the burden of proving statutory

“refugee” status. Al Najjar, 257 F.3d at 1284.

      To establish asylum eligibility based on political opinion or any other

protected ground, the alien must, with specific credible evidence, establish (1) past

persecution on account of a political opinion or any other protected ground, or (2) a

“well-founded fear” that the statutorily listed factor will cause such persecution.

8 C.F.R. § 208.13(b). “The testimony of the applicant, if credible, may be

sufficient to sustain the burden of proof without corroboration.” Id. § 208.13(a).

      Past persecution is established when the applicant shows that (1) he was

persecuted, and (2) that the persecution was on account of a protected ground.

Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006). We recognize that

“‘persecution’ is an ‘extreme concept,’ requiring ‘more than a few isolated

incidents of verbal harassment or intimidation,’ and that ‘[m]ere harassment does

not amount to persecution.’” Sepulveda, 401 F.3d at 1231 (citation omitted). We

                                           5
have held menacing telephone calls and threats to the alien and family members do

not rise to the level of past persecution that would compel reversal of an IJ’s

decision. Id. Further, even though an attack may permit the conclusion that it was

directed on account of the alien’s political activity, if the evidence does not compel

such a conclusion, then we will not reverse the IJ’s decision. Id.

      An alien who has not shown past persecution may still be entitled to asylum

or withholding of removal if he can demonstrate a future threat in his country to his

life or freedom on a protected ground in his country. 8 C.F.R. § 208.13(b)(2). To

establish a well-founded fear, an applicant must demonstrate that his fear of future

persecution is “subjectively genuine and objectively reasonable.” Silva, 448 F.3d

at 1236. “The subjective component is generally satisfied by the applicant’s

credible testimony that he or she genuinely fears persecution.” Al Najjar, 257 F.3d

at 1289. “[T]he objective prong can be fulfilled either by establishing past

persecution or that he or she has a ‘good reason to fear future persecution.’” Id.

(citation omitted).

      The Supreme Court, in Cardoza-Fonseca, held that, in order to show a well-

founded fear of persecution, a petitioner need not prove that it is “more likely than

not” that he will be persecuted in his country. Cardoza-Fonseca, 107 S. Ct. at

1213. The Supreme Court noted that “Congress did not intend to restrict eligibility

                                           6
for [asylum only] to those who could prove that it is more likely than not that they

will be persecuted if deported.” Id. at 1222.

      To qualify for withholding of removal under the INA, an alien must show

that if he returned to his country, the alien’s life or freedom would be threatened on

account of race, religion, nationality, membership in a particular social group, or

political opinion. 8 U.S.C. § 1231(b)(3). “An alien bears the burden of

demonstrating that he more-likely-than-not would be persecuted or tortured upon

his return to the country in question.” Mendoza, 327 F.3d at 1287. Generally,

when an alien fails to meet the “well-founded fear” standard for establishing

asylum eligibility, the alien cannot establish the higher burden for withholding of

removal. Al Najjar, 257 F.3d at 1292-93.

      Avila-Reyes relied on the following to establish past persecution in

Venezuela: (1) threats to him and his son; (2) an attempted attack on his son;

(3) his office being vandalized; (4) an attack on him; and (5) the murder of a

political activist. Substantial evidence supports the BIA’s and IJ’s conclusion that

Avila-Reyes failed to meet his burden of proof for asylum from Venezuela. First,

verbal harassment and intimidation do not rise to the level of persecution. See

Sepulveda, 401 F.3d at 1231. Although the evidence may permit a conclusion that

the 2002 attack on him was directed on account of his political activity, it does not

compel such a conclusion sufficient to overturn the IJ’s and BIA’s decisions, as his
                                           7
assailants were never identified. See id. Additionally, there was no evidence

connecting the political opinions of Avila-Reyes and Quidigwa (an acquaintance

who was murdered allegedly for his political activities), as Avila-Reyes admitted

that he was not a political “activist,” and the record does not indicate that

Quidigwa was a member of the Democratic Action Party.

      Additionally, even if Avila-Reyes subjectively feared returning to

Venezuela, his fear was not objectively reasonable based on the record evidence

because he did not show a “good reason to fear future persecution.” See

Sepulveda, 401 F.3d at 1232; Al Najjar, 257 F.3d at 1289. Avila-Reyes returned to

Venezuela from the United States in 2001 after receiving threatening telephone

calls and his son being almost attacked. Nothing in the record indicates the

Bolivarian Circles knew, or had any interest in, his political beliefs, except Avila-

Reyes’s own speculation. Thus, the evidence does not compel the finding that

Avila-Reyes suffered past persecution on account of his political opinion or had a

well-founded fear of future persecution.

      As to Avila-Reyes’s argument the IJ violated Cardoza-Fonseca by applying

a heightened standard in reviewing his asylum application, the record does not

support that the BIA or IJ applied an incorrect standard in adjudicating Avila-

Reyes’s claim. Finally, because Avila-Reyes failed to establish past persecution or

a well-founded fear of persecution on account of political opinion or any other
                                           8
protected grounds to support his asylum claim, there are no grounds for reversing

the determination that he is not entitled to withholding of removal under the INA.

See Al Najjar, 257 F.3d at 1292-93.

      Accordingly, we deny Avila-Reyes’s petition for review.

      PETITION DENIED.

                                         9